The decision to sue someone can’t be taken lightly. It takes a lot of time and money. You would probably be frustrated if a judge awarded you money but you couldn’t get paid because you didn’t identify the right person or company to sue.
Here is an example. Let’s say that you want to sue the shop “Happy Camper”. It would be a serious mistake to simply use the name “Happy Camper” without checking the official name of the company in a list called the Registre des entreprises du Québec. An official name is often very different from the name displayed in big letters in front of a store!
What about lawsuits against people under 18 years old? And should you sue the employee who harmed you, his employer or both? So many questions, so few answers…
In this article, Éducaloi explains how to identify the right person or organization (company, association, etc.) to sue.
What are the mistakes to avoid when suing a person?
Remember that you must sue the person or the people directly responsible for your damages.
How do you properly name this person in your court papers? You should use her official name as indicated in a government register called the État civil, and not a pseudonym or married name. (A pseudonym is a name used instead of a person’s real name.)
If you’re not sure of someone’s real name, it is acceptable to use a name that identifies her clearly, as long as you give proper notice of your lawsuit to the person. For lawsuits in small claims court, you must give the person’s right address to the court clerk. If you are suing based on a contract, you can use the name or initials the person used in the contract.
Finally, if the person challenges your lawsuit by saying that the person you sued does not exist, you can try to ask the judge to change the lawsuit to use the appropriate name.
If the person you want to sue is under 18 years old, see the question “Who to sue… a minor or her parents?”
If the person is incapacitated, read “Who to sue… an incapacitated person or her representative?”
If the person works for a company and you want to sue her in that capacity, read “Who to sue… the employer or the employee?
What are the mistakes to avoid when suing a store, a company, etc.?
Remember that you must sue the person or the people directly responsible for your damages.
The main risks in these cases are not putting the official name or suing the wrong people. If you make these mistakes, you might lose your case or be unable to recover any money.
To avoid this, do research the right legal structure and legal name of the company. You can find this information in the Registre des entreprises du Québec (REQ). When you search a name, a list of files will appear.
For example, if you write “Éducaloi” in the REQ search engine, a file appears explaining that Éducaloi was created under Part III of a law called the Companies Act. This means that Éducaloi’s legal structure is an incorporated non-profit organization.
The legal structure is very important, because different rules apply to different legal structures:
- partnerships – See “Who to sue… a partnership or its partners?”
- sole proprietorships– See “How to sue a sole proprietorship?”
- associations – See “Who to sue… an association or its members?”
- an incorporated organization (business corporation , non-profit organization, parish corporation, condominium association, etc.) – See “Who to sue… an incorporated organization or its directors and officers?”
You must then find the legal name in the REQ and put it in your lawsuit. For example, if you want to sue the store known to the public as “Happy Camper”, enter this name in the REQ search engine. After you click on the “Happy Camper” file, you might discover that the legal name is actually “Happy Camper Enterprises, Ltd.” or even something like “1234-5678 Quebec Inc.”.
During a REQ search, patience is a virtue. If you want to sue a large chain of stores or restaurants, you could find hundreds of files under the same business name! The address to the right of each file will help you locate the right place of business. Each place of business has its own legal name.
How do you sue a sole proprietorship?
When people don’t want to create a company, but they still want to use a business name for the services they offer, sometimes they use a sole proprietorship.
In these situations, they must register their business name in the REQ. For example, Justin Morin-Lemieux can have a snow removal company under the name “Snow Removal J.M.L. Reg.” The REQ will say that this is a sole proprietorship, whose owner is Justin.
In this kind of situation, you must sue the person who carries on the business, not the sole proprietorship. The sole proprietorship doesn’t exist legally: it’s simply a name.
Who to sue… an incorporated organization or its directors and officers?
If your search in the REQ showed that the organization you are looking for is incorporated then you must sue the incorporated body, not its directors and officers. The incorporated body is responsible for mistakes of the people who work there, including employees, directors and officers.
In your lawsuit, you must write down the legal name of the incorporated body, which can be found at the top of the REQ’s file card.
In exceptional cases, directors and officers can be sued directly. This would be possible, for example, if one of them does something fraudulent. You can find the names of the directors and officers, and their addresses, in the REQ file card for the incorporated body.
Who to sue… a partnership or its partners?
A partnership is a group of people called “partners”, who agree to do business together and split the profits. Your search in the REQ will indicate “general partnership” (société en nom collectif) or “limited partnership” (société en commandite).
You can sue the partnership only, or both the partnership and its partners. But the partners will probably try to postpone the lawsuit against them until a judge decides on the lawsuit against the partnership.
