By Danielle Wong
When Candice Mullings was hit by a motorcycle three years ago, she didn’t sue because she thought it would be too much work.
Then last September, the motorcyclist served the third-year Radio and Television Arts student with a $500,000 civil suit for loss of wages, emotional damages and lifestyle adjustments. “I was scared out of my mind,” she said. “When you’re being sued for a half a million [dollars], that’s a pretty scary thing.”
But Mullings thought the whole thing was ridiculous. And after talking with her lawyer, she decided to countersue for $75,000.
Her case may be extraordinary but Mullings is not alone. Hiring a lawyer, filing a claim and navigating Canada’s convoluted legal process is an intimidating experience, and as a result many students allow themselves to be taken advantage of because it’s just not worth the trouble to fight.
However, there are resources available to victimized students. And as long as you know where to go, you’ve got a fighting chance.
When to sue
Whenever someone gets sued, it’s a civil case. These cases deal with contract matters and tort — negligible acts leading to damage or injury. Mullings, who got ten stitches, did four months of rehabilitation, was on crutches and wore a knee brace for two months, is a victim of tort.
But the two most common reasons a student would sue is for a commercial matter or a landlord-tenant issue, said Stewart Cruikshank, a lawyer with East Toronto Community Legal Services. Accidental damage and family law matters are also common civil cases.
A commercial matter can be as simple as getting ripped off for a purchased product, Cruikshank said. And landlord-tenant issues can involve poor health conditions in the residence or unexplained increases in rent.
Any action worth less than $10,000 goes to small claims court. All other cases go to the Ontario Superior Court of Justice.
Adrian Malcolm, a lawyer for Tatham & Pearson LLP, said the best thing for students to do is read up on their rights before they agree to anything. Look for fi gures in tenant contracts such as the deposit structure, utility fees and tenants’ insurance so that they are not paying more than they should.
“My advice is before you enter into any signed contract, have it reviewed by a lawyer if you can afford the cost,” he said.
Jacky Tam, a third-year aerospace engineering student, had his tenant contract reviewed by a lawyer and discovered that his landlord was charging him for the property tax — a fee the owner is obligated to pay. “The lawyer caught something I would’ve missed because of all the legal mumbo-jumbo,” he said.
Know your time frame
How much time you have to sue varies by case and is outlined in the Limitations Act on the Attorney General’s website.
In Mullings’ case, the motorcyclist sued her 20 days before the deadline, leaving her with less than two weeks to find a lawyer and file a claim.
But the hardest part, Mullings said, was finding a lawyer specializing in cases like hers. After meeting William Reid, the RSU’s free legal counsel, he referred her to a lawyer who then sent her to a third lawyer, Dan Holland, who specializes in insurance cases.
Still, Reid is a good first choice. And there are other lawyer referral services available, such as the Law Society of Upper Canada. It charges $6 for its referral service and provides a free halfhour consultation.
Students can also look for community legal clinics, such as the Aboriginal Legal Services of Toronto, the African Legal Clinic and the HIV and AIDS Legal Clinic.
Avoiding the large bill
Not surprisingly, it costs a lot of money to litigate. Filing a claim to small claims court costs $75, and $100 more to fi x a date for a trial. Lawyer consultation fees can also cost more than $200 an hour.
Malcolm recommends cash-strapped students go to CLASP (Community and Legal Aid Services Programme) at Osgoode Hall, a program dealing with youth and education matters as well as people with a low income.
RSU’s free legal counsel is another cheap resource. Because Mullings was referred through the school, her lawyer is only charging a $150 fee for fi ling the claim until they attend a preliminary court hearing.
Alternatives to taking someone to court include mediation, in which a neutral third party helps develop compromises, and arbitration, where the same third party makes a binding legal decision both parties must accept.
“It’s a lot easier if parties could come together to mediate, but that’s easier said than done,” Malcolm said. Ultimately, when deciding which route to take, it’s important to understand the situation and weigh the costs, Reid said.
“The threshold in any situation is whether the outcome, whatever that might be, is significant and, in particular, signifi cant enough to warrant the costs and risks that are always present in legal proceedings,” he said.
But as Mullings has learned from her ongoing suit, the most important factor is patience. “Know that it will take a long time to see results,” she said.