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Things to Consider Before Going to Court
The topics in the Dial-A-Law series provide only general information on legal issues within the province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation. The purpose is to make you aware of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.
This topic discusses things to consider before going to the Civil Division of the Provincial Court.
The Civil Division of the Provincial Court is often referred to as the Small Claims Court. Before commencing an action in the Small Claims Court (‘Court’), you should consider what your claim involves and if you are bringing your claim before the right Court. You may want to consult with a lawyer before you commence your action.
In a civil action, the person commencing the action is called the plaintiff and you will be required to file specific documents in Court when a complaint is alleged about the conduct of another party, referred to as the defendant. Civil actions are claims for debt, claims arising from motor vehicle accidents and so on. A civil action is not a criminal action where criminal charges are involved. The plaintiff brings the action to Court to ask that the defendant make amends and the defendant may agree or defend allegations. If the defendant agrees or you are successful in proving your claim, the defendant may be ordered to pay money, called damages, to the plaintiff or stop a certain activity.
Before you file a claim in the Court, always write a demand letter to the defendant. In your letter, demand payment for your claim by a specific date. Court action may not be necessary if you are able to collect from the other party directly. Sometimes there are other agencies that can help you solve the problem outside the Court. For example, if you are owed money for wages, the Alberta Employment Standards Office may be able to help you.
The amount of money you are asking for determines which Court to bring your action in. In the Small Claims Court, your claim must be for $25,000 or less. If your claim is for more than $25,000 you should bring your action in the Court of Queen’s Bench. If you are bringing an action in Court of Queen’s Bench, you should speak to a lawyer as the procedures are more complex.
Alternatively, if your claim is more than $25,000, you may still sue in Small Claims Court but you will have to abandon the amount of your claim that exceeds $25,000 by checking off the box on the Civil Claim Form that indicates you abandon that part of your Claim that exceeds the financial mandate of the Small Claims Court.
Sometimes your claim may involve a matter that is beyond the jurisdiction of the Small Claims Court, then the matter is transferred to the Court of Queen’s Bench. This transfer may also occur if the defendant’s counterclaim or defence is beyond the jurisdiction of the Small Claims Court. For example, if you want to bring an action to have goods returned to you, you may sue for their value in the Civil Division up to the $25,000 limit. If the defendant however has a claim against you and counterclaims for an amount in excess of the $25, 000 limit, the matter will be transferred to the Court of Queen’s Bench. If your matter is transferred to the Court of Queen’s Bench and you had previously abandoned any amount in excess of the $25,000 limit, you should request to proceed on the entire amount of your claim in the Court of Queen’s Bench.
As plaintiff, there are limitation periods that you should be aware of when bringing your action. Limitation periods refer to the strict time frame which the law allows the plaintiff to bring his action and where the plaintiff fails to bring its action during time frame permitted by law, the plaintiff loses the right to bring that action again. Generally there is a 2 year limitation period for general debt problems such as contracts, loans, damage deposits and rent. If you are suing for injuries or damages caused to yourself or your property such as those resulting from a car accident, you must do so within 2 years of when any injuries or damages arise. You should consult with a lawyer to see if you are still within the limitation period as there are some exceptions that may apply.
The costs of suing in Court should be compared to what you have to gain. The cost of filing a claim in Court is $100 for claims of $7,500 or less and $200 for claims exceeding $7,500. You should also include costs for serving the claim and other necessary documents on the defendant and any witnesses. If you win, the Judge may add your costs to any judgment sum awarded to you. Sometimes you may lose earnings for the time taken to file the documents and attend in Court. Your earnings are usually not recoverable. Having a Judgment against the defendant does not necessarily mean you will get your money. You may have to spend more money to collect on the Judgment.
You must have enough evidence to support your claim. Gather all documents such as letters, bills and leases that will help you prove your case. It may be difficult to convince a Judge to rule in your favor if it is only your word against that of the other person.
Make sure that all the parties in the civil action are properly identified. As a rule, you can sue as many people, corporations, or firms as are involved with the problem in one action. When you are suing an individual or group of individuals, use their full first names so that the persons are easily identified. If you are suing a landlord, be sure that you are suing under the correct name. For example, although the building may appear to be owned by John Doe, the registered owner may be a company, the Doe Company Ltd. Check with the City Tax Department or the Alberta Land Titles Office to be sure your information is correct. If you sue the wrong person, you will lose your case. An incorporated business can only be sued in the name of the business. A business that is not incorporated must be sued in the name of the owner. Get the exact name by doing a “corporate search” through a Registry Agent and serve those persons accordingly. You can find a list of Registry Agents on the Service Alberta website at www.servicealberta.gov.ab.ca. You may do a “trade name search” through a Registry Agent to find the proper persons.
You will need to serve the Court documents on the defendants and show the Court proof of the service. You should also include a Dispute Notice so that the defendants can respond to your claim if they have a defence. You may also hire a process server to serve the documents for you. If you are serving a corporation, be sure to serve the documents on the appropriate persons and/or the registered corporate office. You may serve the president, chairperson, head officer, or director of that corporation, or the manager or officer of the corporation if they have an office in the same district as the Court in which you filed your claim. You may also serve the corporation by registered mail to its registered office. The registered office may be found by doing a corporate search through a Registry Agent.