 |
Understanding the Civil Litigation Process in Ontario |
For many people, the litigation process can be very intimidating. Having knowledge about the process can help to ease one’s fears.
Below you will find an outline the twelve key steps in the litigation process:
- Determining Jurisdiction
- Statement of Claim
- Statement of Defence and Counterclaim
- Reply and Defence to Counterclaim
- Discovery Plan
- Affidavit of Documents (Documentary Discovery)
- Examinations for Discovery
- Answering Undertakings and Motions to Compel Answers
- Motions
- Mandatory Mediation
- Set the Matter Down for Trial and Pretrial Conference
- Trial
Step One: Determining Jurisdiction
The first step in the litigation process is to decide which court the action should be started in. If a person’s claim is for $25,000 or less, the action must be started in the small claims court. Claims for more than $25,000 should be started in the Ontario Superior Court of Justice. The process described in this document applies to actions started in the Superior Court of Justice.
If a Plaintiff’s claim is for $100,000 or less, the claim is started in the Ontario Superior Court of Justice, under the Simplified Procedure Rule. Claims over $100,000 are started in the Ontario Superior Court of Justice under the ordinary Rules. Parties can, however, agree to use the simplified procedure for claims over $100,000.
Step Two: Statement of Claim
To start the litigation process, the person who has been harmed (the “Plaintiff”) prepares a statement of claim. The statement of claim describes the facts and the legal reasons that the Plaintiff says he or she is entitled to compensation from the other person (the “Defendant”). The Plaintiff and the Defendant are called “parties”.
It is very important to issue the statement of claim before the applicable limitation period expires. For most lawsuits, the claim must be issued within two years of the Plaintiff learning about the harm caused by the Defendant. However, there are different limitation periods for certain types of claims.
If it is not possible to issue a statement of claim within the limitation period, the Plaintiff can issue a Notice of Action within the applicable limitation period. The Plaintiff then has 30 days from the issuance of the Notice of Action to file a Statement of Claim.
The statement of claim is filed with the court and the Plaintiff must then arrange to serve it on the Defendant personally.
Step Three: Statement of Defence and Counterclaim
If the Defendant has been served in Ontario, he or she must serve the Plaintiff with a Statement of Defence within 20 days of being served with the claim. Defendants served in another province or in the United States have 40 days to serve their statements of defence and those served outside Canada and the United States have 60 days. The Statement of Defence sets out the reasons that the Defendant says he or she should not have to compensate the Plaintiff. If the Defendant has a claim against the Plaintiff (a “counterclaim”), it is included in the same document as the Statement of Defence.
If the Defendant cannot serve the Statement of Defence within the specified time, he or she can give the Plaintiff a Notice of Intent to Defend. This Notice gives the Defendant an extra ten days to deliver a Statement of Defence.
If the Defendant does not file a Statement of Defence within the required time, the Plaintiff can ask the court to note the Defendant in default and then obtain default judgment against the Defendant.
Step Four: Reply and Defence to Counterclaim
Once the Plaintiff receives the Statement of Defence, he or she has the chance to file a reply to the allegations made in the Statement of Defence. If the Defendant included a counterclaim, the Plaintiff must serve the Defendant with a Defence to the Counterclaim or else the Defendant can note the Plaintiff in default and then obtain default judgment against the Plaintiff for the damages described in the Counterclaim.
Step Five: Discovery Plan
Effective January 1, 2010, the parties must agree to a written discovery plan within 60 days of delivery of the Reply and Defence to Counterclaim, if any. The discovery plan sets out the scope of documentary discovery, the names of the people who will be produced for examination for discovery and the timelines for completing oral and documentary discovery.
Step Six: Affidavit of Documents (Documentary Discovery)
The Plaintiff and the Defendant must serve an affidavit of documents on the other party within the timetable established in the discovery plan.
