Litigation Tips for Your Ontario Contract Breach Claim

When faced with a contract breach, take some time to educate yourself before running off to hire a lawyer or – if unable to afford legal assistance – filing a statement of claim as a self-represented litigant. What follows are some litigation tips for your Ontario contract breach claim that you should keep in mind.

Weigh the Costs of Litigation Against The Award You Are Seeking

Litigation is risky, mostly because it can be costly. If you’re a self-represented litigant, don’t assume that you’ve insulated yourself from legal costs by acting as your own lawyer. If you are choosing to litigate your contract claim in Ontario Superior Court, you have to consider the cost consequences of losing.

In Ontario, the costs generally follow the result. If you have filed your claim in the Ontario Superior Court of Justice and you lose, then you have to consider the legal bill of the opposing party, which you may have to cover either on a partial or substantial indemnity scale, often dependent on the parties’ conduct of litigation or whether there was a settlement offer in play (more on that below).

Consider, then, whether your claim might be better suited for small claims court. Though you are limited to a damages award of $35,000, the process in this court is much simpler, and the cost consequences of covering the opposing party’s legal fees are capped at a far lower rate, at just 15% of the amount you are claiming. So, if you are seeking the maximum allowed award of $35,000 in small claims, and you lose, the most the other side can claim against you in legal costs is $5,250.

Assuming the amount you are seeking is well above the $35,000 small claims limit, you should factor in your tolerance for absorbing a potentially catastrophic cost award in the event you lose in Ontario Superior court; whether the other side is represented by counsel; whether you are sophisticated enough to handle the more complex procedures in this court (even if proceeding under Simplified Procedure); consider the other side’s willingness to settle; and most crucially, educate yourself on the strengths and weaknesses of your contract breach claim.

Moreover, keep in mind that, as a self-represented litigant going up against a represented party in Ontario Superior Court, your odds of succeeding are far less. Though you might not be able to afford full scope counsel, if you are otherwise sophisticated enough to navigate this court on your own, consider whether you have the budget to retain a lawyer to assist you on a limited scope, task-by-task basis to help you strengthen your claim when the need arises. Seeking litigation assistance, no matter how small, need not be an all-or-nothing proposition. Any kind of professional assistance that might increase your odds of success may work toward insulating against the costs of failing in court.

If you decide to proceed to small claims court, also consider that you have the option of accessing the comparatively more affordable services of a paralegal, who is able to provide legal services to members of the public in small claims matters.

Educate Yourself on the Strengths and Weaknesses of Your Contract Breach Claim

Though you may be absolutely certain that you have a slam-dunk case against the opposing party, you’re not the one to make that determination. The judge will. However, you don’t know what is in a judge’s mind. How will they approach your evidence? How will they respond to your opposing party’s legal defence?

Though you can’t predict the decision or temperament of any particular judge, you do have available options to manage the exercise of their discretion – specifically, by researching case law to see how courts have dealt with similar contract disputes.

In Ontario, courts operate under a system of common law, which means that judges generally consider or follow case law precedent to guide their decisions, particularly where cases are materially similar on their facts.

Case law research enables you to get a more objective perspective on the strengths and weaknesses of your contract breach claim. When you read enough cases on your area of dispute (even where the facts and circumstances differ), you start to get a feel for how the judicial frame of mind operates – how a judge approaches questions of credibility, what legal principles they apply, and – most crucially – the factors the judge looks at in considering whether a contract breach has occurred, including the kind of remedy most appropriate to the breach in question.

.If you can’t afford a lawyer to help with legal research, you nevertheless have options to conduct your own case law research through free online databases such as Canlii.org.

For self-represented litigants, case law research is the gift that keeps giving. Not only may you use cases to assist you with guiding a judge’s exercise of discretion, but case law may also provide you with a familiarity of the concepts and legal terms that are most pertinent to your litigation dispute. Best of all, there is no copyright that applies to your legal submissions,. Feel free to liberally borrow some of the phrasings used in the judgments you read. It may help to make your written submissions come off as more “lawyerly”, telegraphing to the court that you have a solid grasp of the strengths of your case – that you’re not just going by your gut, but that you are anchoring your contract breach claim to sound legal principle and judicial precedent.

Best of all, a solid grounding in the pertinent case law relevant to your circumstances – before you’ve made the decision to file your claim- will help you to determine how strong your contract breach claim actually is, which will help you in turn to weigh the costs and benefits of proceeding in one court or the other.

Consider Whether The Contract Terms in Question Are Clear and Unambiguous

In contract breach claims, it is common for each party to dispute the interpretation of a clause in the agreement (if written). Sometimes, a contract might be verbal or implied by a consistent pattern of conduct in respect of which one party relied.

When such interpretive disputes occur, the court may consider whether there was ever a “meeting of the minds,” whether any binding agreement had been in place between the parties.

Where the written terms of an agreement are too vague to account for a circumstance not sufficiently covered in the contract, the judge may look to outside evidence to determine the intended meaning.

Where a written contractual term is equally capable of being read with two very different meanings, the principle of contra proferentem may apply, with the court interpreting any ambiguity against the party who drafted the term. However, where there exists outside documentary evidence of back and forth negotiations prior to the ambiguous term being drafted (often in the form of emails or texts between the parties), such evidence may factor into how any such ambiguous terms will be interpreted.

Consider The Conduct and Expectations of Each Party at Every Stage Leading up to the Breach

Though you may have a clear subjective sense of your own expectations as to the duties of each party to the contract, the judge’s role is to get a more objective sense as to whether each party’s expectation was reasonable under the circumstances.

Often the judge will not only examine the written terms of the contract, but will also consider the surrounding circumstances: Did one party exercise undue influence over the other in bargaining for the agreed upon terms ? Were both parties sufficiently sophisticated to understand the terms they bargained for? Did each party receive independent third party advice before signing? Do some of the contract terms appear unconscionable when considering the reasonable expectations of each of the parties?

Some or all of these factors may be looked at when the court considers your contract breach claim. In considering the reasonable expectations of each party in the performance of the contract, the judge may look at the overall “business sense ” of the contract. Ultimately, what kind of bargain does each party seek to gain from this agreement?

If, for instance, your legal position on the opposing party’s contractual obligations tends to undercut the “business sense” of the agreement, it may be a sign that your position may be objectively unreasonable.

You’ll see the term “reasonable” showing up quite frequently in case law. Though it might strike you as a squishy term, consider that this factor of reasonableness is actually anchored in the legal principles that are applied in cases conceptually analogous to your own.

That’s why you should take the time to educate yourself on the case law most relevant and similar to your circumstances – it provides you that fundamental ability to step outside your own narrowly subjective perspective and put yourself in the shoes of other litigants who went before you, including the judge who presided over their case.

In the end, getting that kind of perspective as a self-represented litigant may make all the difference between success or failure with your contract breach claim.

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The preceding should not be relied on as legal advice.  It is offered as general information only, on an as is basis.

James Cooper, a Toronto area lawyer, provides flexible limited scope retainer arrangements and affordable legal help for self-represented litigants (in both civil litigation and family law cases) and for sophisticated clients concerned with managing their legal fees.

Mr. Cooper serves the Greater Toronto Area (including Markham, Scarborough, Vaughan, Etobicoke, Richmond Hill, Mississauga, Oakville, Newmarket, Barrie) and throughout the Province of Ontario.

He may be reached at (905) 737-9994 for an initial free phone consultation and a fixed fee quote.  Mr. Cooper may also be reached by email at his web site SelfRepLawyer.ca