Litigation
The Art of Advocacy: Experience,
Intellect & Passion
Our firm's litigation lawyers
are skilled litigators who bring to every case a substantial amount of
experience, intellect and most important of all a strong desire to win. Accordingly, we are best suited for those occasions where you need lawyers
who will put in the extra effort to resolve a dispute.
Our firm provides litigation
services in a number of areas, including those listed below. Our lawyers
have experience at all levels of courts and tribunals in Canada and abroad
in addition to extensive experience with alternative dispute resolution
processes, such as mediation and arbitration.
In addition to our domestic
clients, on a regular basis, our lawyers act for foreign individuals and
companies or their attorneys regarding disputes where an opposing party
or property that is the subject of the dispute is located in Canada.
For an overview of the civil
litigation process in Ontario, please read the article below:
The Civil
Litigation Process (Ontario)- An Overview
By Steven Bellissimo
You have made all reasonable efforts to resolve a dispute with someone.
You have talked to them, you have sent letters, you have contacted your
litigation lawyer and they have sent letters, and still you have not received
an adequate response or resolved the dispute. What next? Often times,
the next step is to begin a lawsuit. It is a fact that the costs of going
to Court in Ontario can be very significant.
However, what you may not realize
is that there are three different "levels" of Court in Ontario
(Superior Court of Justice, Simplified Rules in the Superior Court of
Justice and Small Claims Court) and that the costs of going to Court can
vary, depending on the level of Court that is selected. Why the difference?
The reason why costs can vary from one level to another is because of
the different rules and expectations that the Courts have on litigants.
More detail on the different levels of Court is provided below.
Ontario Superior Court of Justice
(Damages Over $50,000.00)
The first and the most expensive
level of Court to litigate in is the Superior Court of Justice for when
a dispute involves an amount over $50,000.00. If litigating in Toronto,
all actions are case managed and a Judge or a Master is appointed to every
case to ensure that it moves along in a timely manner. The basic steps
in the process are as follows:
- Issuing a Statement of Claim;
- Replying to the Statement of Defence;
- Attending a Mandatory Mediation;
- Preparing an Affidavit of Documents;
- Attending Examinations for Discovery;
- Answering undertakings and dealing with motions before trial;
- Attending a Trial Scheduling Court date;
- Attending a Settlement conference;
- Preparing for trial; and
- Attending at trial.
Statement of Claim
The litigation process is commenced
by issuing a Statement of Claim. The claim sets out the facts and the
legal grounds that the Plaintiff is relying on in their claim against
the Defendant. Once the claim is issued by the Court, it must be served
on the Defendant. The Defendant has 20 day to respond to the Claim. If
the Defendant does not respond to the claim, then the Plaintiff can move
to obtain default judgment from the Defendant.
Replying to the Statement of
Defence
Once the Defence has been provided to the Plaintiff, the Plaintiff has
an opportunity to reply to the Statement of Defence.
Affidavit of Documents
After the parties have filed
their claims, the first step in the process is for all parties to prepare,
swear and serve their Affidavit of Documents. An Affidavit of Documents
is a sworn document that contains all the documents that the party has
in its position that are relevant to the litigation between the parties.
For example, in a dispute over a contract, a copy of the contract, letters
between the parties, invoices and cancelled cheques, would be some of
the documents included in the Affidavit of Documents.
In more complicated litigation,
a lawyer will often have to attend at the premises of his/her client and
review all the documents to ensure that the Affidavit of Documents is
accurate and complete.
Mandatory Mediation
The next step in the process
is a Mandatory Mediation. At a Mandatory Mediation, the parties to the
litigation attend, with their lawyers, in front of a neutral Mediator
that attempts to resolve the dispute between the parties. Generally, the
Mediator is an experienced lawyer or a retired Judge.
Discussions at the Mandatory
Mediation are confidential and any offers to settle that are exchanged
during the Mediation cannot be raised in the future during the course
of the litigation.
Ultimately, at the Mandatory
Mediation, it is up to the parties to resolve their dispute, with the
assistance of the mediator and their lawyers. However, a mediator does
not have the power to force a settlement.
Examinations for Discovery
If the parties are unable to
resolve their dispute at the Mandatory Mediation, the next step in the
process is an Examination for Discovery. As part of this process, the
lawyer for the Plaintiff gets an opportunity to ask questions of the Defendant(s)
under oath, and vice-versa.
The discovery process can be
very expensive because a lawyer will have to prepare the client prior
to the date of attendance at discovery. The discovery itself can be as
short as one hour and can be as long as a few months depending on the
complexity of the litigation and the number of issues involved.
Undertakings and Motions before
trial
Quite often, during the course
of discovery, there is information that the party answering questions
cannot readily provide to the other side. As part of the discovery process,
the parties can provide answers to questions or copies of documents in
the time period following the discovery. When a party promises to do this,
they are giving an undertaking. A party that does not comply or satisfy
an undertaking can face the punishment of a Judge or Master.
On occasion, a lawyer, during
the course of the discovery process, will refuse to allow his/her client
to answer a question. The parties, rather than delay or waste time arguing
about the issue at the discovery, can go to a Judge or Master after the
discovery and force the party to answer the question if the Judge or Master
believes the question was relevant and appropriate.
