Who can sue and be sued?

When a party to be involved in litigation is under a disability, deceased or is a partnership or corporation, identifying the appropriate party is an important consideration. A person is considered under legal "disability", and therefore unable to sue or be sued, if:

  • an individual is a minor (under the age of 18 years of age),
  • an absentee under the meaning of the Absentees Act, or
  • a person is mentally incapable to retain and instruct legal counsel.

With the exception of respondents in applications under the Substitution Decision Act, 1992, proceedings involving a person under legal disability must be commenced, continued, or defended by a litigation guardian unless the court orders or a statute provides otherwise. A minor's parent or another relative often acts as a litigation guardian, however, where the parent or relative was involved in the incident in question it may not be possible to act due to a possible conflict of interest.

The litigation guardian must ensure that the interests of the party under disability are protected and, accordingly, take all steps necessary to achieve this obligation. The law requires that a litigation guardian other than the Children's Lawyer or the Public Guardian and Trustee be represented by a lawyer and cannot act in person.

When dealing with claims regarding a deceased party, as a general rule, a proceeding may be brought by or against an Estate Trustee as representative of an estate or trust and its beneficiaries, without joining the beneficiaries themselves as parties. However, there are instances where it would be inappropriate for the representatives alone to be parties and the beneficiaries must be joined. Should there not be an appointed Estate Trustee, the court may appoint a representative for the estate where it appears that the estate has an interest in, or may be affected by, a legal proceeding.

In those instances where a partnership is to become a party to a civil action, a choice needs to be made as to whether the action should be brought against the partnership itself or the partners individually. One exception to this is where the plaintiff to the claim believes that the individual partners owed a duty to the plaintiff over and above that of the partnership. In most cases, it would generally be more advantageous to bring the action against the partnership. One advantage in particular is that if the composition of the partners change, the action against the partnership can still continue.

Those parties bringing actions against a corporation, compared to those against partnerships, have no choice as to which party to name in the suit. The corporation itself must be named. However, care must be taken to ensure that the cause of action is with the corporation and not with an individual stakeholder in the corporation, such as a director or shareholder. Where the corporation is to be the plaintiff in a lawsuit, its directors have the ability to bring the action on the corporation's behalf. A corporation must normally be represented by a lawyer in a legal proceeding unless the court orders otherwise.