Tuesday, December 8, 2015


Not all litigation is about money. As a result, the advisability of some court action like criminal defence or family proceedings can't simply by evaluated by comparing the likely legal expense versus the likely amount of money to be recovered or saved. Defending your freedom or your family can be priceless.

But outside the criminal, family and a few other speciality areas of the litigation world, most litigation is about money at the end of the day. Thus whether you call it property litigation, construction litigation, contract litigation, tort litigation, or estate litigation, it can usually all be fit under the common umbrella of "civil litigation" and will mostly result in a monetary reward for or against you.

It's thus easier to measure success in civil litigation than in non-monetary types of litigation. Success is largely a function of getting (or saving) more than you spend to get that result. It's simple economics. As litigation costs rise, so needs the amount of money likely to be recovered to grow ever bigger in order for the effort to be worthwhile. Low leal costs can justify pursuing or defending quite small sums - such as in small claims court - whereas astronomic predicted costs can only justify pursuit or defence of astronomic sums.

I thus offer you five commandments for cost-effective civil litigation which will maximize your chances of coming out on the winning side every time - meaning spending less than you get or save.

1. CHOOSE SMALL CLAIMS COURT IF YOUR DEBT IS LESS THAN TWO TIMES THE LIMIT OF SMALL CLAIMS. Small Claims Court is much, much cheaper than Superior Court, so make sure you go to Small Claims if the amount you're claiming is anywhere under double the limit of Small Claims. Small Claims Court uses a much simplified procedure than higher courts so that you get to trial much more quickly, which will save significantly on legal fees. This means in Ontario at anything under $50,000 you should be looking at Small Claims Court. True, as a plaintiff you'll be limited to getting $25,000 plus costs, rather that $45,000 or something similar. But you'll potentially save tens of thousands in legal fees. If you spend $5,000 to get $25,000 in Small Claims, you'll be far better off at the end of the day than spending $40,000 to get $50,000 in Superior Court. It's simply a question of math.

2. THINK TWICE BEFORE COMMENCING ACTION IF YOUR LEGAL FEES COULD APPROACH THE VALUE OF YOUR DEBT. This means that if you believe you're reasonably entitled to $75,000, but you might spend $60,000 in legal fees getting that $75,000 judgment, it just might not be worth it. First, you might lose your case outright. Second, you might not get the "costs" against the other side that you are hoping for. And third (most importantly), the defendant might be judgment proof - meaning there are no assets against which you can collect your winning judgment. If your potential claim value is in the millions of dollars, it will be far easier to justify legal costs than for a $100,000 claim. The legal work involved in pursuing each claim might be similar, but fees will be far easier to justify where the amount is dispute is many times the likely legal fees.

3. CONSIDER IF YOU HAVE A PROVABLE CAUSE OF ACTION OR DEFENCE. Although you might firmly (and correctly) believe yourself to be morally in the right, if you can't legally prove a party you are suing is at fault in your claim (or can't adequately defend against a claim of fault made against you), you aren't going to succeed in your case. You need evidence. Cold hard documents work best. But expert reports, or even neighbours to testify in backing up your story could help. If it's just your word against the word of the other party, it's time to worry (regardless of whether you are plaintiff or defendant).

4. ENSURE YOU CAN PROVE (OR DISPROVE) YOUR DAMAGES. Proving the other guy is "at fault" isn't enough. You also need to prove what he owes you. This means that even if its abundantly clear that a party is liable, proving only nominal damages (which might be as low as a dollar) lead one to wonder what's the point of going to court? You might feel justifiably outraged about a situation, but that by itself won't get you "punitive" damages in Canada. Generally you'll be stuck with compensatory damages, meaning damages sufficient to place you back in the position you were in before the other party did what he or she did. Thus you might not like that you neighbour pushes his driveway snow five centimetres on to your property when he plows after each winter storm, but how are you going to quantify the loss this supposedly caused you? By comparison, wind up in an auto accident and lose an arm, and everyone will agree you're owed significant money by a party at fault, even if there remains debate over exactly how much.

5. NAME ALL REQUIRED PARTIES. Thus avoid suing small corporations by themselves; rather, try to add individuals like the President of a corporation as a party so long as there is a plausible legal basis for doing do. This avoids a named party claiming that other unnamed parties are really the ones at fault, and further avoids you possibly getting a hollow judgment against a shell corporation.