LITIGATION

GOING TO COURT

Customers don’t pay, suppliers fail to deliver, loans are not paid, products are defective, contacts are broken, people lie, deceive, mislead, trusts are violated, negligence occurs, people are wrongfully fired from their employment, reputations are defamed and sullied, property is taken or not returned, disputes arise between shareholders, partners, heirs, executors, and otherwise events transpire which puts your life and your interests in conflict with others. When a dispute cannot resolve be resolved directly you are usually faced with three choices.

1. DO NOTHING – and if you do nothing for a long enough time, and its usually 2 years from the time the claim arose, your right to sue may be lost. There are exceptions to this short limitation period,  which may involve a breach of trust, ongoing negotiations or if the person against whom you will be claiming, hid the circumstances from you upon which your claim may be made. There are also other exceptions which may extend the limitation period. There are also other circumstances, usually involving claims against governmental agencies, or public bodies where the limitation period may be very short. When in doubt, call a lawyer. Do it soon and find out how much time you have to do nothing before doing nothing becomes your only option.

 2. SELF HELP which may but should not involve the use of force. Use of force will likely result in a urgent telephone call to a member of the criminal bar and someone to post bail. Self help is also frought with risks associated with the very real likelihood that you will not follow the legal requirements in the pursuit of your remedy. This may give rise to civil and possible criminal claims against you which otherwise could have been avoided. 

3. GO TO COURT.

It is that third alternative that is encompassed by the term, litigation.

The parties, whether they are the plaintiffs, who bring the action, or the defendants who are responding to the action are looking to the judge, who after hearing the evidence, the arguments of counsel and after consideration of the law, grants judgment. The judge will consider whether the evidence was sufficent to prove the claim or rebut it, the application of law in the facts as determined and the consequences of these determinations.

The consequences may consist of an award of damages, a declaration, an injunction restraining or directing that something be done or prohibited by one or more of the parties, the costs burden of the litigation and otherwise. Judges may err, and this is why there are appeals.

In Ontario in most instances unless the claim seeks declatory, injunctive relief or pertains to an interest in land, or family matters, the amount of money involved in the litigation dictates where or how the litigation should be brought. A case under $25,000.00 should be brought in the small claims court in the geographical district where the defendant resides. There are exceptions.

A case over $25,000.00 and under $100,000.00 should be brought in the Superior Court of Justice under the simplified rules. There is no requirement dictating which court office should have carraige of the action, however there should be a real connection between the geographical area serviced by the court office and the matters at issue.

Examinations for discovery are very limited under the Simplified Rules, resulting in a significant costs saving. That costs savings in theory offsets the uncertainty and risk of surprise at trial. The parties are required to make disclosure of all of the relevant documents and potential witnesses.

In those proceedings which involve claims in excess of $100,000.00 are brought in the Superior Court of Justice but not under the simplied rules as of right. The plaintiff may elect to bring this claim under the simplified rules and the case will proceed on that basis if no defendant objects or if faced with an objection, the plaintiff waives the excess of $100,000.00 of the claim. The proceedings brought under the regular rules of civil procedure (not simplified rules) have full verbal and documentary discovery. This can be, and frequently is a very costly and time consuming although recent changes in the procedure are limiting the discovery process and scope of discovery to reduce costs and maintain some proportionality to the scope of the discovery to the matters at issue.

If you are in a dispute which you cannot resolve directly or are uncertain of your rights and the law pertaining to any issue which you believe may impact upon you, or you have any questions regarding the court process in which you are or may be involved, you should consult a lawyer. I would be pleased to receive your consultation and feel free to contact me through the contact link.

Alternative Dispute Resolution (A.D.R.)

As an alternative to court proceedings, resort may be had to what is referred to as Alternative Dispute Resolution. This is a private system whereby the parties agree to either a mechanism whereby their dispute will be decided by another, that is Arbitrated, or the parties will retain a person who will  in theory help the parties to negotiate and settle the dispute between them, a process referred to as Mediation. Both of these processes are voluntary and must be agreed to by the parties. There are some jurisdictions which require mediation as part of the litigation process. Arbitration is a private court. The rules and powers of the arbitrator are set out in the Arbitration Act and in what ever agreement entered into by the parties. Mediation frequently deals not simply with the facts and law, but also to the underlying reasons behind the dispute. Mediation is most appropriate when the parties have an ongoing relationship extending beyond the matter in immediate contention or when the parties desire a long term relationship or can honestly agree to disagree.

