If you been watching some of our other videos such as, “How Does the Small Claims Court Work in Ontario” and “How Does a Civil Lawsuit Work in Ontario”, you may be curious to know a little bit more about exactly what happens during a trial in Ontario’s court system.
In the above video, and in the following paragraphs below, we’ll talk about the basics of how trials work in civil courts. We won’t be discussing trials that involve juries, criminal cases or family court cases. The information discussed in the above video and on this page is about what you might typically expect in the Small Claims Court, or a civil action in the Superior Court of Justice.
First, it helps to understand how a courtroom is organized on the day of a trial. You may already have some idea of the arrangement of a courtroom. The Plaintiff and the Defendant sit a few meters apart, on separate tables and they both face the front of the courtroom, where a Judge and a clerk are seated. Each person involved in the lawsuit sits with his or her lawyer. There is usually also a place for a witness to sit next to the Judge while he or she is giving testimony. Everyone, including the Judge, has a microphone in where they are seated. The microphones ensure that everything that is said during the trial is recorded. In some courtrooms, the microphones will also amplify a person’s voice, but they do not always perform that function.
At the beginning of the trial, the lawyers will sometimes give opening statements to the Judge. This statement is to help the Judge understand what the case is about, and what type of testimony the Court can expect to hear from the various witnesses who will be called to testify during the trial. The Judge will already have some idea of the issues in the case, based upon Court documents that are filed in advance of the trial. However, the Judge will keep an open mind, and he or she will not make a decision about the case until the end of the trial.
After opening statements, the next stage is called the “Plaintiff’s Case”. As you may already know, the Plaintiff is the person who commenced the lawsuit against the Defendant. The goal of the Plaintiff’s lawyer is to prove the Plaintiff’s case, and typically to convince the Judge that the Defendant is liable to pay money to the Plaintiff. During the Plaintiff’s Case, the Plaintiff’s lawyer will call witnesses to testify in the witness box next to the Judge. Often, the Plaintiff himself or herself will also be one of the witnesses. However, before any witness gives testimony, the Judge must be satisfied that the witness has taken an oath to tell the truth. Therefore, the clerk will ask the witness whether he or she wishes to swear on a holy book, or solemnly affirm to tell the truth, the whole truth, and nothing but the truth. After the witness’s oath has been completed, he or she is ready to give testimony. It’s important to keep in mind that witnesses should only testify about things that are within their own personal knowledge, and witnesses should not speculate or try to guess about facts that they do not actually know.
During this stage, the Plaintiff’s lawyer will ask the witness a series of questions about the case. This is called “direct examination”, and the tone of the questions are not hostile or aggressive. That is because when a lawyer is performing a direct examination, it generally means that the witness has knowledge that is favorable to that lawyer’s case. Direct examination typically involves open-ended questions, and the witness has the opportunity to share their experiences, knowledge and observations in a comfortable manner. During direct examination, the lawyer who is asking the questions cannot ask any leading questions. A leading question is one that suggests its own answer. For example, if a lawyer asks a question like, “the wall was blue, wasn’t it?”, that is a leading question, because the answer is included in the question itself. However, if a lawyer asks a question like, “what colour was the wall?”, then that is an acceptable question.
After the Plaintiff’s lawyer completes his or her questions with any particular witness, the Defendant’s lawyer will also have an opportunity to ask that witness some questions before moving onto the next witness. These questions are called “Cross Examination”, and the conversation is typically much more hostile than direct examination. During cross examination, the Defendant’s lawyer is permitted to ask leading questions, imply that the witness is not telling the truth, or that the witness’s testimony doesn’t quite add up. The lawyer’s goal during cross examination is to undermine the witness’s testimony.
After the Defendant’s lawyer has completed cross examination, the Plaintiff’s lawyer will then have an opportunity to ask some follow-up questions. These follow-up questions are called “Redirect Examination”. But these questions must only be about the specific issues that were raised during cross examination. In other words, redirect examination is not an opportunity for the Plaintiff’s lawyer to perform a second direct examination.
Sometimes, the Judge will interrupt this process to ask the witness a question. This helps the Judge understand the testimony that the witness is giving. There may also be situations where a witness’s testimony is interrupted for other reasons, such as an objection raised by the opposite lawyer. Unlike what you may have seen in movies or TV, if a lawyer wants to make an objection in Ontario, the lawyer will simply stand up. The Judge will then hear the objection and discuss the objection with both lawyers. After that discussion, the Judge will decide whether or not to accept the objection.