General Partnership (G.P.)
If the REQ says that the partnership you want to sue is a G.P., you can sue both the partnership and its partners, no matter which partner is directly responsible for your damages.
Let’s say that you delivered furniture to a partnership called “Black, Brown, White, G.P.” The REQ reveals 3 partners: Mr. Black, Mr. Brown and Mr. White. If Mr. Black ordered the furniture and refused to pay you, you can still sue the partnership and its three partners, even if Mr. Brown and Mr. White didn’t know that Mr. Black ordered something.
Limited Liability Partnership (L.L.P.)
If the partnership you want to sue is a limited liability partnership, you can still sue both the partnership and its partners.
However, the rules are a little different, because there are two kinds of partners: “general partners” and “special partners”. (You can check who’s a general partner and who’s a special partner in the REQ). Unlike general partners, a court can’t force special partners to pay more than the amount they invested in the partnership in the beginning.
Practical Considerations for Recovering Money
The law says that if a judge awards you money, you must first try to claim this money from the partnership. If the partnership doesn’t have enough funds, then you can turn to the partners to recover the money.
Who to sue… an association or its members?
You can sue an association under its usual name. If your REQ research reveals that it’s an incorporated association, the rules on incorporated organizations apply. In these cases, read the question “Who to sue… an incorporated organization or its directors and officers?”
You can also sue the member or members of the association who caused you damage. The name and the address of the members appear in the association’s REQ file.
If the judge awards you money and the association doesn’t have enough money to pay, you can sue the members to get paid. Note that only members who played a part in managing the association are responsible for the association’s debts, and only if these debts result from decisions they made. If no one was officially named to manage the association, the founding members are automatically considered to be the people managing the association. A member who never played a part managing the association will only be responsible up to the amount of financial contributions she promised to the association and unpaid dues.
Who to sue… an employer or an employee?
The law says that people and organizations are responsible for damage caused by people under their control and supervision, whether these people are employees, volunteers and even contractors. (The law calls these people “agents” or “servants”).
For example, a pharmacist who rents space in a pharmacy is not controlled and supervised by the pharmacy. If he makes a mistake when preparing your medication and causes you harm, you must sue the pharmacist, not the pharmacy.
The fact that the employer is responsible doesn’t take away the personal responsibility of the employee. This means that, depending on the nature of the employee’s actions (and how much money is at stake!), you can choose to sue the employee personally.
Be careful: the employee must have done something wrong! For example, if a saleswoman sold you a shirt that fell apart after one wash, it’s not her fault. It’s the fault of the store and the manufacturer. But she might be at fault if she stubbornly refused to give you a refund when the store’s policy was to give a refund automatically.
Note that it’s sometimes difficult to determine if someone has enough control and exercises enough supervision over someone else to be responsible for her actions. For example, some court decisions say that hospitals exercise enough control over a doctor, while some say they don’t.
Who to sue… a minor or her parents?
The law refers to a person under the age of 18 as a minor. A minor who causes damages can only be sued if she has reached the “age of reason”. This is the age at which a person is considered to understand the consequences of her actions.
But why would anyone sue a minor with no money? Because you have 10 years to recover any money awarded by a judge. In 10 years, a penniless teenager could become a well-off young adult! Also, the minor might be covered by her parent’s insurance policy, as long as her actions weren’t intentional.
It’s also possible to sue the parents of a minor, since the law assumes parents are responsible when their children cause damage. However, parents can avoid responsibility by proving they properly supervised or educated their child.
Finally, people whose job is to supervise, monitor or babysit children (teachers, monitors, supervisors, custodians, etc.) can sometimes be sued for the children’s actions while the child was under their supervision.
Who to sue… an incapacitated person or her representative?
Contrary to what you might think, an incapacitated person can sometimes be held responsible if she harms others.
It’s a case by case analysis to see whether the person has enough judgment to understand her actions and their consequences. Therefore, just because a person is under tutorship or because someone else manages her affairs through a mandate, doesn’t necessarily mean that you cannot sue her if she causes you harm.
However, it’s very unlikely that a judge will say that a person under curatorship understood her actions and should be held responsible for them.
The representative of the incapacitated person, (tutor, mandatary, curator, etc.) can also be included in your lawsuit by explaining that you are including her “as the tutor, mandatary, curator, etc., of XYZ (the incapacitated person).”
Note that the representative is not personally responsible for the fault of the person she represents, unless she made a serious or intentional mistake in failing to properly supervise the incapacitated person. But if the representative directly caused you harm, you can personally sue her without mentioning that she is also a representative.