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Commercial Litigation

Commercial Litigators in Calgary

We are experienced commercial litigators offering practical advice to help your business navigate conflict. We approach business conflicts differently: we manage our files in a civil and professional manner with your bottom line in mind. 

From controlling legal costs to protecting long-term relationships, we understand that the risk of commercial litigation extends well beyond the courtroom. This is why we consider a range of dispute resolution techniques from the traditional court process through alternative dispute resolution processes such as arbitration and mediation. 

We help you understand and manage these risks, delivering outcomes that meet the goals of your business.

Local Presence Global Reach

We are Calgary-based litigation boutique with a local and international client base. 

We act for local clients in our region and abroad and offer an international network of expert contacts serving clients as counsel in complex litigation and arbitration work.

We act for US and other international clients in litigation and arbitration matters in Alberta before both the courts and under international arbitration rules.

Commercial Litigation Lawyers

Our commercial litigation team has experience with a broad range of industry sectors. We understand your business. The sectors we service include:

  • Agriculture
  • Manufacturing
  • Oil and gas
  • Petrochemicals
  • Mining
  • Commercial real estate
  • Construction
  • Real property development
  • Insurance
  • Retail businesses

Litigation Strategy

We ensure your litigation strategy matches your business strategy. After ensuring that we understand your business and your business goals, we work with you to provide legal options that match your business priorities. These options might include a different negotiation strategy, mediation, arbitration or court proceedings. We will work with you to identify the expected costs, and likelihood of success.

Where going to court is necessary, we are well prepared. Our commercial litigators have extensive experience before all levels of Alberta’s Courts and with mediation and arbitration (including international arbitration).

We Are a Full-Service Commercial Litigation Group

Whether your matter requires a skilled business negotiator, complex trial work or alternative dispute resolution services like business-to-business mediation or arbitration, we are here to assist you. Our extensive experience includes:

Commercial Litigation Matters

A small, but representative, sample of recent matters handled by our litigators:

  • Representing a major shareholder in an oppression action against a local transportation company
  • Acting on behalf of an overseas construction company in a contract dispute with a local supplier
  • Representing an aerospace and defence manufacturer in a product liability case
  • Multi-party construction dispute related to construction deficiencies

I am a sole proprietor. Will you assist me?

We work for all sizes of business, and our clients range from individuals with successful home-based businesses to multinational corporations. Please contact us to discuss what type of counsel we can provide to assist you.

We have a complex contractual dispute, but need it resolved more quickly than can be done in court. Can you assist?

Increasingly, businesses are opting to seek resolutions to their disputes outside of the court system. This has resulted in the growth of arbitration and mediation. Our experienced counsel can assist you with either a mediation or arbitration. If you are seeking a mediator or arbitrator, we have experienced counsel who are qualified to act as a mediator or arbitrator to help you resolve your dispute.

I am an American or International Company, and I have a dispute with a Canadian company. What do I do?

We frequently act for American and other international companies seeking to enforce foreign judgments, or otherwise resolve disputes with Canadian companies.

We have experience acting for foreign entities under the Reciprocal Enforcement of Judgments Act to pursue collection of judgment debts in Alberta. We also have experience in international arbitrations. These arbitrations can prove to be a more efficient way to resolve complex international commercial disputes.

Give us a call to see how we can assist you with finding an efficient solution to your cross-border dispute.

I am a Canadian company, and I have a dispute with a company overseas. What do I do?

Litigating with foreign companies is complicated. We can help.

First, we will discuss with you the nature of the business relationship, and which law governs. We will then talk about potential solutions including bringing a claim in Canada, beginning an arbitration, or assisting you in retaining appropriate counsel in a foreign jurisdiction. Rest assured, our team has the experience to assist.

Contact us to see how we can make this easier.

How can I enforce payment of a debt?

So—somebody owes you money. How can you collect it? 

As the person who provided the money, you are the creditor. The person you loaned money to is the debtor

The first thing to think about is where the debt obligation comes from. Did someone make a verbal promise to you? Or did you sign an agreement with another person setting out the terms of the arrangement? Verbal promises are more difficult to enforce, but not impossible. Written agreements can be somewhat easier to enforce as there are usually terms specifying the amount owed, when it must be repaid, etc. It is important to review the terms of any written agreements to understand both parties’ rights and obligations in respect of the debt. 

Depending on the terms of the agreement (verbal or written), you may be obligated to take certain steps when you wish to enforce payment of the debt. For example, you may be obligated to issue a formal demand for payment to the debtor. You may be required to give the debtor a certain amount of time to pay the debt back after making the demand. 

The best option for enforcing payment of a debt is usually litigation. You will file a claim and ask the Court to issue judgment in your favour against the debtor. Unfortunately it often takes a number of years for claims to proceed through the litigation process to judgment. However, once you have a judgment from the Court, there are a number of useful enforcement steps you can take. These steps include registering a lien against the debtor’s property, garnishing the debtor’s wages, seizing certain assets belonging to the debtor, etc.