An affidavit of documents lists all of the documents that are, or were, in the party’s possession and that are relevant to any matter in issue in the litigation. The documents are listed in three separate schedules: Schedule “A” includes the documents that the party does not object to providing to the other party; Schedule “B” lists the documents that the party does not want to provide to the other party because they are privileged; and Schedule “C” identifies all of the documents that were in a party’s possession but are no longer, together with a description of when and how the party lost the documents. For actions started under the simplified procedure rules, the parties must also include a Schedule “D”, which sets out a list of the names of people who have knowledge of the matters described in the statement of claim or statement of defence.
Effective January 1, 2010, the court has implemented a “proportionality” rule in relation to discovery. In determining whether a document must be produced or a question answered on discovery, the court must consider whether the time required to do so would be unreasonable, as well as whether the expense associated with production would be unjustified. The court must also consider if requiring production would cause undue prejudice to the party or unduly interfere with the orderly progress of the action. Finally the court must determine if the party requesting the document could easily obtain it from another source.
Before January 1, 2010, there was no rule requiring the court to consider proportionality as a factor in documentary and oral discovery. Also, the test for production used to be if a document “related” to a matter in issue, which was broader than the “relevancy” standard that now applies.
The obligation to disclose relevant documents is ongoing throughout the litigation process. If after preparing an Affidavit of Documents a party comes into possession of a document that is relevant to a matter in issue in the lawsuit or otherwise discovers that the previous Affidavit of Documents is inaccurate or incomplete, the party must prepare a Supplementary Affidavit of Documents.
The importance of including all relevant documents in an Affidavit of Documents cannot be overemphasized. For example, if a document is not listed in the Affidavit, the party may be prevented from using the document at trial. Should a party fail to include in his Affidavit a document unfavourable to his case, the court may severely penalize that party by dismissing his case or by ordering costs against him.
Step Seven: Examinations for Discovery
The examination for discovery involves the lawyers for each party asking the other party questions relating to the issues in the litigation. The examination takes place before an examiner who transcribes the testimony and each party takes an oath to tell the truth.
Ordinarily the lawyer who conducted the examination will request a transcript of the examination. This transcript can then be used at trial to challenge the evidence of the other party and for other purposes. Admissions made by a party can be evidence against that party.
If the lawyer for the party being examined thinks that a question is inappropriate, the lawyer will refuse to permit the client to answer the question and the examination will likely proceed without the party having to answer the question at that time. If the lawyer who conducted the examination thinks that the question is proper and wants an answer to it, the lawyer can bring a motion to the court and the court can order the party to answer the question that was asked.
Information such as who will be examined and when the examinations will take place, is included in the discovery plan discussed in Step Five. The party conducting the examination must serve a notice of examination on the person being examined, at least two days before the examination is to take place.
As of January 1, 2010, the duration of the examination is limited to seven hours total, for the party conducting the examinations. This means that if there are two defendants, the plaintiff can examine both of them, but the total time permitted for the examination of both defendants is seven hours. If additional time is required, the party conducting the examination must obtain leave of the court or the consent of the other parties.
In actions started under the simplified procedure rules, examinations for discovery are limited to a total of two hours.
Step Eight: Answering Undertakings and Motions to Compel Answers
During an examination for discovery, sometimes the person being examined does not have the information needed to answer a question right away or does not have a document that is requested. If that is the case, the person being examined can agree to provide the answer to the question, or the relevant document, after the examination is completed (this is called an “undertaking”).
If the person being examined does not provide the answer to the undertaking within a reasonable period of time, the lawyer for the other party can bring a motion to a judge asking for an order requiring the other party to provide the necessary information. If such an Order is made, the party who failed to provide the information in a reasonable time can be ordered to pay the costs of the other side for having to bring a motion to compel an answer to the undertaking.
Step Nine: Motions
Throughout the civil litigation process, either party may bring a motion to obtain a ruling from a judge on procedural or interim issues. For example, after the Statement of Claim and Statement of Defence have been exchanged, if one of the parties believes that there is no genuine issue for trial, that party may bring a motion for summary judgment (i.e. the Plaintiff can ask for judgment in the amounts set out in the Statement of Claim, and the Defendant can ask that the Statement of Claim be dismissed).
