As a lawyer, I often get asked by friends, my children, and my children’s friends if they can sue over a particular grievance. I usually glibly say, “you can sue, but whether you win is a different story.” The reality is it’s a lot more complex than that.
Practically speaking, a person can file a lawsuit in the BC Supreme Court and they will accept that law suit without vetting it to ensure it discloses a triable case. However, there are several different ways you can lose your lawsuit, including procedural ways.
Lack of court jurisdiction
Your claim may be statutorily barred – meaning you can’t sue for that. For instance, you cannot sue a person who caused a car accident which injured you for any accident on or after May 1, 2021 (you do have an insurance claim, which I’ll discuss below). If you are in a union, you cannot sue your employer for any breaches of the collective bargaining agreement – you need to file a grievance through your union. Any lawsuit brought in these scenarios would likely be dismissed on a preliminary application.
Also, some claims are restricted to certain tribunals. Claims against ICBC arising from their handling of your insurance claim arising from a car accident must be brought before the Civil Resolution Tribunal; claims arising from workplace injuries must be made through Worksafe BC and, if you’re not happy with Worksafe BC’s decision, must be adjudicated through the Worker’s Compensation Appeal Tribunal; issues with residential tenancy agreements must be adjudicated before the Residential Tenancy Board; and complaints about government handling of Employment Insurance or Canada Pension Plan disputes must be adjudicated through the Social Security Tribunal. Any lawsuit brough in these circumstances would likely be dismissed on a preliminary application.
Similarly, some actions may need to be filed in specific courthouses or provinces. For instance, some contracts will have a “choice of forum” clause which dictates which geographical jurisdiction to bring your case in. If you sue in the wrong jurisdiction, the case will likely be transferred to the correct jurisdiction or “stayed” (paused) for you to sue in the proper jurisdiction.
Other procedural barriers
There have been times when I’ve been asked “can I sue for that” and I’ve said “no.” Sometimes the facts don’t disclose a cause of action – you can’t sue for that. For example you can’t sue anyone for damages you suffered in a natural disaster. In my opinion, you can’t sue someone for taking your picture in public (unless they’re planning on monetizing that picture). If you were to attempt to sue for something that doesn’t disclose a cause of action, the case would be dismissed on a preliminary application.
You can’t sue more than once for the same thing. That is a form of abuse of process. If you try and sue the same people for the same thing more than once, the principle of res judicata applies, which literally means the thing has been judged. Your case will be dismissed or stayed on a preliminary application. Further, you shouldn’t sue different people in separate actions for the same thing – typically you should sue everyone you think could be liable in the same lawsuit. If you sue different people one after the other, the court may ultimately stay or dismiss one or more of the cases as an abuse of process. Lastly, if people are suing each other over the same incident, those matters should be either joined into one action or tried at the same time. This may come up in car accident litigation where each driver sues the other claiming the other driver caused the accident.
You can’t bring a frivolous or vexatious lawsuit. Typically, that means you can’t sue for an improper purpose. You can’t sue for the purpose of annoying, intimidating or burdening the other person, or for the purpose of preventing participation in public discussion. Lawsuits brought by so-called sovereign citizens/freemen on the land which assert a lack of government authority have been found frivolous and vexatious. These cases will be dismissed on preliminary application.
The last procedural barrier to suing is the Statute of Limitations (formally known as the Limitations Act): legislation which sets a deadline for commencing any court case. There are exceptions, but for the most part in British Columbia you must commence (not complete) your lawsuit within two years of the incident. There are some actions which must be commenced much sooner (including claims against municipalities – if you trip on a sidewalk and hurt yourself, you need to act quickly, so consult one of our Slip and Fall lawyers immediately); and some claims can be brought later (collection on a judgment, a claim you didn’t know you had, claims for the benefit of minors, etc.).
Bad facts
Lastly, and most commonly, the other party may have an absolute defence to your claim such that while you may get to a trial, you will likely lose at trial. There are many examples of this. For instance, anytime anyone says something bad about you, that’s defamation. However, there are some absolute defences to defamation including truth, fair comment, and qualified privilege. So, if a former employer gives you a bad but true reference you can sue for that, but you’ll probably lose on one or more of those defences. Similarly, if you have suffered no losses as a result of the grievance, you may win nominal damages (i.e. one dollar) or have the case dismissed on the principal de minimis non curat lex, which means: the law does not concern itself with trifles.” So, for instance, if someone stole your drink at a house party, technically that’s compensable but the damages are so minor the case could be dismissed outright as too trifling.
All in all while there are many things you can sue for, there are some things you can’t sue for at all, and there are many complications which mean even if you sue you may not win or get to trial.