Starting a lawsuit: Basics for plaintiffs in the Nova Scotia Supreme Court

A civil lawsuit is a formal legal process used to resolve disputes between people or organizations. The person who starts the lawsuit is the plaintiff. The person being sued, the one defending against the claim, is the defendant.

Lawsuits can involve many different issues. Examples include:

• claims about a broken promise or agreement (called a breach of contract)
• claims about personal harm, like a car accident or a slip and fall (called torts or personal injury)
• disputes over damage to property

In the Nova Scotia Supreme Court, a civil lawsuit is called an action. An action is the standard, formal way to proceed with a complex dispute requiring a full trial with live witnesses. The procedural requirements for an action are set out in the Civil Procedure Rules of Nova Scotia.

This page is about actions, not applications. A court application is a different type of court proceeding. 

There are 2 basic ingredients for a successful lawsuit:

• Cause of action: This is your legal reason for suing the defendant. You must show a set of facts that prove the defendant's actions violated your legal rights. For instance, you must prove they breached an existing contract.
• Damages: This refers to the loss or harm you suffered. You must give the court details about your damages, such as lost wages or the cost to repair property.

You must support both parts of your claim with evidence. The evidence could be in the form of documentation, witness testimony, or expert opinion. 

Lawsuits in Nova Scotia usually start in one of 2 main courts:

Small Claims Court: This court is for claims up to $25,000. It is designed to be informal and not too expensive. It mainly handles claims about contracts, personal harm, or property damage.

• Simple procedures: The process is simplified, often needing just 2 court dates. You are not expected to know procedural rules or laws of evidence. The process is designed for people to represent themselves.
• General damages limit: In addition to the $25,000 overall limit, there is a strict $100 limit on “general damages” i.e., compensation for losses that do not have a specific price tag, such as pain and suffering or loss of enjoyment of life. 
• Costs: You do not need to hire a lawyer to go through Small Claims Court. However, if you do, you cannot recover your lawyer’s fees in this court (even if you win). You can recover “disbursements” or out-of-pocket expenses such as the filing fee. 
• Exclusions: This court cannot handle cases about land ownership, wills, or defamation (slander and libel).

Nova Scotia Supreme Court: This court can handle all types of civil lawsuits, and there is no monetary limit on the amount you can sue for. Because the procedure is more formal and complex, having legal representation is often important.

• Rules: You must follow the Civil Procedure Rules. These are strict and detailed. Unlike Small Claims Court, you are expected to provide written legal arguments and follow formal evidence rules.
• General damages: General damages represent compensation for losses that do not have a specific price tag, such as pain and suffering or loss of enjoyment of life. Unlike Small Claims Court, there is no $100 limit here. Judges award much higher amounts for pain and suffering based on previous cases and medical evidence. They can award up to a maximum of roughly $450,000 for general damages (separate from other categories of damages such as income loss).
• Legal representation: Because the rules are so complex, it is very difficult to navigate this court without a lawyer. If you lose, a judge may order you to pay a portion of the other side’s legal fees.

You cannot wait forever to start a lawsuit. A law called the Limitation of Actions Act sets strict time limits. In most cases, you have 2 years to start a lawsuit.

This 2-year clock starts running when you discover your claim. You have "discovered” your claim when you knew, or should have known, all of these things:

• you suffered an injury, loss, or damage
• the damage was caused by something someone did or failed to do
• a legal proceeding would be an appropriate means to seek a remedy

There is also a final deadline, called the ultimate limitation period. You cannot start a lawsuit more than 15 years after the act that caused the problem happened. Other laws can also set different time limits for specific types of claims.

Collecting the money you are owed can be a major practical problem, even if you win your case. Winning a lawsuit only gives you a court order, called a judgment, that says someone owes you money.

If the person who lost (the judgment debtor) does not pay you willingly, you must take legal steps to force them to pay. This process is called enforcement. The court can issue an Execution Order. This order allows a sheriff to take certain actions to collect money from the debtor. The sheriff can seize and sell property, garnish wages, or take money from bank accounts.

