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 of 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
- Mandatory Mediation
- Set the Matter Down for Trial and Pretrial Conference
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.
Our litigation team members will be able to advise you in which jurisdiction the claim should be commenced, and whether to use the simplified procedure.
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. Your lawyer is in the best position to tell you when the limitation period expires after a discussion about the facts.
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 an additional period of time within which tofile 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.
Litigation lawyers are trained to draft a Statements of Claim that best position your case, and are also able to navigate the complex court filing system quickly to ensure your claim is filed properly and on time.
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 a brief window of time. Defendants served in another province or in the United States or in another country have slightly more time to serve their Statement of Defence. 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 additional time 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.
Litigation counsel is trained to identify the appropriate legal defence to defend against the Statement of Claim.
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. The party conducting the examination must serve a notice of examination on any person being examined at least two days before the examination is to take place.
It is your lawyer’s job to work with the other party’s lawyer to create this discovery plan.
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. For actions started under the simplified procedure rules, the parties must also include 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, among several other factors, whether it is reasonable within the context of the importance of the action and the amount of damages being claimed, and if it will have an adverse effect on the administration of justice.
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. 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 an Affidavit a document unfavourable to his case, the court may severely penalize that party by ordering costs against that party, or even by dismissing the case.
Your lawyer is trained to create these documents properly, so that they best represent and protect your interests.
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.
As of January 1, 2010, the duration of the examination is time limited for the party conducting the examinations. 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 have even less time permitted for examinations.
Prior to an examination for discovery, your lawyer will explain the process to you and help you understand what is expected of you. Your lawyer will also explain what his or her role is at the examination.
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.
Your lawyer will advise you as to whether or not a requested undertaking is reasonable and, if it is, will also ensure that undertakings are fulfilled properly.
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, a party may bring a motion to exclude certain evidence from being used, or a motion to delete certain parts of the other party’s pleadings.
Your lawyer will know which motions to bring and when to bring them. It is your lawyer’s responsibility to use motions to find solutions to issues that may arise during the litigation process.
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.
Your lawyer will explain how the mediation proceedings will be conducted and ensure you are comfortable knowing how the mediation works. There are rules relating to mediation that your lawyer will explain to you.
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.
Shortly before the pre-trial conference, each party must file a brief containing many different items required by the judge presiding over the pre-trial conference.
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. It may be advantageous to make a reasonable offer to settle. Your lawyer should explain the details of how cost allocation works when offers to settle are made.
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 specified period of time. In a summary trial, a party’s oral argument is restricted as well. At the end of the summary trial, the judge issues his or her decision.
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