LITIGATION

A demand letter is a written request sent by a creditor (or his attorney) to request the payment of monies that may be owing, the execution of an obligation or informing a person of a breach of a contract or legal obligation. Usually a delay is given to execute the obligation and an amount for damages is stipulated. A demand letter should be sent by registered mail or bailiff as these means can provide proof that the demand letter was sent and/or received.

The law states that you do not need to send a demand letter when the debtor is in default by the mere lapse of time (i.e. not paying on time) or if the contract stipulates that doing or not doing something is a default. However, it is highly recommended to send a demand letter as this (i) may resolve the matter more quickly and cheaply than taking legal proceedings, (ii) starts the computation of interest if the contract or agreement does not provide for the payment of interests and (iii) is often required if a claim will be filed in small claims court.

In the province of Quebec, you can file aclaim in small claims court if (i) the amount claimed is less than $7,000.00 (ii) you are an individual or a company if it employed at most 5 employees during the last 12 months.

By writing the words ''WITHOUT PREJUDICE'' on a legal or demand letter it means that the recipient of the letter will not be able to produce your letter as evidence in court without your consent. The mention ''WITHOUT PREJUDICE'' is often used when letters are exchanged in view of settling a legal conflict so that settlement proposals exchanged between the parties will not be produced as evidence in court if the settlement talks do not succeed.

An injunction is an order issued by a judge to do or not to do something. The sanction for violating the provisions of an injunction is contempt of court which may result in a condemnation to pay a penalty and even jail time.

The delay which is called ''prescription'' or sometimes referred to in other jurisdictions as a ''statute of limitation'' varies depending on the nature of the obligation. In commercial matters it is generally of 3 years for contractual obligations. It is very important to verify the prescription delay as this may extinguish your rights if you do not take proceedings prior to the expiration of the prescription delay.

An ex-employee has by law a confidentiality and loyalty obligation to this former employer. He cannot leave with a client list and solicit the clients of his former employer. The former employer can ask that the court issues and injunction prohibiting the former employee from soliciting the clients and can seek damages from the ex-employee.

In Quebec you cannot claim the fees you pay to your lawyer for suing someone. There is a judicial tariff which provides specific amounts that you can claim. Generally the losing party is condemned to pay these to the winning party by the judge. Judicial fees generally represent a fraction of the actual fees that you pay to your lawyer. For instance, in most matters the judicial fees will be of $50.00 for a half day in court whereas your lawyer will cost much more!

Court costs are the filing fees, court stamp fees, bailiff fees, witness fees and stenographer fees that you incur in the course of legal proceedings. Generally the losing party is condemned to pay these to the winning party by the judge.

The law provides two general recourses in the event of the non execution of an obligation. Actual performance of the obligation; this is called specific performance or, the granting of compensatory damages in lieu of the performance of the obligation. Specific performance is often times the exception as it is difficult to force someone to perform an obligation. Generally the courts awards compensatory damages which serve to indemnify the creditor or provide sums to have the obligation performed by another person.

Generally a lease is signed for a fixed term and unless the lease agreement provides otherwise, you cannot cancel the lease without being liable for damages. If the lease does not provide for a right of cancellation, you may try to negotiate a cancellation of the lease with the landlord or try to sublet the premises. A lease is a legally binding contract that cannot be cancelled unless the lease provides this. If you cancel your lease, the landlord may claim damages from you as provided for in the lease agreement. If there is no damage formula in the lease then the landlord can claim from you the loss of rental for the unexpired portion of the term. If the landlord leases the premises to someone else during the unexpired portion of the term then the amount of rent collected will be deducted from his claim for damages. The landlord is obligated to minimize his damages and must diligently proceed to re-rent the premises and the courts will consider this when establishing damages. If the landlord was negligent in diligently proceeding to re-rent the premises then the courts will generally reduce his claim accordingly.