However, the biggest hurdle is when the debtor has no money or property to take. If the person you sue has no savings, is unemployed, or owns no valuable assets, the court order is just a piece of paper. This is why you must consider the defendant's ability to pay before starting a lawsuit. 

Pleadings is the first stage where each side formally states their case in writing. The “pleadings” refer to the lawsuit and the defence. 

The lawsuit is a package of 2 documents:

• Notice of Action: This is the formal announcement that you are suing. It tells the defendant they must give a response or they might lose automatically.
• Statement of Claim: This explains the "who, what, and why" of your case. It describes what happened and what you want the court to give you, such as money.

These documents must be drafted in accordance with the Civil Procedure Rules (Forms 4.02A and Form 4.02B). 

When you give your documents to the court (called filing), a court official will:

• assign a unique number to your case
• stamp the documents with a formal court stamp
• keep the original and give you certified copies to give to the defendant

After filing, you must give the defendant a certified copy of the documents. This is called “service”.

The law says you must use personal service. This means someone must hand the documents to the defendant in person.

Who can serve: You cannot serve the documents yourself. You must ask an adult who is at least 19 years old and can read and write. Many people hire a professional called a process server..

Deadlines: You must serve the lawsuit on the defendant, or an officially designated representative of the defendant, within 1 year of filing it. 

Proof of service: The person who delivered the papers must sign a sworn document called an Affidavit of Service, which must then be filed with the court. This proves to the court that the defendant knows they are being sued.

The time a defendant has to file a Notice of Defence depends on where they were when they received your legal papers:

• 15 days if they were served in Nova Scotia
• 30 days if they were served anywhere else in Canada
• 45 days if they were served anywhere else in the world.

These deadlines start the day after the lawsuit papers were handed to them.

If the defendant misses the deadline 

If the deadline passes and the defendant has not given a defence, you can ask the Nova Scotia Supreme Court for a Default Judgment. This means you win the case because the other side did not show up to fight. 

To get this, you must show the court your Affidavit of Service as proof that the defendant was notified.

• Specific debts: If you are suing for a fixed amount of money (like an unpaid loan), a court official can often sign the order immediately.
• Damages: If you are suing for harm done (like an injury), a judge will usually have to hold a hearing to decide how much money you should get.

Note: A defendant can still send a defence even after the deadline, as long as you have not secured the Default Judgment yet.

Disclosure is the process wherein the parties exchange information and learn about the other side's case in more detail. The disclosure may contain documentation that is either in paper or electronic form. You will prepare a sworn list of all relevant documents (like medical or employment income records) and electronic files (like emails or computer records) that they have or control. You must then provide copies of these to the defendant. The defendant will do the same and provide it to you.

You will likely have to participate in an oral discovery examination - where the defendant or their lawyer questions you under oath before a court reporter. The answers are recorded and transcribed. The transcript is evidence in the case. It can be used later at trial. You may also have to answer interrogatories, which are written questions that must be answered in writing.

Most lawsuits end before they ever go to a full trial. The parties can agree to resolve the case at any time, which is called a settlement.

Alternative Dispute Resolution (ADR) methods can help resolve or narrow the issues in dispute:

• Judicial settlement conferences: A judge will help the parties try to reach an agreement at a meeting called a settlement conference.
• Mediation and arbitration: A neutral third party mediator helps the parties resolve the dispute out of court. Agreements reached can be enforced by a judge.

If the case does not settle, it goes to a trial. A trial is a formal hearing where each side presents their evidence to a judge. The evidence includes documents and the testimony of witnesses.

The judge (or sometimes a jury) then decides who wins. Possible outcomes include:

• The judge rules in your favour, granting a judgment that orders the defendant to pay you money (damages).
• The judge rules against you, dismissing your claim.
• The judge can also make orders about legal costs. This means the losing party usually has to pay a portion of the winner's legal fees.

