Whether you are suing (as a plaintiff or applicant) or being sued (as a named defendant or respondent), participation in the civil litigation process in Ontario can be daunting – especially for those who are being exposed to the process for the first time. (Note that some areas of law, in particular family law, operate under an entirely separate regime.)
This article will explain the various stages of a civil lawsuit and also introduce some of the terminology that is associated with a legal proceeding.
Typically, the first step in a litigation process is making a demand. A demand letter will outline the basis for the claim and notify the opposing party that the claimant has retained counsel. A demand letter may also allow the parties to reach a settlement by a specified deadline. An effective demand letter will provide an opportunity for an early and affordable resolution to a claim by avoiding the more substantial costs associated with prolonged litigation. Settlement at this stage – indeed, settlement at any stage of litigation – usually requires that the parties take a realistic view of the risks associated with continued litigation (which takes into account, among other things, legal costs, probability of success, and probability of being able to collect on any eventual judgment).
If the opposing party ignores or refuses to comply with the demand, a claim will be commenced against them. Before the Statement of Claim can be issued, the claimant must determine the appropriate court in which to initiate the proceeding.
All claims in excess of $100,000 are dealt with by the Superior Court of Justice under the ordinary Rules of Civil Procedure [ed. As of January 1, 2020, the threshold is $200,000.00]. Such claims usually take longer to complete, but provide the parties with more opportunities to take advantage of extended evidentiary and legal procedures. Claims for $100,000 or less must be commenced in the Superior Court of Justice under the Simplified Procedure. Such claims are subject to a somewhat shortened and streamlined litigation process, providing a middle ground between the Small Claims Court and full litigation in the Superior Court of Justice.
The Ontario Small Claims Court currently deals with any claims for $25,000 or less. The Small Claims process provides litigants with a relatively fast and straightforward litigation process. [ed. As of January 1, 2020, the threshold is now $35,000.00.]
When considering jurisdiction, parties must also determine which court location is appropriate for the dispute. The location of the court depends on a variety of factors, including the location of the parties, the location where the loss occurred and any contractual terms that specify jurisdiction.
Exchange of Pleadings
The various documents exchanged at the beginning of the legal proceedings are known as “pleadings” since each party is setting out (or pleading) his or her case in the court documents. The party bringing the action is called the “Plaintiff” and the party defending against the action is called the “Defendant” (that is, unless the litigation was commenced by way of an Application, in which case the parties are the Applicant and the Respondent respectively).
The Plaintiff initiates the litigation process by drafting and issuing a Statement of Claim. Issuing is the process of the court putting its seal on the Statement of Claim and opening a court file. The Statement of Claim must outline the relevant facts, the legal basis for the claim and the damages being sought against the Defendant. The Plaintiff then serves the claim – that is, causes it to be delivered to the Defendant.
Once the Statement of Claim is served, the Defendant has 20 days to deliver a Statement of Defence. A Statement of Defence may be combined with a Counterclaim against the Plaintiff. The Defendant may also initiate a Crossclaim against other Defendants or even bring new parties into the proceeding with a Third Party Claim. The Plaintiff then has the option of responding to the Statement of Defence in a document called a Reply.
Once pleadings have been exchanged, the case moves to the discovery stage. The first part of the discovery stage involves each party preparing and serving an Affidavit of Documents. The Affidavit lists all of the documents in the possession, control or power of the party which are relevant to the issues in the legal proceeding. Any privileged or confidential documents are normally not produced, but they are still listed on a separate schedule.
The second part of the discovery stage is called Examinations for Discovery. This consists of each party appearing before a court reporter and answering questions under oath.
The point of the discovery process is to permit each side of the case to test the strengths and weaknesses of the other side. In some cases, this can facilitate settlement immediately after discoveries have concluded.
A Motion is a hearing before a Judge for an Order dealing with an intermediate matter in the proceeding. The Judge makes his or her decision based on affidavit evidence as opposed to witnesses appearing in court to give oral evidence. In some cases, each party is cross-examined (questioned under oath) regarding the evidence in his or her affidavit before the Motion is argued. Motions may be helpful in resolving procedural or interim issues. Each party’s lawyer will determine which motions may assist their case depending on their particular circumstances.
The Pretrial Stage
After the discovery stage is complete, the claimant will prepare and serve a Trial Record which has the effect of placing the case on a list of cases for trial. Once the matter is on the trial list, it can then take a number of months to get reached for trial depending on the number of cases already on the list. Before the case gets called for trial, the Trial Coordinator of the Superior Court of Justice will schedule a Pre-trial Conference. The Pre-trial Conference is a meeting with a Judge and the lawyers during which the prospects of settlement are discussed.
The Judge will read a Pre-trial Conference Memorandum prepared by each party in advance of the Conference and review any Offers to Settle. After reviewing these materials, the Judge will provide his or her opinion on the likely outcome of the case if the matter proceeds to trial and will also comment on whether the Offers to Settle are reasonable. In simple terms, a Pre-trial Conference is an opportunity to get an impartial legal opinion about the case (the Rules of Civil Procedure provide that the Judge who hears the Pre-trial Conference cannot preside over the trial). If the proceedings are commenced in Toronto, Ottawa or Essex, the parties may be required to attend mandatory mediation.
If the parties are unable to settle the legal proceeding, a trial is held where a trial judge will hear submissions and evidence from all parties. This stage is typically one of the more expensive stages of litigation as all parties must spend a significant amount of time preparing their legal arguments and evidence for the trial. Each party must carefully gather its documentary evidence and compile a list of potential witnesses that will appear in court. Lawyers will normally spend a number of hours reviewing evidence, preparing questions and conducting legal research ahead of the trial. Once the trial is complete, a formal Judgment is rendered and the judge decides which party, if any, will pay costs.
Enforcement of Judgment
Sometimes the legal proceeding does not end with the Judgment. If the unsuccessful party fails to obey the Judgment, additional steps must be taken in enforcing their financial and other obligations. Such steps may include seizing the unsuccessful party’s accounts, placing a lien on their property or obtaining a contempt order against them.
This is, in fact, a significant consideration from the outset of the litigation – you can go from Statement of Claim to a successful trial outcome; however, if you are unable to collect on your Judgment, the whole process may be for naught.
Civil litigation can be a complex, lengthy, costly and demanding process. At the same time, the process can provide the parties with a meaningful and binding remedy in a dispute. Knowing the rights and options available to the parties in civil litigation assists in encouraging reasonable and timely settlement of disputes.
* Special thanks to our articling student Artour Rostorotski for his assistance with drafting this article.