Published on December 11th, 2013 by Alan L Sklover
Question: Alan, I have a legal claim and would like to file a lawsuit. However a deadline is soon approaching, and I have not yet hired an attorney.
How can I get an extension of the time to file my lawsuit on my own, that is, without an attorney?
Answer: Dear Bonnie: As you may know, I am not licensed to practice law in Canada, so what I suggest below may not be applicable to you. However, it is applicable to most states and countries in which I have worked with “local attorneys,” and therefore I think it is likely applicable in Canada, as well.
1. A law that sets a time limit to file a lawsuit is called a “statute of limitations.” In the majority of countries, including Canada, laws specify how long after an “event” or “injury” takes place a person can sue for damages in what is called a “civil” case, or a prosecutor can prosecute the person in what is called a “criminal” case.
For example, in Canada, for “misdemeanor” or “summary” crimes, which are lesser crimes, there is a six-month criminal statute of limitations. After that period, a defendant can no longer be involuntarily prosecuted. However, for more serious crimes in Canada, there is no statute of limitation. So, for example, for a crime of robbery or rape, a prosecution can be brought even 30 years later.
In Canada, as in almost all countries, “civil” lawsuits have different “statutes of limitation.” A case for collection of a debt, for example, must be brought within six years. In the U.S., each state sets its own statutes of limitation for different criminal and civil cases. In Canada, statutes of limitation are established by both the federal and the provincial governments.
To find out the applicable Statute of Limitation for your case, you can probably find it out by conducting an online search engine search, or by contacting your local Court or Tribunal. And, too, an attorney might do you a small favor by looking it up for you.
2. In a “civil” case, that is, one brought by one person against another, to get an extension of time to file your case, you need to ask the “defendant” to agree to it, in what lawyers call a “Tolling Agreement.” As a general rule, if you want to sue a person or company, and the deadline for doing so is approaching, you have to ask the other person or company to enter into a “Tolling Agreement,” in which both “sides” agree to extend the time period for filing the Complaint.
Sometimes, the parties enter into a Tolling Agreement so that they can have time to speak about settlement of a case without filing in Court. Commonly, the “defendant” against whom a lawsuit is threatened will not agree to do this, unless it is in the defendant’s interests. No precise form of Tolling Agreement is necessary, but it is important to be clear about (a) the legal claim that is being extended, (b) when the Statute of Limitations is set to expire, and (b) to what date the parties agree to extend it.
3. However, sometimes laws do not permit Tolling Agreements, or limit their application. For example, in January of 2004, in Ontario, the Statute of Limitations for a breach of contract case was changed from six years to two years, and by that law it was declared that this two-year deadline applies “despite any agreement to vary or exclude it.” Also, in the U.S., after the Equal Employment Opportunity Commission permits a person to sue for discrimination in Federal Court, that person has just ninety days to do so, and the Courts have said that parties to the lawsuit have no ability to extend that deadline, even if they wish to or have agreed to.
4. Quite often the smartest thing to do is to quickly file the most minimal papers necessary to start your lawsuit on time, with the help of a Court Clerk, and then later amend your Court papers or have an attorney do so for you. If you are tight on time due to an approaching deadline to file your lawsuit, and you have doubts about whether your adversary will agree to sign a Tolling Agreement, you might travel to the Court and describe your dilemma to the Court Clerk, and request some minimal assistance in filing the necessary papers. This is what I would, indeed, recommend.
5. Some Courts, like the U.S. Federal Courts, have special Court Clerks called “Pro Se” Clerks, who work full-time for this very purpose. “Pro Se” means “For Yourself,” and I have heard many times of Pro Se Court Clerks showing people in your circumstances an example of a Court Complaint someone else has filed that you can use as a Model or Sample. In addition, I have heard many times of attorneys who are willing to show “samples” they have filed in the past to people in your situation. Also, many Courts have files online, available to all, and in this way, if your local Court does so, you might see a good sample to follow.
After your Court filing, and if necessary after “serving” a copy of the Complaint – that is, delivering it to the defendant – you can almost surely later “amend” your Complaint to make it better, or an attorney can do that for you.
Keep this thought in mind: If you do, at least, file “something” before the applicable legal deadline, you have a better chance of not losing your legal rights than if you just did not file “anything” at all.
Bonnie, I hope this is helpful to you. Don’t let your legal rights expire. I applaud you for standing up for yourself!! Please consider telling your friends, family and colleagues about our blog – we’d REALLY appreciate that!!
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