Winning a lawsuit and getting a court order (a judgment) that says you are owed money is only half the battle. If the defendant does not pay voluntarily, you must take further legal steps called enforcement to force payment. Most methods for enforcement require specific information about the defendant to be effective. 

The main tool for enforcement is an Execution Order. This order gives a sheriff the legal authority to collect money from the debtor.

Possible enforcement methods include:

• Seizure of property: The sheriff can seize and sell property, like cars or equipment. However, some basic items like necessary clothing and tools of the trade are exempt and cannot be taken.
• Garnishing wages: The sheriff can order an employer to pay a portion of the debtor’s wages directly to the sheriff. There are limits on this. The debtor is allowed to keep a minimum amount to live on.
• Taking money from bank accounts: An execution order can be used to take money from bank accounts.
• Putting a lien on land: You can register the judgment against any land owned by the debtor. This creates a lien, meaning the land cannot be sold or refinanced until the debt is paid. 

A lawsuit in the Nova Scotia Supreme Court is very complex. The rules are long and hard to understand. It is easy to make a mistake that can hurt your case.

 You should consult a lawyer as early as possible. A lawyer can tell you if you have a valid legal claim. They can also explain the process and the risks involved. 

Lawyers can sometimes offer different payment options. For example, some personal injury lawyers may work on a contingency fee basis. A contingency fee means the lawyer only gets paid a percentage of the money you win. If you do not win, the lawyer does not get paid a fee for their time. Be sure to ask about all fee options.

Always keep the possibility of reaching a settlement in mind, even while you prepare for trial. A settlement is an agreement between you and the defendant to resolve the case. Most lawsuits in Nova Scotia eventually settle before a judge makes a final decision. Going to trial is expensive, slow, and stressful. You may owe the defendant legal costs if you lose.

While you must be prepared for trial to have a strong case, a settlement gives you control more control in the outcome and terms.

If you go to trial, you hand that control to a judge. The judge may decide you are owed less than you hoped, or nothing at all. Settling avoids the uncertainty and high costs of a full trial. This is why being open to a fair settlement is always smart.

A formal lawsuit is called an action. An action asks the court for a final decision and for money (damages). 

In some cases there are other ways to deal with legal problems that are faster, cheaper, and less complex than an action. These are often much more practical. 

One type of court process that is not an action is an application. An application asks the court to address a specific, narrow issue rather than the entire case. For example, a judicial review is an application. This is where you ask the Nova Scotia Supreme Court to review a decision made by an administrative board or government body.

Other problems can be solved completely outside of the courts. These are often handled by specific boards or tribunals, which are less formal than the Supreme Court. Examples of these processes include:

• Human rights complaints: For issues of discrimination.
• Workers' Compensation Board (WCB): For claims related to workplace injuries.
• Union grievance proceedings: For issues that your union can deal with.
• Professional complaints: If you have a problem with a lawyer, doctor, or other regulated professional, you can complain to their specific regulatory body.

Using these other options may be simpler and more direct than a lawsuit. Always check if a non-court option is available to you before committing to a lawsuit.

The time limit to start a lawsuit is very strict. In most cases, you have 2 years from the date you discover your claim. This time limit is set out in the Limitation of Actions Act. 

If you start your lawsuit even one day late, the court will likely dismiss your entire case. This means you will lose your chance to sue, no matter how strong your evidence is. 

Do not wait for your injuries to heal or your personal life to settle down. If you think you might need to sue, you should speak to a lawyer right away. They can make sure your legal documents are given to the court before the deadline passes. It is a critical step that you cannot miss.

Once you file a lawsuit, you have an obligation to share all relevant documents and electronic information. You must prepare a sworn list of these records. You must keep all documents related to the claim, including emails, letters, texts, and financial records. Being organized will save you time and help your case. 

Only a lawyer can give you a formal opinion on the strength of your legal claim. Assessing a claim is a highly fact-specific task. This means the answer depends entirely on the unique details of your situation.

