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WHAT TO DO BEFORE YOU SUE!

Some mandatory considerations prior to suing are:

  1. If a demand has to be made before commencing an action;
  2. If law/legislation requires a notice before an action can be started;
  3. If there is a limitation period within which the action should be commenced;
  4. If there is any claim for interest; and
  5. What is the appropriate manner and forum for proceeding.

Demand Before Action

There are instances, when a legal action brought before a demand is made has been considered premature.  There needs to be an “accrual” of the cause of action. In other-words, there needs to be enough merit, logically and reasonably, to use the courts in order to resolve the dispute or seek recourse.

As would be seen in the following examples, the right to commence a legal proceeding is contingent upon a demand being made first:

  1. Someone agreed to pay on demand, e.g., on a promiste as a surety; a demand must be made before an action can be brought.
  2. X has consented to indemnify Y in the event of a damage, which has taken place. Y first has to make demands from the perpetrator before looking to X for indemnification.  Only then there can be a legal action.
  3. Demand to obtain the return of goods held by a bailee, unless the property was wrongfully taken out of the possession of the claimant.
  4. Demand for payment for a bill of exchange or promissory note is necessary first, so as to obtain recourse against the endorsers or, in the case of a bill, against the drawer.
  5. If a cheque has bounced, it is essential to show the cheque in order to prove its dishonour (unless excused by section 91 of the Bills of Exchange Act). Furthermore, the plaintiff  can only act  until the cheque has been presented for payment at the bank on which it was drawn and dishonoured for non-payment.  Hence, even though you know the cheque will bounce, you must first attempt to deposit and clear it.

There are statutes requiring that a demand be made before a RIGHT to commence an action arises. For instance, section 2 of the Solicitors Act requires that a solicitor wait at least one month after delivery of his or her bill for payment, before commencing an action for recovery of fees, charges, or disbursements.

Notice Required By Statute

As shown below, several statutes require notice to be given before an action can be brought:

According to the Creditors’ Relief Act, sub-sections 32(3), 32(5) and 32(6), any person affected by a proposed scheme of distribution to execution creditors (those who won a legal claim and obtained judgment for monies), of monies in the hands of the sheriff (after seizure and sale), may send written notice contesting the scheme and the grounds for the objection within 10 days of the posting of the list of creditors. After serving the notice of objection, the contestant, within eight days therefrom should apply to the judge for an order adjudicating upon the matter in dispute.

Under the Expropriations Act, sub-sections 10(1) and 10(2), the registered owner of lands subject to a plan for expropriation can ask for compensation by serving notice in writing upon the expropriating authority (usually a government/municipal body) within 30 days of the receipt of the notice of expropriation.

Under the Public Transportation and Highway Improvement Act, sub-sections 33(2) and 33(4) require that written notice of any claim and the injury complained of due to the failure to keep a road in repair must be served within 10 days after the happening of the injury before an action for damages can be started.

According to the Libel and Slander Act, section 5(1) says that no action for libel in a newspaper or in a broadcast can be started unless the plaintiff served written notice specifying the matter complained of within six weeks to the perpetrator.

There are more of such statutes. For a notice to be in line with the statutory requirements, it should be clear and specific, setting out the nature of the complaint, violation, the claims being asserted, and the intention to bring an action; failing which the lawyer may get a response that the notice was defective. A solicitor’s letter claiming injury compensation, and stating that he or she has been instructed to commence proceedings if no satisfactory arrangements are made is generally not sufficient. However, a judge may waive the notice requirements in certain circumstances.

Constitutional Matters

If the intended proceeding raises constitutional issues, like constitutional validity or applicability of any Act or enactment of Parliament or the Legislature, notice must be given to the Attorney General of Canada and the Attorney General of Ontario. In Ontario, sub-section 109(6) of the Courts of Justice Act (CJA) states that this requirement applies to proceedings before boards and tribunals as well as to court proceedings. In addition, it is applicable to proceedings where a remedy is claimed under the Canadian Charter of Rights and Freedoms (Charter).

Limitations

Before commencing any proceeding, it is crucial to verify the limitation period applicable to bring an action. The statement of claim or notice of action has to be issued before the expiry of  the limitation period, failing which the claim will be barred. The Limitations Act, (also known as the new Limitations Act) introduced a basic two-year limitation period for most causes of action in Ontario and an ultimate limitation period of 15 years.  Receiving Royal Assent on December 9, 2002, the new Act came into force on January 1, 2004. There are also matters, like Limitation of liability, Interest on judgment, etc. to be taken into account at the initial stage.

Call the lawyers at Levy Zavet PC for your free consultation on how to get back what you lost, seek recourse and restitution, and pursue your cause of action.

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