Commencing a Claim

• Author: Janet Walker/Lorne Sossin
• Profession: Osgoode Hall Law School, York University/Faculty of Law, University of Toronto
• Pages: 52-92

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CHAPTER 3

COMMENCING A CLAIM

A. INTRODUCTION

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

mencing a claim in the courts, a number of other decisions must also be

made. This chapter addresses some of the key considerations arising 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 the person who is permitted to seek the relief requested,

whether the time allotted for commencing the claim has passed, how

the defendant or respondent must be given the notice of proceeding,

and how and when the defendant must respond.

B. A RIGHT OF ACTION

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

titlement to do so. This is sometimes described as having a right of act ion.

The idea of needing to have a right of action can be traced to the origins

of the common law. At that time, a civil 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 prescribed forms of relief based on strict instructions:

“If someone comes to you with x complaint, you may order y form of re-

Commencing a Cl aim53

lief.” The judges’ mandate was not to consider any and all complaints and

fas hion appr opriate remedi es. It wa s much mor e rest ricted and formu laic

than that. The judge’s task was simply to determine whether the com-

plaint met the specif‌ications of the writ. If it did, the judge was mandated

to order the prescribed relief. Over time, the writs and forms of action

increased in number and became more detailed. They grew so complex

that lawyers became indispensable 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-em-

bracing. Relief was available only where the claim was cogni zable at law.

It w as not the c ase t hat, wher e ther e some one h ad su ffere d a wr ong, t here

was a right to claim relief. Rather, where there was no right to relief, by

inference, no wrong had occurred.1

Much has changed since those times. 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 frustra-

tion and diff‌iculty entitle those who suffer them to seek compensation

in the courts. Not all sources of harm are recognized as wrongful in law

and not all harms give rise to a compensable loss. For example, some-

one may dislike red cars but it would be surprising to learn that there

was a legally recognized right to compensation if a neighbour kept one

parked in the driveway across the street. Some interests, such as the

interest in being protected from the sight of red cars, are not legally

recognized 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 harmful 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 health 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-workers’ use of a fragrance may come

to be recognized as a legal entitlement.

In a further example, someone might discover with some irritation

that a routine banking transaction 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,

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,

1 See H. Patrick Glen n, Legal Traditions of the World, 3d ed. (Oxford: Ox ford Uni-

versity Pre ss, 2007) at 225–31.

CIVIL LITIGATION54

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

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

described by the Latin phrase: de minimus not curat lex or “the harm is

too small to warrant 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 circumstances, 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 that are too small to warrant a cure, in cases

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

possible to aggregate the claims in a class proceeding. This is discussed

in Chapter 6. It will probably always be the case that some harms are

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

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

is suff‌icient to make the claim economically feasible in the aggregate, it

will likely become the subject of a class proceeding.

Where defendants are faced with claims for harms that are not rec-

ognized as giving rise to a legal entitlement to relief, they may bring a

motion to strike the pleading for failure to disclose a reasonable cause

of action. However, the standards for doing so caution courts not to

strike a pleading because the claim is a novel one. The potential for

pleadings to be struck is discussed further in Chapter 9.

The nature of legal entitlements and causes of action are considered

in the various areas of substantive law, but a rightof action, or the en-

titlement to seek compensation for a legally recognized harm, is def‌ined

and circumscribed further in ways that relate directly to the process of

civil litigation. The next two sections in this chapter examine two con-

straints on a right of action that need to be considered in commencing

a claim: the standing of a claimant to seek relief, and the time limits

within which a claim may be commenced. This chapter also considers

the way in which the defendant or respondent must be served with the

notice of proceeding, and the time allowed for serving the notice and

responding to it.

C. STANDING

In addition to having suffered a wrong that the law recognizes as com-

pensable, the entitlement to pursue a right of action depends upon the

standing of a claimant to seek relief. What entitles one person and not

another to commence a claim for relief from a particular wrong? The

obvious answer is that the person with standing to bring the claims is