Who to Sue: Naming the Right Defendant in Ontario
A judgment is only as good as the name on it. If you sue a business name that is not a legal person, or the wrong company, you can win and still be unable to collect. A little checking before you file saves a lot of trouble.
- Sue the legal person, not just a trade name. A business name is not always a separate legal entity.
- Corporations, partnerships and sole proprietors are named in different ways.
- Public searches, such as the Ontario business registry, show who is behind a business and where to serve them.
- If you name the wrong party, you can often amend the claim, but it costs time and, in some cases, may run into a limitation period.
Who is behind the name
- Sole proprietor: a person trading under a business name. Name the person, and add the business name, for example Jane Smith operating as Smith Plumbing.
- Partnership: name the partnership under its registered name, and consider naming the partners.
- Corporation: name the corporation with its exact legal name, including Inc., Ltd. or Corp., or a numbered company.
- Non-profits, clubs and associations can be harder. Find out whether it is incorporated.
How to find out
- Search the Ontario Business Registry for the business name and the corporation.
- Get a corporate profile report, which lists the legal name, the registered office, and officers or directors.
- For a sole proprietor, a business name search can show the person registered to use the name.
- Look at your contract, invoice, receipts and emails to see who you actually dealt with.
People who may be personally responsible
A corporation is usually the only party responsible for its debts, but there are situations in which others can be liable, such as a person who made a personal guarantee, a person who acted outside their role, or a director in specific statutory situations. See the guide on director liabilities.
Where to serve them
- For a corporation, the registered office or a person in charge of the head office.
- For a sole proprietor or partner, the person, or the usual place of business, as the rules allow.
- Use a method that lets you prove service. See the guide on serving court documents.
If you named the wrong party
A claim can often be amended, or a party added, but the limitation period and the court's discretion can matter. A claim against a business that does not exist as a legal person can be difficult to enforce. Check carefully before filing, and take advice if the name has changed or the business has closed.
Common questions
Can I sue a business just by its trade name?
It is safer to name the person or corporation behind it as well. A trade name alone can make a judgment hard to enforce.
What if a company has been dissolved?
A dissolved corporation is a problem, because there may be nothing to collect from. Get advice on whether anyone else is responsible.
Who can help. Licensed paralegals can represent people in Ontario's Small Claims Court, including at settlement conferences and trials.
This guide is general information for people in Ontario, not legal advice. Rules, forms and deadlines change, and every situation is different. Check the current rule or speak to a licensed legal professional before you act.
Not sure where you stand? A licensed paralegal can look at your documents and tell you your options.
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