LITIGATION

Your very first step should be to hire an attorney. You should consult with an attorney in order to evaluate the case being brought against you. This consultation should help you to comprehend the strength of the case brought against you, which defences are available to you, the extent of your exposure, whether anyone else may be held liable in addition to you and the possibilities of settling the claim. Once you understand your options you can then decide how you would like to proceed.

Depending on the nature of the claim, immediate action may be required. Your attorney should then file an appearance/response on your behalf.

Before filing a lawsuit, you should consider the following questions:

• • What are your alternatives to filing a lawsuit?
• • What are your chances of success?
• • What damages have you suffered?
• • What is your ideal outcome?
• • What would you like the party/parties you are suing to do?
• • What is your deadline for filing the lawsuit?
• .

Answering these questions will strengthen your chances of success. It will also help you to avoid the cost and aggravation of a needless lawsuit. While you are not required to consult with an attorney, the answers to these questions are often legally complex and we would recommend consulting an attorney in order to answer them.

You can seek a second opinion from another attorney. If you choose to do this, you should explain to the new lawyer who your current attorney is and what is making you uncomfortable. Everything you tell your lawyer is protected by lawyer-client privilege and will not be revealed to anyone, including your current lawyer.

Seeking a second opinion may help you to decide what you can or should do about your concerns and to understand whether your file is being properly handled. Recommendations may include: switching attorneys, staying with attorneys, mentioning your concerns to your attorney and other options. Regardless of the recommendation you receive, seeking a second opinion may help you to feel more confident in how your file should be handled and whether you are going in the right direction.

Depending on the nature of the judgment, it may be possible to have the judgment retracted or appealed. If you decide to do this, you must act quickly since the delays for retracting or appealing a judgment are extremely short. However, beforehand you should consider the following:

• • The costs associated with an appeal
• • Your chances of success
• • The amounts at stake
• .

These factors should help you to decide whether it is beneficial to go forward with an appeal or not.

Additionally, if you wish to engage a different attorney for your appeal than the one which you had for the original trial you must contact the other attorney ASAP because the filing delays are very short. Due to this short delay, you can also have your current lawyer file the initial documents while you look for another lawyer – though this situation is far from preferable.

The delays for an appeal are extremely short so you must decide quickly whether you want to appeal or not. To that end, consider the following questions:

• • What are your chances of success on appeal?
• • What is the likelihood of the other party/parties appealing?
• • What are the risks associated with other party/parties appealing?
• • What are the costs of an appeal?
• • What other amounts may be at stake?
• .

If you wish to engage another attorney, it is important to contact another attorney ASAP because the filing delays are very short. Due to this short delay, you can also have your current lawyer file the initial documents while you look for another lawyer – though this situation is far from preferable.

Litigation uses the Courts to resolve disputes. ADR involves a variety of methods outside the Court to resolve disputes. These methods may include:

• • Dispute prevention
• • Negotiation
• • Mediation
• • Arbitration
• • Collaborative law
• • Conciliation
• • Mediation-Arbitration
• .

The New Code of Civil Procedure requires all parties to consider all ADR options before going to Court and litigating. If no ADR method is possible, the parties still have the option to go to Court and litigate.

We recommend seeing if at least one of these methods can work before going to Court. Many of these methods can help our clients avoid the significant costs, delays, and wasted time associated with going to Court. However, these methods are not guaranteed to work in every case. For this reason, we recommend that clients see if there is an ADR method that works for them and that can be of use to resolve the dispute.

Basically, a demand is when a Plaintiff asks for something from the Court. There are several different types of demands. A Plaintiff can seek that a Defendant be ordered to pay them a certain amount of money. A Plaintiff can also seek that a Defendant be ordered to do or not do something (referred to as an injunction). These are a few examples of some of the demands that a Plaintiff can make. Ultimately, it is important to remember that the type of demand required and the procedure that applies will vary according to what the demand is asking for. It is also important to note that Courts have different divisions for certain types of demands (ex. family law, commercial law).

Yes. This is commonly referred to as a Cross-Claim.

A Plaintiff has the right to sue a Defendant and demand that a Court order the Defendant to do a variety of things. This includes, but is not limited to, the following:

• • Payment of an amount of money
• • To do something specific
• • To abstain from doing something specific
• .

A Defendant has every right to make a defence against all of these demands and to prove that they are unfounded. However, a Defendant is also entitled to make allegations and claims of their own and ask that the Court order the Plaintiff to do a variety of things. This includes, but is not limited to, the following:

• • Paying the Defendant an amount of money
• • To do something specific
• • To abstain from doing something specific
• .

Defendants should not file unfounded cross-claims as a form of revenge for being sued. This is an abuse of procedure and may have severe consequences.

Additionally, Plaintiffs do not generally have any additional rights simply because they were the first to sue.

Jurisdiction is the authority to hear a case. Jurisdiction has a number of levels which include, but are not limited to: federal, provincial, municipal and judicial. In order for your case to have a real chance at success it must be filed in a Court which has the jurisdiction to hear it.

In order to file a demand before a Court in the province of Québec, the Courts of the province of Québec must have the authority to hear the case. The specific Court in which the demand was filed must also have the authority to hear the case and the judicial district where the demand was filed must have the authority. A demand filed before a Court which is not entitled to hear it has an extremely poor chance of success.

Prescription is when a person acquires their right or has their right removed (extinguished) as a result of time passing.

If a person files their lawsuit after the prescription deadline, their claim will almost never be successful even if the claim is one hundred percent legitimate because their right has been extinguished. However, there is the possibility of successfully demonstrating that a person should not have the prescription deadline applied against their particular circumstances. Notwithstanding, exceptions are extremely rare and it is vitally important to file a claim before the prescription deadline in order to avoid losing it.

Res judicata means “the thing which has already been judged”. A new claim cannot be made for a case which has the same parties, facts and claim when the case has already been decided. However, this rule does not prevent any party from appealing a judgment.

An abuse of procedure is when a party uses the judicial process in a manner that is excessive or unreasonable. This is determined on a case-by-case basis and is very particular to the circumstances of any given case. It is important to remember that not every party who is not successful in Court has committed an abuse of procedure. Examples of an abuse of procedure might include, but are not limited to, the following:

• • Deliberately filing several motions that are useless simply to force another party to spend money
• • Wrongfully suing someone as a strategy to prevent them from expressing their opinion on public issues (SLAPP suit)
• • Filing a lawsuit or a defence that is clearly and intentionally frivolous

An appeal is a remedy against a judgment. Once a judgment has been rendered, any party that is affected by it and is dissatisfied may appeal the judgment if appeals are permitted. If the appeal is permitted, the party must file the appeal within the required delay. In some cases, appeals are only permitted with the permission of the Court of Appeal. Under these circumstances, the party who wishes to appeal must request permission within the required delay.

It is important to note that in certain circumstances where a party was unaware of a proceeding or unable to participate in the proceeding, the remedy they may wish to take is a demand to have the judgment revoked by the court that rendered it. This is different from an appeal. Since the delays for appealing or revoking a judgment are so short and the issues are often quite complex, a party who finds a judgment unfavourable to them should obtain legal advice immediately. This way, the party can find out what their options are and what the recommended course of action is.