Most of us hear about lawsuits in the media, but how such matters are handled in the Courts is not widely known. Civil litigation is a branch of law the deal with disputes regarding money, property and injury.
It is generally considered distinct from other areas of law, such as family law, criminal law, immigration law, etc.
On this page, you’ll learn about how civil lawsuits work in Ontario. If you’ve watched the video above, you might already know that the two most common types of civil lawsuits are “actions” and “applications”. The information on this page will focus on “actions” because it is the most common type of civil lawsuit.
If you and your lawyer believe you have a case (also known as a “cause of action”), then the first step your lawyer will usually complete is to notify the other side of your legal position. This notification is usually a simple letter that is mailed to the other party demanding that certain actions are taken, or that certain actions must stop. There may also be a demand for payment in the initial letter.
If the situation is not resolved, you may instruct your lawyer to prepare and file a Statement of Claim (Form 14A) in Court. If your matter is going to the Small Claims Court, your lawyer or paralegal will prepare a Form 7A Plaintiff’s Claim instead. These document will name both parties, and will contain an itemized list of claims against the other party, and the facts that give rise to the claims.
The law requires that a copy of your Statement of Claim be served on the opposing party as well. This process usually involves hiring the services of a Process Server, a professional who is trained in filing Court documents and personally delivering such documents to parties for legal purposes. Your lawyer will arrange for these procedures to be completed.
Rule 18.01 of the Rules requires the defendant to respond within 20 days if the defendant is served in Ontario, 40 days if they are served elsewhere in Canada or in the United States, and 60 days if they are served anywhere else. The defendant is entitled to an additional 10 days if they file a Notice of Intent to Defend.
A party that does not respond can be noted in Default, and the Plaintiff may obtain an order of the Court in their favour.
There are two parts to the discovery process: documentary discovery, and oral discovery.
Documentary discovery is where parties exchange something called an “Affidavit of Documents”.
Oral discovery is simply a meeting between the parties and the lawyers, where each lawyer will have the opportunity to question the other party about certain particulars of the case. The meeting is held in the presence of a Court official, known as an Examiner, who will transcribe what is said during Discovery. The parties must tell the truth, and are, in fact, required to swear an oath to do so.
If the case is brought in the cities of Toronto, Ottawa or Essex County (Windsor), then Rule 75.1.02 of the Rules indicate that the parties must attend to settle their matter with the assistance of a mediator. This is known as Alternative Dispute Resolution. Such a meeting will be reported to the Courts, and documents will need to be filed indicating the successful completion of the mediation. The meeting is also required to take place within 120 days of the filing of the Statement of Defence. Many cases settle out of Court during mediation.
If a resolution was not agreed upon during mediation, the parties can set the matter down for Trial. However, within 90 days of doing so, a Pretrial Conference must be held, where a Judge will assist the parties in arrived at a settlement. The parties are encouraged to make reasonable offers to settle, and if they don’t, or refuse a reasonable offer, this behavior may have consequences in terms of legal costs. Ordinarily, the losing party must pay for everyone’s legal; however, a Judge make any order than is just when determining who must pay the costs of the case.
During the trial, the Plaintiff’s lawyer will attempt to prove their case on a balance of probabilities, but he or she does not need to prove the case beyond a reasonable doubt in the way that the Crown must in a Criminal trial. The parties may call witnesses to testify and give evidence, and each party is entitled to cross examine the other party’s witnesses. The completion of this stage usually marks the last major proceeding in a case; however, sometimes a party may wish to appeal the Judge’s decision to the Ontario Court of Appeal (ONCA). However, this is a lengthy process and not all cases are granted leave to appeal or, in other words, the ONCA does not always agree to hear every appeal that is sought.
If your lawyer believes that the trial judge made an error of law, then you might want to consider appealing your case. Depending on the level of court the made the decision, the appeal will either be heard by the “Divisional Court” or the “Court of Appeal”.