Before you Sue

1. Try to settle out of court 

Perhaps the most important thing to consider when thinking about litigation is whether litigation can be avoided by settling the dispute. That is, can the people involved in the dispute come to an agreement?

Settlement can happen at any time – before a lawsuit has been started, or after the proceedings have begun. Fewer than 3% of cases that are filed with the court actually proceed all the way to the trial stage because most cases settle without going to trial.

Be sure to read Alternatives to Going to Court to find out how you can settle your lawsuit before going to trial.

2. Learn about the Law

The more you know and understand about the litigation process, the fewer difficulties you will have. Knowledge will also help you anticipate, prepare for and deal with the cost of the proceedings, the amount of time the proceedings take, and the complicated and personal questions you might have to answer. 

It is important to remember that the court cannot resolve all disputes. The law determines whether a claim you believe you have against another party is one that can properly be brought to the court for resolution.

3. Decide if you can and will hire a lawyer 

A good lawyer will make any litigation easier and more likely to be successful. See Get Help. At the very least you should get legal advice about the strength of your case and the steps you need to take. 

4. Get organized

It is critical that you start organizing your case very early in the litigation process. Being organized can help keep costs down and increase your chances of reaching an early settlement. You cannot succeed at trial unless your case is well organized. While the judge may help you with simple procedural matters, they will not help you understand the law, advise you on evidence you need to prove your case, or organize your evidence for you. You must:

• Think about how you will prove your case. See Evidence Basics.
• Learn the law that applies to your case. See Legal Research Basics
• Start gathering important documents as soon as possible
• Keep your documents in a safe place and organize your documents in a logical way (e.g., in date order)

5. Determine which Court or Tribunal should hear the matter.

Your matter may not need to be in British Columbia Supreme Court. Any claims for less than $5,000 are resolved by the Civil Resolution Tribunal. Claims for between $5,000 and $35,000 are heard by the Small Claims Court (which is a separate entity from the BC Supreme Court). Claims concerning federal taxes are heard in the Tax Court of Canada. Claims about immigration matters are heard in Federal Court.

This is just a sample of the cases that do not go to BC Supreme Court. For more information on picking the right court to resolve your dispute, see Where to file.

If you start your case in the wrong court it can lead to delay and expense. In a worst-case scenario, it could cause you to miss a “Limitation period” for starting in the right forum. For more information on limitation periods, see Limitation Periods. On the other hand, if you are responding to litigation started by someone else, you should consider whether they have made a mistake in where the case was brought.

6. Determine the Limitation Period

If a case is started too late, the Court may not be able to hear the matter. When a court case must be started is determined by the “Limitation period”. 

Limitation periods are created by legislation, most notably the Limitation Act.

It is important whenever you think about bringing litigation to consider if a limitation period applies. If so, you need to be certain that you start the claim before the limitation period passes.

If you have any doubt as to whether a limitation period may affect your claim, you should seek legal advice. If the limitation period is ending soon, you may want to file a claim as soon as possible. Just because you start a claim does not mean that you have to pursue it. Rather, all you have to do is ensure that you serve it on the other side within a year. Having started the claim will allow you to attempt to settle the claim without worry that you may be barred from later going to court.

For more information on limitation periods, see Limitation Periods.