Chapter 3: Who Can Sue, What Will Be Decided, Who Will Be Bound

• Pages: 58-93
• Author: Janet Walker,Lorne Sossin,Erik S. Knutsen,Gerard J. Kennedy

CHA PTER 3

WHO CAN SUE, WHAT

WILL BE DECIDED, WHO

WILL BE BOUND

A. INTRODUCTION

When the decision is made to seek a resolution to a dispute by com-

mencing a claim in the court s, a number of other decisions must also

be made. This chapter addresses some of the key considerations aris -

ing at the time of commencing a claim, including whether there is a

right to seek relief from the courts for the harm suffered, whether the

plaintiff or applicant is t he person who is permitted to seek t he relief

requested, and whether the claim m ay be precluded from continuing

on the grounds it is an abuse of process.

B. A RIGHT OF ACTION

To commence a claim, the claimant must have a legally recogn ized en-

titlement to do so. This is sometimes described as having a r ight of ac-

tion. The idea of needing to have a right of action can be tr aced to the

origins of the common law. At that time, a civi l claim was made through

a plea to the King in Court to order another of the King’s subjects to

provide relief for the harm caused. As the legal system developed, the

King delegated to judges the power to grant relief. The judges travelled

throughout the country to grant presc ribed forms of relief based on

strict instr uctions: “If someone comes to you with x complaint, you

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Who Can Sue, What Wil l Be Decided, Who Will Be Bound 59

may order y form of relief.” The judges’ mandate was not to consider

any and all complaints and fa shion appropriate remedies. It was much

more restricted and formulaic th an that. The judge’s task was simply

to determine whether the complaint met the specications of the writ.

If it did, the judge was mandated to order the prescr ibed relief. Over

time, the writ s and forms of action increased in number and became

more detailed. They grew so complex that lawyer s became indispens-

able to the system, but the fundamental approach remained the same.

The entire civil justice system at that time might have been described

as purely procedural. Justice was not all-embracing. Relief was avail-

able only where the claim was cogni zable at law. It was not the case

that, where someone had suffered a wrong, there was a r ight to claim

relief. Rather, where there was no right to relief, by inference, no wrong

had occurred.1

Much has changed since those t imes. It sounds odd today to sug-

gest that a person who feels wronged might not be entitled to seek

relief from a court. However, it remains the case that not all forms of

frustration and difculty entitle those who suffer them to seek com-

pensation in the court s. Not all sources of harm are recogni zed as

wrongful in law and not all h arms give rise to a compensable loss. For

example, someone may dislike red cars, but it would be surprising to

learn that there wa s a legally recognized right to compensation if a

neighbour kept one parked in the driveway across the street. Some

interests, such as the intere st in being protected from the sight of red

cars, are not legally recogni zed and, therefore, do not give rise to a

cause of action.

Similarly, someone may not like the particular fragrance used by a

co-worker, but if the use of fragrances has no known h armful health

effects, the preference for a fragrance-free workplace may not be a right

protected by law. However, this example is different from the previ-

ous one because, with the growing awareness that fragrances can have

harmful he alth effects on some people, and the entitlement to be pro-

tected from health hazards in the workplace, a right of action to seek

recovery for harm caused by a co -worker’s use of a fragra nce may come

to be recognized as a legal entitlement.

In a further exa mple, someone might discover with some irritation

that a routine banking t ransaction involved an unauthorized charge,

but the amount involved was negligible. As a result, even if the entitle-

ment to recovery was, in principle, beyond doubt, as a practical matter,

1 See H Patrick Glenn , Legal Tradition s of the World, 3d ed. (Oxford: Oxford

University Pre ss, 2007) at 225–31.

CIVI L LITIGAT ION

60

it would not be feasible to seek relief through litigation because the cost

of doing so would exceed the amount likely to be obtained. At one time,

the unavailability of recovery might have been regarded not just as a

practical matter but as a legal one as well. The principle was s ometimes

described by the L atin phrase: de minimus not curat lex or “the har m is

too small to warr ant a cure.” (In this phrase, one might hear the echo

of the old common law notion that where there was no relief there had

been no wrong.) In these circumstance s, it would be said that the harm

was de minimus.

The situation is less clear these days. While it remains true that

there are some harms t hat are too small to war rant a cure, in cases

where many people have been affected by the same h arm, it may be

possible to aggregate the cla ims in a class proceeding. This is di scussed

in Chapter 11. It will probably always be the case that some harms are

too small and affect too few people to warr ant an individual cure, but in

cases where the collective impact on the public of some avoidable harm

is sufcient to make the cla im economically feasible in the aggregate, it

will likely become the subject of a cla ss proceeding.

The nature of legal entitlements and causes of action are considered

in the various area s of substantive law, but a right of action, or the

entitlement to seek compensation for a legally recognized harm, is de-

ned and circumscr ibed further in ways t hat relate directly to the pro-

cess of civil litigat ion.

1) Justiciability

The scope of legal entitlements capable of giving ri se to a right of action

is further const rained by the requirement that subject matter of a claim

be justiciable. Justiciability covers a ver y simple question with vast im-

plications for our legal system and its constitutional architecture —

that is, when courts should decline to hear a nd decide matters brought

to them, either because they l ack the capacity to hear and decide them

or because it would not be appropriate for them to do so.2

The determination of a question of justiciability is an exercise of

discretionar y judicial gatekeeping, one inherent in the very nature of

judicial control over the scope of the court’s role. That said, there are

important guard r ails to the exercise of this discretion. In Operation

Dismantle,3 in 1985, the Supreme Court claried that there is no “pol-

itical questions” doctrine in Canada which would enable a court, as

2 See Lorne M Sos sin & Gerard Kennedy, Boundarie s of Judicial Review: The Law

of Justicia bility in Canada, 3rd ed (Toronto: Thomson Reuters, 2024), ch 1.

3 Operation Dis mantle v The Queen, 1985 CanLII 74 (SCC).