CAN I CHOOSE WHO I WANT TO SUE?
When multiple parties come together to raise a plethora of claims in one legal proceeding, the matter comes within the purview of rules 5 and 6 of the Rules of Civil Procedure (Rules),which includes the joinder of multiple parties and multiple claims.
Before taking up the notion of joinder, it is necessary to differentiate between actions and judgments in rem, (“in the subject”) and actions and judgments in personam (“in person”). When judgment is sought against a person involving his or her personal rights, with the court getting jurisdiction over the defendant personally instead of over the defendant’s property, it is an action in personam. As compared to this, an action in rem is a proceeding which determines a right in specific property against all the world (in theory), and is equally binding on everyone, whether one is a party to the proceeding or not. In Canadian law, purely in rem actions are essentially those of admiralty. Examples of quasi in rem actions are an adjudication on the status of the subject matter of the litigation, such as an adjudication in bankruptcy, a declaration of mental deficiency, a judgment as to the validity of a patent, a divorce and nullity of marriage, and a grant of administration, to name a few. In matters like these, the public is assumed to have an interest beyond the purely private interests of the parties.
Though a person commencing a legal proceeding has the right to decide which persons he or she wishes to name as parties, there are instances when either the Rules or the substantive law require that certain persons be named.
To enable the court to adjudicate effectively and completely, all the persons whose presence are required on the issues should be made a party to any legal proceeding (rule 5.03(1)). Exceptions to make certain other persons parties to a proceeding are at the option of the plaintiff/applicant, under several general propositions, like, e. g., a person cannot be both a plaintiff and a defendant in the same action, even if acting in different capacities.
It is also up to the court to order that any person who ought to have been joined as a party or whose presence as a party is necessary to enable the court to adjudicate effectively and completely on the issues in the proceeding, should be added as a party (rule 5.03(4)). Having regard to these principles, a plaintiff has the option of deciding who should be sued and a defendant will generally not be added against the plaintiff’s wishes.
Rule 5.03 delineates the circumstances in which persons are “necessary parties” to a proceeding:
- Where the presence of the person is necessary to enable the court to adjudicate effectively and completely on the issues in a proceeding; and
- Where the plaintiff / applicant claims relief to which any other person is jointly entitled, in which case each person so entitled shall be made a party to the proceeding.
Permissive joinder means the circumstances, explained in rule 5.02, when it is permissible to have multiple plaintiffs/applicants or multiple defendants/respondents. Rule 5.02 is of two parts, the first part has three sub-parts while the second, five, each of them elaborating on the circumstances mentioned before.
Curative provisions are given in rules 5.03 and 5.04 and relate to the problems of misjoinder or non-joinder of parties. The court may order that any person who ought to have been joined as a party, or whose presence as a party is necessary to enable the court to adjudicate effectively and completely on the issues, must be added as a party (rule r. 5.03(4)). There is no question of a proceeding to be defeated by reason of misjoinder or non-joinder of any party. Admittedly, a mistake as to joinder of parties will necessarily cause trouble, expense, and delay, but the court’s power in many of these aspects is discretionary. Also, the court may refuse to oblige because such an amendment would deprive a defendant of the defence of a limitation period. It is therefore necessary to keep in mind that this rule is not a way to get around a missed limitation period. Moreover, sub-section 21(1) of the new Limitations Act, specifically prohibits it.
Jointly and Severally
For Proceedings in contract, to determine if a person is a necessary or proper party, the contract sued upon is to be checked, which could be joint, several, or joint and several. Persons may join in the making of the same promises as a unit; severally (i.e., separately), with each one individually making the same promise to do the same act; or both jointly and severally, promising both as a unit and individually. It may so happen, that there is more than one promisee. If so, the contract is to be made in favour of those promisees either jointly to them as a unit, or to each one of them individually. Likewise, for a Joint contract, there are three separate provisions.
With regard to Proceedings in tort(suffered damages), under common law, where several persons were joint tortfeasors, the rules are:
- The plaintiff could sue as many (or as few) of them as heshe wished;
- The plaintiff could not be compelled to add as a defendant any person whom they did not wish to sue;
- There was no contribution between joint tortfeasors; (
- (and three more such provisions…)
The Negligence Act brought about changes, like a plaintiff’s recovery can be reduced due to their own contributory negligence (section 3); there can be contribution between joint tortfeasors, or between two or more persons whose fault or neglect caused or contributed to the plaintiff’s damages (section 2); a defendant can commence a third party proceeding against a tortfeasor or indemnifier not included in the main claim but should have been (section 5) and so on.
Then there is relief against joinder, intervention as a friend of the court, consolidation and things like that. Sueing should not be done without proper representation. Call the lawyers at Levy Zavet PC for all your litigation needs to sue.