Alternatively, you may wish to pursue a negotiated settlement. Settlement is often preferable as it generally takes less time and costs less. You may be prepared to accept some lesser amount, or allow the debtor to make installment payments, to avoid the costs and delay associated with litigation. There are terms you can include in the settlement to protect your interests and/or give you stronger enforcement options. 

We can help you determine the most appropriate steps to take to enforce your debt. Depending on the terms of any agreement in place, the amount of the debt, the debtor’s ability to pay, and your desired outcome, we can develop a strategy to help maximize your recovery. We invite you to contact us to discuss. 

If you would like more information about enforcement or collection of debts, or if you would like to discuss any other litigation matters, please contact a member of the Carbert Waite Commercal LItigation Group

What is an Anton Piller order and should I file one?

An Anton PIller Order is essentially a civil search and seizure warrant. It allows one civil litigant to search and seize another civil litigant’s property. This can include someone’s assets, inventory, property, computers, phones and other digital storage devices. To obtain an Anton Piller Order, you must establish four key elements:

  1. A strong prima facie case, meaning the evidence presented is so strong that there is a strong likelihood the plaintiff will ultimately be successful in proving their allegations;
  2. Very serious damage to the plaintiff caused by the defendant’s alleged misconduct;
  3. Convincing evidence that the defendant has incriminating documents or things; and
  4. A real possibility that the defendant will destroy the material to be seized, thus preventing the Courts from learning the truth of what occurred.

(Celanese Canada Inc v Murray Demolition Corp2006 SCC 36, at para 35)

Anton Piller Orders have been used is many different settings, including:

  • In lawsuits against counterfeiters.
    • The intellectual property owner will use an Anton Piller Order to seize counterfeit goods before the defendant has an opportunity to destroy the evidence;
  • In employment lawsuits, especially those involving breach of confidentiality, or alleged stealing of trade secrets or other intellectual property.
    • Employers will use an Anton Piller Order to seize an employees equipment, computers, or phones to prevent the employee from abusing the confidential information or destroying the evidence of their wrongdoing.
  • In lawsuits against unauthorized or illegal use of software
    • The intellectual property owner will use an Anton Piller Order to prevent the defendant from continuing to use or sell unauthorized/unlicensed copies of software or destroy the unauthorized/unlicensed copies.

Given the extreme nature of an Anton Piller Order, obtaining an Anton Piller Order requires an Application to the Court and the applicant has a high burden of proof. However, the applicant can attend without notice to the defendant.

In the proper circumstances, Anton Piller Orders are effective tools to protect evidence and ensure fairness in civil disputes.

The lawyers at Carbert Waite LLP have experience with Anton Piller Orders and can advise if such a remedy is appropriate.

What are my options if a debtor truly does not have the money to pay a Judgment?

A sad reality for many Creditors is the inability to collect on their Judgment. After going through the litigation process, the money they are owed is simply gone and the Debtor has no money to their name, or so few assets that collection efforts are unprofitable. In these circumstances, the Creditor’s best option may be patience. The law makes Creditors responsible for collecting on the Judgment, but gives Creditors a long period of time to collect.

The first step is to ensure all the registrations associated with enforcing your Judgment are kept up to date because they can expire.

  • Judgments are valid for 10 years and may be renewed for an additional 10 years by an Application to the Court of Queen’s Bench. However, you must apply to renew the Judgment before it expires.
    Writs of Enforcement are valid for two years and must be renewed before they expire.
  • The Writ of Enforcement should be registered at the Personal Property Registry. You must also register a Status Report at the Personal Property Registry every two years, before the Writ expires, to keep it active.

The law compels Debtors to give a Judgment Creditor a list of all their assets. This is done by the Creditor issuing a document called ‘Financial Statement of Debtor’ to the Debtor. This document can be issued to the Debtor once a year and a Debtor may be Questioned about their assets. Once assets are identified, Creditors can garnish the Debtor’s wages or bank accounts, or seize assets.

Since the Judgment is valid for many years and the Writ can be renewed, Creditors are able to wait and see if the Debtor’s financial position improves over time and take enforcement efforts once the Debtor is in a better financial position.

In short, the best route to collecting from a Debtor that truly does not have assets may involve a bit of patience and perseverance. However, Creditors must follow the rules set out by the Alberta government to enforce successfully. Contact us to see how we can help.

What are my options if the debtor is a corporation?

The process for collecting from a corporation is similar to collecting from an individual. The Creditor can issue a Financial Statement of Debtor, seize assets (through a Bailiff / Civil Enforcement Agency) and issue garnishments. One additional benefit is that the Creditor can compel any director or officer of the Corporation to attend to be Questioned about the Corporation’s assets. The Creditor may also compel an employee or former director or officer of the Corporation to be Questioned (with a Court Order). Depending on the circumstances, another option may be to push the Creditor into bankruptcy. Contact us so we can outline your options.

