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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: 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.

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

Our commercial litigation team has experience with a broad range of industry sectors

We understand your business. The sectors we service include:

  • Oil and gas
  • Commercial real estate
  • Construction
  • Real property development
  • Insurance and retail businesses.

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.

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