Mediation requires the parties to act from positions of relative equality, without duress or fear of retribution, with full and complete disclosure of all material facts. It requires the participants have an open mind to assess the positions of the others, and an honest desire by the participants to resolve the matters in contention. Mediation and arbitration are private processes, which means the parties make up the rules and the parties bear the full costs of the process.

Before embarking upon mediation or arbitration, one must be aware of one’s financial resources available to litigate in the absence of resolution through mediation. It is not unusual that the unsuccessful mediation and other negotiations exhaust the financial resources needed to pursue a remedy through the courts in the absence of settlement. Mediation should be entered where there is a reasonable prosepct of resolution and there appears to be a genuine intent to come to some resolution, which will involve a compromise.

It is an unfortunate and not infrequent occurrence, that an unsuccessful mediation or other negotiation process may exhausts a person’s resources, leaving that person with out remedy and without the means to pursue that remedy. That stated, a negotiated resolution which you can live with, may be a better result than a good trial.

Please feel free to contact me through my contact link you have any questions pertaining to either process, or wish to consider retaining me to represent your interests at mediation or arbitration or act as an arbitrator or mediator.

PROPRIETARY INFORMATION AND

INTELLECTUAL PROPERTY

INTELLECTUAL PROPERTY INTELLECTUAL PROPERTY is frequently an under rated core value of any business as a going concern. It includes the know how, contacts, business plans, processes, trade marks, data bases, designs, trade secrets and the other intangibles which distinguish a business from its competitors. Generally speaking there is no ownership in an idea, but there is ownership in how the idea is utilized and exploited. The value to the user may be considerable. In light of the significant ongoing changes in the economy geared towards information technology, merchandising, licensing, distribution rights, royalties, derivative rights, moral rights, marketing and franchises, the market recognition of your goods or services warrants protection. The ability to distinguish your business from your competitor and to preclude your competition from wrongfully utilizing your unique and proprietary information and other intellectual property may be material to your success.  To simply claim that one has intellectual property rights to the business information and processes does not make it proprietory. To preserve and protect  proprietary interests to intellectual property certain steps must be taken. This may include registrations in Canada and elsewhere. 

I would be pleased to discuss with you any enquiry you may have on this issue. Feel free to make your enquiry through the contact link.

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We all have bad debts. A sophisticated debtor may run, hide, lie, seek protection under various debtor relief legislation, move monies and assets off shore, place assets in hidden trusts, apply for bankruptcy protection and otherwise expend efforts to make the debt appear uncollectible. For such a debtor it may be a way of life. Once a debt goes bad, decisions are made whether or not to pursue the debt, the debtor, and the efforts to be expended in the hunt and capture of these monies. Seasoned and sophisticated counsel may be of significant aid in the decision making process and the hunt. Counsel should be experience in matters of debt collection, off shore transactions, fraud, white collar crime, securities enforcement and mortgage remedies and have worked with certified fraud examiners and investigators domestically and abroad in aid of client’s causes. 

There are case where the debt is denied. That denial may be genuine and on the merits based upon a genuine dispute between the creditor and debtor which may negate all or part of the alleged debt. The denial may be based upon a remdial legislation prohibiting what the debtor may claim is excessive collection practices or an unlawful agreement which precludes the creditor from seeking any or all of the amount claimed. It is also possible that the denial may simply be a bad faith dodge to avoid a financial obligation. Each one of these alternatives requires a different approach in aid of recovery.

Please feel free to contact me should you have any questions pertaining to any collection matter.

NOTICE TO READER:

NOTHING WRITTEN ON THIS PAGE OR THROUGHOUT THIS WEB SITE IS LEGAL ADVICE OR SHOULD BE RELIED UPON AS LEGAL ADVICE.  The comments on this site are of a general informative nature and should not be relied upon instead of seeking out legal advice from a lawyer who is familiar with your particular circumstances. These comments, like most things of a general nature, may not apply to your specific circumstances.