Step Ten: Mandatory Mediation
For all actions started in Ottawa, Toronto or Essex, parties are required to participate in a mediation session within 120 days of the first Statement of Defence being served. The parties can, however, consent to extend this time limit. Sometimes the parties will choose to postpone mediation in order to first carry out examinations for discovery.
Before the mediation session takes place, each party files a mediation brief with the mediator and gives a copy to the other party. The mediation brief identifies the factual and legal issues that are in dispute, sets out the party’s position on each issue, and includes copies of the most important documents in the case.
At the mediation session, the parties meet with a neutral mediator who tries to help them resolve the issues in the case. The mediator cannot force the parties to accept a settlement and the mediator does not have the power to impose a decision on the parties. Discussions at the mediation session are confidential, as are any settlement offers that are made during mediation. If the parties do not reach a settlement, offers made by a party cannot be referred to during the rest of the litigation process until after a judgment is reached.
If mediation does not resolve the matters, the parties may request, or the court may order, a settlement conference.
Step Eleven: Set the Matter Down for Trial and Pretrial Conference
After the above steps are completed, a party can set the matter down for trial by asking that it be placed on the trial list.
Within 90 days after the action is set down for trial, the court will give the parties notice that they must attend at a pre-trial conference.
At least five days before the pre-trial conference, each party must file a brief setting out the nature of the proceeding, the issues raised and the parties’ position on the issues, the names of the witnesses to be called, and the steps that need to be completed before the trial takes place.
The lawyers and the clients must attend the pre-trial conference. At the conference, the lawyers discuss their clients’ positions and the judge who is presiding over the conference tries to help them reach a settlement. The judge may tell the parties how he or she would decide the case if he or she was trying the case. The judge’s opinion on the case is not binding and the judge conducting the pre-trial conference cannot hear the actual trial if the parties decide to continue.
The judge presiding over the pre-trial conference can establish a timetable and fix a date for the trial and, if a date is set, will complete a pre-trial conference report.
Although the pre-trial conference judge cannot order the parties to settle, the parties should give serious consideration to the judge’s opinion on the merits of the case.
The parties should also be mindful of the costs consequences rule that applies to settlement offers. If a plaintiff makes a settlement offer, in writing, to the defendant at least 7 days before the beginning of a hearing, and the defendant does not accept the offer, and the plaintiff obtains a judgment at the hearing that is at least as good as the offer that the plaintiff made, the court will likely order the defendant to pay the plaintiff’s costs on a partial indemnity basis up to the date of the offer and on a substantial indemnity basis from that point on. Substantial indemnity means that a party will recover approximately 75% of their legal fees, whereas, partial indemnity only provides for recovery of approximately 30-50% of the legal fees.
If a defendant makes a settlement offer, in writing, to the plaintiff at least 7 days before the start of the hearing, and the plaintiff refuses the offer, and a judgment is made at the hearing that is better for the defendant than the defendant’s offer, the court will likely order the defendant to pay the plaintiff’s costs on a partial indemnity basis up to the date of the offer and the plaintiff to pay the defendant’s costs on a partial indemnity basis from the date of the offer.
Step Twelve: Trial
The parties can decide to proceed with a trial if a settlement is not reached. Often, the parties will decide to settle the action before it goes to trial because the legal fees involved are quite high and there is always a risk that the party could lose at trial. Also, with the costs consequences of settlement offers, parties may be concerned that they may be liable for paying the other party’s costs if they lose.
During a trial, both parties present their evidence by calling witnesses. Depending on the issues in the litigation, expert evidence may also be required. At the end of the trial, the judge will make a decision that is binding on the parties. If a party is not satisfied with the judge’s decision, an appeal may be started in some circumstances.
For actions started under the simplified procedure rules, a party may request a summary trial. Summary trials have strict time limitations on presentation of evidence. The parties present their evidence by affidavit and then the person who signed the affidavit may be cross-examined by the other party’s lawyer for a maximum of 50 minutes. In a summary trial, a party’s oral argument is restricted to 45 minutes. At the end of the summary trial, the judge issues his or her decision.
\