How do I collect a judgement if I do not know where the debtor’s assets are?

If you have a judgment against a debtor, the debtor may be compelled to disclose the location of all its assets and income sources to you. 

You first send a Financial Statement of Debtor Form (Form 13) to the debtor. Once you serve this Form 13 on the debtor, they are required by law to return the completed form within 15 days of receiving it. This form requires the debtor to list their employment information, all their assets, and any additional information about sources of income. Where the debtor is a corporation, the same process applies using Financial Statement of Debtor Form (Form 14).

After serving the Form 13 or Form 14, you can also serve a Notice of Appointment for Questioning (“Notice”) on the debtor. A Notice requires the debtor to attend for questioning where they can be asked about their assets. If the debtor is a company, you are entitled to question any director or officer of the company. This Notice must be served at least 5 days before the date of the questioning.

The purpose of questioning is to obtain more and better information about the debtor’s financials and to fill in any gaps left by the information in the Form 13 / Form 14. The goal is to understand if the debtor has any assets and where those assets are, so you can seize their assets or otherwise realize your judgment against those assets. 

If the debtor refuses to cooperate with the above process, a court can find them in civil contempt of court. The consequences of being noted in contempt are quite severe.

Compelling a debtor’s cooperation and obtaining the information required to enforce a judgement can be difficult. Contact one of our Commercial Litigation lawyers for assistance.

What is the process for seizing a debtor’s assets in Alberta?

In Alberta, a debt or judgement can be enforced by seizing the assets or possessions of the debtor, by garnishing their wages, or garnishing their bank accounts. 

Asset seizure is subject to a specific process that creditors must follow. This process is outlined below:

  • (1) Register your judgement.
    • If the Court awards a judgement in your favour, the first step is to register the judgement before taking steps to enforce it. 
    • The judgement is enforceable for 10 years before it expires. However, you can file an application to renew the judgement before the 10-year period expires. 
  • (2) Send a demand letter.
    • Send a copy of the filed judgement to the debtor and attach a letter demanding payment of what is owed.
    • We strongly encourage you to try and find a resolution where the debtor willingly pays the judgment. You can agree to a payment plan, agree to accept payment of only part of the judgment, or agree to be repaid in some other way. 
  • (3) File and register a Writ of Enforcement.
    • A Writ of Enforcement is the starting point for taking any steps to formally enforce your judgement. If several creditors have judgements against the same debtor, each one may file a Writ.
    • The filed Writ should then be registered at the Personal Property Registry (PPR) and Land Titles Office (LTO) to establish your claim against the debtor’s personal property and real estate.
  • (4) Seize assets through a Civil Enforcement Agency.
    • In order to seize any assets, you must retain a bailiff through a Civil Enforcement Agency 
    • Several documents will be required by the Civil Enforcement Agency before it will make the seizure. Specifically:
      • Search – a Distribution Seizure Search from the PPR to verify your Writ has been registered with the PPR and is active. It will also indicate any creditors that have a priority over your claim against the property you wish to seize.
      • Warrant – to authorize the Civil Enforcement Agency to enforce your Judgement by seizing the property of the debtor. 
      • Notice of Seizure of Personal Property – to notify the debtor that their property is being seized to satisfy the debt or judgement.
      • Notice of Objection to Seizure of Personal Property – provided to the debtor to allow them to object to the seizure.
    • The Civil Enforcement Agency may also require a copy of the Writ and a letter of instruction from you before they can carry out the seizure. 
    • Once the Civil Enforcement Agency has all the documents it needs, a bailiff will attend the debtor’s residence or place of business. They will serve the Notice of Seizure which lists any items seized. The seized items may be removed or instead left where they are under a Bailee’s Undertaking. Under the Bailee’s Undertaking, the debtor agrees not to remove or sell the goods. If they do, they could be subject to criminal or civil penalties. 
    • The debtor has the right to object to the seizure. If the debtor objects, a Court hearing will take place to determine if the creditor has the right to seize the goods.

Seizure can be a complicated method of collection but creditors who pursue collection efforts wisely are often successful in realizing all or part of their judgment. Consult one of our Commercial Litigation lawyers to find the best way to enforce your judgment. 

Frustration, Force Majeure and Contracts During the COVID-19 Pandemic

This post will describe two mechanisms to relieve parties of their contractual obligations due to COVID-19: force majeure clauses and the frustration doctrine.

With Prejudice” vs. “Without Prejudice”

In attempts to resolve a dispute, parties will often exchange settlement offers labeled “without prejudice.” Sometimes, they are labeled “with prejudice.” These terms are often taken for granted, however they have important legal meanings.

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Carbert Waite LLP