April 16, 2014

By Brian Babcock

People with potential court claims sometimes want to wait to start their lawsuit. For most claims in Ontario, you have two years to sue, and some people are not in a hurry.

There are very good reasons to NOT wait to start your action, and a few counterarguments in favour of waiting.

Reasons NOT to wait include:

  • Not all claims are subject to the two year limitation. Some have shorter limitations, or special notice requirements – always best to talk to your lawyer about those early.
  • For some claims, the start date for the limitation is unclear- the Limitations Act 2002 talks of “when the cause of action arose”. “Cause of action” is not a phrase that is easy to understand. The determination of when it “arose” might also be tricky, especially if there were ongoing events, or hidden damages.
  • The sooner you sue, the sooner you might get paid.
  • Bad things may happen while you are waiting
    • The opposing party might die, or go out of business, or go bankrupt
    • The opposing party’s insurance might lapse
    • Witnesses may die, or move away
    • Memories are almost certain to fade
    • Documents may be lost, damaged or destroyed
    • Computer hard drives might be erased, or wiped
    • Emails might be deleted

    Any of which might make it harder to get your money.

Reasons to wait might include:

  • Negotiations are proceeding briskly; in good faith – negotiated settlements are almost always better than suing.
  • You are waiting for medical evidence or other crucial developments.
  • You have family or health issues that you need to resolve first.
  • You cannot afford it now, but expect to soon.
  • Once the claim begins, you must serve the opposing party within 180 days, and they must defend, or your claim might be administratively dismissed.
  • Once a claim is defended, you have two years (in most cases) to list the action for trial, or risk administrative dismissal.
  • Once a claim is defended, you cannot quit the action without the agreement of the opposing party, or paying their court costs.
  • Occasionally, the other side will launch a counter claim in response that they might not have brought if you did not sue.

Which list fits your situation better? In most cases, you will only know the answer after you discuss your potential claim in detail with a lawyer.