When you ask a lawyer, "Do I have a case?" they must consider many factors to determine whether a lawsuit is worthwhile. A lawyer generally considers:

• Legal merit: Is there a clear, valid legal reason to sue? This is called a cause of action. For example, did the defendant's actions meet the legal test for negligence or a breach of contract?
• Damages: Did you suffer a real and measurable loss or injury? If you win, will the judge be able to order an amount of money that makes the time and cost of the lawsuit worthwhile?
• Evidence: Do you have enough proof to convince a judge that the defendant is legally responsible and that your damages are real?
• Time limits: Is your claim within its applicable limitation period? If the deadline has passed, you do not have a case.
• Enforceability: Does the person or company you are suing have the money or assets to pay the judgment if you win? Winning a lawsuit against someone with no money is often a wasted effort.
• Cost and risk: How expensive will the lawsuit be, and how does that compare to the amount you might win? Lawsuits can be costly, and there is always a risk that you could lose and have to pay some of the other side's legal fees.

A good lawyer will assess all of these factors before telling you if your claim is viable or likely to succeed.

Determining the exact value of a lawsuit is difficult and is rarely done at the start of the case. A lawyer will often defer making predictions until after key steps, such as Disclosure and Discovery, are complete. These steps allow both sides to gather all the evidence. Only then can a true valuation be made.

The value of a claim is generally based on the types of losses you have suffered. Damages are usually divided into 2 main categories:

• Pecuniary damages: These are losses that can be easily calculated in dollar amounts. Examples include lost wages, medical expenses, and the cost to repair or replace property.
• Non-pecuniary damages: These are losses that are not easily calculated. They are meant to compensate you for things like pain, suffering, loss of enjoyment of life, and emotional distress caused by the defendant. The law sets limits on these types of damages.

A contingency fee agreement means the lawyer only gets paid if you win your case or reach a settlement. The lawyer's fee is a set percentage of the money you receive. If you lose, you typically do not owe the lawyer any money for their time. You may still be responsible for expenses like court fees.

Contingency fees are most common in certain areas of law, such as personal injury claims (like car accidents or slip and falls). They are less common for commercial disputes or non-monetary claims.

When deciding whether to take a case on contingency, a lawyer will generally consider several factors, including:

• The likelihood of winning: Is there a strong chance of proving liability?
• The value of the claim: Is the amount of money at stake large enough to justify the lawyer's time and risk?
• The availability of evidence: Do you have solid proof to support your claim?
• The defendant's ability to pay: Will the defendant or their insurance company be able to pay the judgment if you win?

If your case has a good chance of success and a reasonable potential value, a lawyer may be willing to take it on a contingency fee.

You should not file a lawsuit if you are not prepared to go to a trial. It is a possibility. However, most lawsuits do not go to trial. They often settle. 

A settlement is a voluntary agreement to end the dispute. This agreement can be reached at any point, even the day before the trial is scheduled to begin. Settling a case gives you control over the outcome. It is often faster, less stressful, and less expensive than a trial.

While you must be prepared to go to trial to protect your rights, your lawyer will look for opportunities to settle through negotiation. A settlement means you can avoid the uncertainty of a judge making the final decision.

There is no set answer for how long a lawsuit will take. Cases in the Nova Scotia Supreme Court that go through all the steps can take 1 to 3 years, or even longer.

The time a lawsuit takes depends on many factors, including:

• The complexity of the dispute: A simple personal injury claim usually moves faster than a complex commercial dispute.
• The conduct of the other party: If the defendant fights the claim every step of the way, or is slow to respond to court deadlines, the case will take longer.
• The amount of evidence: If there are hundreds of documents to review and many witnesses to interview, the evidence process will be long.
• Court resources: Court time is limited. Waiting for an opening in the court's schedule for a trial date can often add several months to the process.

Your lawyer can give you a more accurate estimate once they know the details of your claim and how the defendant plans to respond.