In Ontario, disputes involving money, property or rights to property are often resolved within the civil (as distinguished from the criminal) court system. Civil cases are governed by the Rules of Civil Procedure, case law (also known as common law) and statutes, such as the Evidence Act. Generally speaking, cases progress in the following order:
Step 1 – Initiating the Claim:
Initially, the determination needs to be made as to whether a viable legal claim exists, and if so, in what forum must it be brought. This involves consideration of the following, non exclusive factors:
- Where should the claim be brought?
- Is the claim timely, with regards to the Limitations Act?
- In what level of Court should the matter be brought, (i.e. small claims for matters for less than $25,000.00, simplified procedure in the Superior Court for matters greater than $25,000.00 and up to $100,000.00, or the Superior Court, for all matters greater than $100,000.00).
- If the matter involves a commercial contract, is there a binding arbitration provision?
- On what legal theories, causes of action, doctrines or statutes does the claim rely upon?
- What facts must be pled to set the stage for discovery down the road?
Once our lawyers have reviewed your case and related materials, they will prepare and file the Statement of Claim with the appropriate Court.
Step 2 – Serving the Claim:
Once a claim has been filed with the Court, it must be personally served upon each defendant. While there are a number of ways to accomplish this, the most cost effective method, from the standpoint of expense and potential headache, is simply to use a reputable process server.
Step 3 – Responding to the Claim:
Once a defendant has been served with the Statement of Claim, they typically have twenty days to respond, failing which they can be requisitioned in default and a default judgment obtained (which in some cases may require a motion be brought, such as for unliquidated claims). Drafting a defence involves many of the same considerations involved in drafting the claim, and additionally requires a determination of:
- What affirmative defences may apply?
- Whether the Defendant has a counterclaim against the plaintiff?
- Whether the Defendant has a cross-claim against other defendants for contribution or indemnity?
- Whether the Defendant has a third party claim (against someone not currently involved in the suit) for contribution or indemnity?
- What additional facts, if any, must be plead to support Defendant’s position?
Step 4 – Replying to Defendant’s Response:
In a limited number of cases, on receipt of the Statement of Defence, the plaintiff may be obliged by Rule 25.08, to serve a Reply, if plaintiff intends to prove a different set of facts than set forth in either the claim or the defence (i.e. in Reply to new allegations raised in Defendant’s Statement of Defence).
Likewise, if the Defendant has served a counterclaim against the plaintiff, the plaintiff must respond to same by serving a Defence to Counterclaim, in the same manner set forth in Step 3, above.
Step 5 – Discoveries
Once the above steps have been completed, the parties generally enter into the ‘Discovery Process.’ This process allows the parties to develop additional evidence in support of their case, and also to learn about the strengths and weaknesses of both their own case, and of the other side’s case. This process typically involves:
- An agreed upon Discovery Plan, pursuant to Rule 29.1.03(1), or alternately, a motion to impose a Discovery Plan;
- The exchange of Affidavits of Documents, listing all relevant documents in the party’s power, possession or control, pursuant to Rule 30.03(1). In actions filed within Simplified Procedure, potential witnesses are listed as well;
- Examinations for Discovery, whereby each party to an action is questioned by the opposing lawyer(s), on the record, in the presence of a Court Reporter, who may then transcribe the testimony upon request (and payment). In some cases, this process further requires:
- Discovery related motions, and specifically Refusals and Undertakings Motions, whereby the parties seek judicial involvement to determine what questions must be answered and what documents must be produced, where objections have arisen.
Step 6 – Mandatory Mediation
For actions in Toronto, Ottawa and Essex County (Windsor), private mediation must be completed (or at least scheduled) prior to taking steps to have an action Noticed for Trial (i.e. put in the queue to obtain a trial date), pursuant to Rule 24.1.04). Mediation involves a neutral mediator, who reviews the claims and defences of the parties, and attempts to help the parties reach a mutually agreeable solution, by pointing out the relevant strengths and weaknesses of each party’s position and their likely success or lack thereof at trial.
Step 7 – Setting an Action Down For Trial
After the discovery process has been completed, a trial record must be filed with the court. The trial record contains the pleadings, any jury notices, along with the other documents required by Rule 48.03. In some areas, the Registrar places cases on the appropriate trial list, whereas in other locations, trial dates are fixed by a judge in assignment court.
Step 8 – Pre-Trial Conference
Prior to the commencement of trial, the parties will meet with a Judge, for the pre-trial conference, as set forth by Rule 50. In many cases, the pre-trial Judge functions as a mediator, offering his or her opinion of the case along with how same is likely to be perceived by another Judge, in an attempt to encourage the parties to settle. Other times, the pre-trial Judge is asked to make Orders or give directions to assist in the just, most expeditious and least expensive resolution of the proceedings, which can involve the simplification or settlement of some of the issues, and admissions to facilitate the hearing.
Step 9 – Final Trial Preparation
As trial approaches, lawyers go through an intensive period of trial preparation, that involves summonsing witnesses, obtaining updated records, serving Requests to Admit, Notices of Intent and Offers to Settle, reviewing the evidence in the case, interviewing witnesses and preparing them for trial, drafting pre-trial motions, preparing opening and closing statements reviewing expert reports and preparing questions for experts. In many instances, proper trial preparation takes 100 hours or more, for instance, for a personal injury case involving injuries and lost income.
Step 10 – Trial
According to the Department of Justice, less than 2% of civil cases make it to trial. In most civil trials, the trial process is as follows:
- any pre-trial motions;
- Opening Statements (although in certain cases the Defendant will wait until the close of Plaintiff’s case);
- Plaintiff presents its case through witnesses and exhibits;
- Defendant presents it case, if any;
- Closing statements are given, along with any Reply, where permitted;
- In a case involving a jury, the Judge reads the jury instructions;
- The jury returns a verdict or a mistrial is declared;
- The Judge addresses any motions made post verdict;
Step 11 – Appeal
Where a party feels that the verdict is incorrect in law, against the weight or the evidence, or otherwise incorrect, they may have the opportunity to appeal. However, relief is granted in civil appeals only around 25% of the time, meaning that in most cases, the judgement of the trial Court is final.
The above information is general in nature, and may not apply to your particular case. Reading the above does not create a lawyer client relationship, and this page and/or site are by no means exhaustive of the many nuances found in law. If you would like to speak to one of our lawyers about your case, call 647-495-8995 to speak to one of our property litigation lawyers today.