NEWSLETTER

The Civil Litigation Process - An Overview

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 lawyers 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.

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:

  1. Issuing a Statement of Claim;
  2. Replying to the Statement of Defence;
  3. Attending a Mandatory Mediation;
  4. Preparing an Affidavit of Documents;
  5. Attending Examinations for Discovery;
  6. Answering undertakings and dealing with motions before trial;
  7. Attending a Trial Scheduling Court date;
  8. Attending a Settlement conference;
  9. Preparing for trial; and
  10. 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.

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 $25,000.00 and $100,000.00.

The Simplified Rules process eliminates some of the more costly steps that form part of the process in the Superior Court for actions over $100,000.00. In particular, the Simplified Rules eliminates: Written Discovery , cross-examinations on an affidavit and examination of a witness prior to the hearing of a motion or application. Recent amendments to the Rule also limit the time allotted on oral discovery to two hours of examination, regardless of the number of parties or the number of persons to be examined.

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 $100,000.00. Often times it may make more economic sense for a party that has a claim for $101,000.00 to $110,000.00 to select the Simplified Rules and to sue for $100,000.00 because the legal costs involved in pursuing the full claim in the Superior Court may exceed the extra $1,000.00 to $10,000.00 that the party can recover.

For further information about the Simplified Rules, visit: http://shorl.com/fysyjatrebija

Small Claims Court

The Small Claims Court provides an informal and inexpensive process for settling disputes. To ensure the simplicity of the process, the court will only entertain monetary and property claims up to $10,000. If your claim exceeds these limits you may still wish to use the small claims procedure for the ease, speed and cost at which disputes are resolved. You must, however, be willing to waive your right to claim any amount over the $10,000 limit. Parties may represent themselves in simple disputes and may want to retain legal experts for more complex matters. The Small Claims Court has its own new rules of procedure as described as below.

Commencing the Claim

The person commencing the claim will be called the “Plaintiff”. A claim can be commenced by filing a “Plaintiff’s Claim” with the court together with the required fee. The claim must set out the monetary value of the claim and a short summary of the facts. As well, all documents that the plaintiff intends to rely upon must be submitted together with the claim. On filing the claim and the supporting documents, the court clerk will issue the claim.

Serving the Defendant

Generally, the plaintiff, or a representative of the plaintiff, must personally provide a copy of the claim in person to the defendant within 6 months of the claim being issued by the court. This is known as “personal service”. If it is not possible or practical to personally serve the claim upon the defendant, the rules provide for alternative methods to serve the claim upon the defendant. If both personal service and the alternate methods are impractical, the court may allow a final method of providing the claim to the defendant known as “substituted service”. In order to serve the claim by substituted service, the plaintiff obtain the permission of the court, which can be done by way of a motion.

The Defence

Upon receiving the claim, the defendant has 20 days within which to file a “Defence”. The defendant may admit the claim, in which case it is advisable for her or him to pay the outstanding amount to the plaintiff directly in order to avoid having a judgment entered against her or his name. If the defendant disputes part or whole of the claim, he or she may summarize his or her Defence and submit the supporting documents. The defendant may also want to bring her or his own claim against the plaintiff, known as a “Counterclaim”; or, a claim against a third party, known as a “Third Party Claim”. Such Counterclaims and Third Party Claims can be filed at the same time as the Defence, or with permission of the court, such claims can be raised any time before the trial. If the defendant fails to file a Defence within the 20 day time period, the plaintiff may pursue a motion for default judgment. The defendant’s failure to reply would enable the court to enter a judgment against the defendant in respect of the claim without any further notice to the defendant.

The Settlement Conference

Within 90 days of the first defence being filed, a mandatory settlement conference is held before a judge. The judge that presides over the conference will not be the same judge that conducts the trial; this ensures that the parties are able to speak freely and openly.

The purpose of the conference is to:

  • resolve or narrow the issues of the claim(s);
  • expedite the disposition of the claims(s);
  • encourage settlement of the claims(s);
  • assist the parties in effective preparation for trial; and,
  • provide full disclosure between the parties of the relevant facts and evidence.

All parties are required to file with the court and serve upon the other parties all documents upon which they intend to rely at least 14 days prior to the conference, together with a list of their proposed witnesses. Failure to attend a conference or failure to file the conference material can result in costs (a financial penalty) being awarded against the defaulting party.

Various orders can be granted at a settlement conference including a final order by consent, which disposes of the matter. The opinion of the judge should be given serious consideration in determining whether to continue or resolve the claim(s). The conference can result in a positive outcome if both parties participate actively and honestly. At the conclusion of the settlement conference if either party still wishes to proceed to litigation in the Small Claims Court they may request the court to set a date for trial.

The Trial & Judgment

The trial will involve presentation of the evidence by both the plaintiff and the defendant. The evidence can include written statements, witnesses and any documents in support of the claim and defence. Both parties will have the opportunity to cross-examine each other’s evidence. The trial will typically last anywhere from half an hour to a full day. Failure to attend a trial can result in the trial proceeding in the absence of one of the parties or in the entire case being struck out. Usually, a judgment is rendered by the court immediately after all the evidence is heard. It may, however, be necessary for the court to review documents and evidence and render a judgment after the hearing.

Costs

A losing party may be required to pay the winning party’s reasonable disbursements and reasonable legal fees. An unrepresented successful party is also entitled to a maximum of $500 as compensation for inconvenience.

Appealing a Small Claims Court Judgment

A judgment from the small claims court can be appealed provided that the claim was for more than $500. The appeal procedure can be lengthy, expensive and complex.

For our fees and promotions on Small Claims Court related matters please visit our promotions page.


 

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