Trial Scheduling Court
Once all the refusals and undertakings
are dealt with, the parties attend in front of a Judge to get a date for
trial. The complexity and length of trial will determine how quickly the
parties can have their matter(s) resolved. Currently, short trials (i.e.
less than five days) can be booked within a few months. Receiving a hearing
date for longer trials (i.e. more than five days) can take any where from
six months to two years.
Settlement Conference
A settlement conference occurs
before trial and takes place in front of a Judge. Usually, by the time
the settlement conference takes place the parties will be ready to go
to trial and will have the documents that they will be relying on and
will have reports from their experts.
The lawyers for the parties,
in advance of the conference, send the Judge a brief summary of their
arguments along with any relevant documents. When the conference takes
place, the Judge will listen to the lawyers (note: litigants do not attend)
and try to achieve a settlement. Sometimes, the Judge will give an opinion
on how he/she would decide the case if they were the presiding Judge at
trial. It is important to know that the Judge that presides over the conference
cannot be the same Judge that presides over the trial. This is necessary
to ensure that the parties speak freely and openly. A Judge at a settlement
conference cannot force a settlement.
Trial
Of all the steps that have been mentioned, the trial is generally the
step that is not reached during the course of litigation. The vast majority
of disputes settle before reaching trial. Trials are expensive.
In particular, first, the parties
will have to pay their lawyers to prepare for trial. The general rule
is that for every day of trial time, there will be two days of preparation.
Therefore, if a trial is going to be five days long, often times the client
will have to pay a lawyer for fifteen straight days of work (ten days
preparation and five days of trial time). During the course of a trial,
a lawyer will often work from early in the morning until late at night.
The client will be responsible for paying all these costs.
In addition to the legal fees,
the litigants will have to take time out of their schedules to prepare
for the trial and to attend at the trial. This will result in lost time
from the business that cannot be recovered.
Finally, trials are unpredictable
and it is difficult to predict the outcome of a case. It is for the foregoing
reasons that over ninety (90) percent of actions settle before the beginning
of trial.
Ontario - The Simplified Procedure
The next level of Court is
the Simplified Procedure in the Superior Court of Justice. This level
deals with cases involving claims between $10,000.00 and $50,000.00.
The Simplified Rules process
eliminates some of the more costly steps that form part of the process
in the Superior Court for actions over $50,000.00. In particular, the
Simplified Rules eliminates: Mandatory Mediations, Examinations for Discovery
and the undertakings and refusals process. Instead, the parties are required
to set out, in their Affidavit of Documents, the names of any witnesses
that might have information on the dispute between the parties.
One important difference in
the Simplified Rules is that the parties in addition to their lawyers
will appear in the settlement conference (called a Pre-trial) in front
of a Judge.
Generally, the conduct of litigation
in the Simplified Rules is quicker and less expensive than the conduct
of litigation for claims over $50,000.00. Often times it may make more
economic sense for a party that has a claim for $51,000.00 to $60,000.00
to select the Simplified Rules and to sue for $50,000.00 because the legal
costs involved in pursuing the full claim in the Superior Court may exceed
the extra $1,000.00 to $9,000.00 that the party can recover.
For further information about
the Simplified Rules, visit
http://www.attorneygeneral.jus.gov.on.ca/english/courts/manmed/rule76factsheet.asp
Ontario Small Claims Court
The Small Claims Court of Ontario
is for claims between $1.00 and $10,000.00. It is the least expensive
process and in most cases, the parties can represent themselves.
The only steps in the Small
Claims Court are: the exchange of the Statement of Claim (called the Plaintiff’s
Claim) and the Defence. The Court requires the parties to include in their
Claim and Defence all documents that they intend to rely on at trial to
prove their claim. Accordingly, the parties do not exchange Affidavits
of Documents, do not attend a Mandatory Mediation, or attend Examinations
for Discovery.
The parties are required to
attend a pre-trial in front of a Judge who will attempt to achieve a settlement.
The opinions and suggestions of a Judge are not binding on the parties;
however, it goes without saying that the opinion of the Judge should be
given serious consideration in determining whether to continue or resolve
the claim.
The trial process in Ontario's
Small Claims Court is short and a trial can last anywhere from half an
hour to a full day. It is rare for a Small Claims Court trial to take
more than a full day.
For further information about
the Small Claims Court, visit:
http://www.attorneygeneral.jus.gov.on.ca/english/courts/scc/
Litigation Related Publications:
The New Small Claims Court Procedures in Ontario
June 2006
Natasha Bone
Mandatory Court-Connected Mediation
March, 2006
Kathryn G. Sutherland
What is Mediation?
March, 2006
Kathryn G. Sutherland
$200 Million in Lawsuits Against Firm
The Law Times, January, 2006
Kirsten McMahon
Xavier Navarrete was interviewed and quoted for this article
Damages for Personal Injury in Ontario
Toronto, Ontario, January 24, 2005
Steven Bellissimo
The Civil Litigation Process - An Overview
The Business Exchange, November 2003
Steven Bellissimo
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