It is also common for lawyers to show witnesses documents and other evidence while the witness is in the witness box. If a lawyer wants to include an item for the Judge to consider as evidence, the lawyer will request that the Judge accept the item as an exhibit. If the Judge agrees, the clerk will then accept the item, and keep a list of the various exhibits that are introduced at the trial.
After all of the Plaintiff’s witnesses have testified, that milestone in the trial is called the “Close of the Plaintiff’s Case”. The next stage of the trial is called the “Defendant’s Case”, and that stage is performed in the same way as the Plaintiff’s case, except the lawyers’ roles are reversed. The goal of the Defendant’s lawyer is to have the lawsuit dismissed against the Defendant. Lawyers who is defending someone in civil court may work towards that goal in a lot of different ways. Sometimes, the witnesses for the Defence will present a completely different version of events than the story that was presented during the Plaintiff’s case. The Defence might also claim that the Plaintiff hasn’t actually suffered any loss or damage, and should not be entitled to payment from the Defendant.
However, it’s important to keep in mind that it is the Plaintiff’s responsibility to prove his or her case. If a Judge finds that the Plaintiff has not adequately proven his or her version of events, or has not produced enough documents and evidence to prove his or her side of the story, then the Plaintiff will likely lose the trial. You might be wondering how far the Plaintiff must go to convince the Judge that his or her case should be successful. In legal terms, the Plaintiff must prove his or her case “on a balance of probabilities”. In other words, if the Judge is convinced that the Plaintiff’s case was even slightly more preferable than the Defendant’s case, then the Plaintiff will most likely win the trial. That may be quite different from what you may have heard about the justice system. For example, many people have heard that Courts require proof “beyond a reasonable doubt”, which is a much stricter level of proof. However, that phrase is only applicable in criminal courts, and the Plaintiff is not required to prove his or her case beyond a reasonable doubt in a civil lawsuit.
After both the Plaintiff’s case and the Defendant’s case is closed, the Judge will usually hear from each lawyer about how the law applies to the facts of the case, and why the Judge should prefer one side of the story over the other. These arguments are called, “Closing Submissions”. Sometimes, in the Small Claims Court, if there is a clear winner, a Judge may a decision immediately, either ordering the Defendant to pay a certain about of money to the Plaintiff, or dismissing the Plaintiff’s lawsuit altogether. Oftentimes, however, the Judge will choose to do something called “Reserve Judgement”. In those situations, the trial will end, and the Judge will take some time to prepare a decision in writing. A Judge’s decision can sometimes require hundreds of pages of writing, and usually involves a very detailed analysis of the facts, evidence and the law.
After the Judge has made a decision, the winning party will typically be entitled to some reimbursement for his or her legal fees to be paid by the losing party. This is called an Order for Costs. Sometimes, the risk of being required to pay costs is enough to deter many people from conducting a trial altogether, especially if the outcome was obvious to the lawyers in advance of the trial. This is part of the reason that the vast majority of civil lawsuits in Ontario reach a settlement prior to proceeding to trial.
In the Small Claims Court, the maximum a winning party can claim as reimbursement for his or her legal fees is 15 percent of the money that was involved in the lawsuit, plus disbursements. If you don’t know what a disbursement is, feel free to check out our video, “How Do Legal Fees Work”. As an example of the maximum Order for Costs in Small Claims Court, imagine a Plaintiff sues a Defendant for $10,000, and the Defendant hires a lawyer, who then wins the trial. The Defendant would not be required to pay anything to the Plaintiff, and the Defendant could also claim a maximum of $1,500 plus disbursements from the Plaintiff, because 15 percent of $10,000 is $1,500. However, in some situations, a Judge can increase the amount that the losing party must pay for costs. If the Defendant in our example offered to settle the case before trial by offering to pay the Plaintiff $5,000, and the Plaintiff refused the offer, then the Defendant would be in a very favorable position after winning the trial. Specifically, the Defendant could say to the Judge that he or she made a generous offer to the Plaintiff, and still went on to win the trial. In that situation, the Plaintiff will have won nothing, and the Judge would likely order the Plaintiff to pay additional costs for wasting the Court’s time and for refusing an offer that was actually better than the result the Plaintiff actually got at trial.
In the Superior Court of Justice, the Court could require the losing party to pay hundreds of thousands of dollars in an Order for Costs because the limits in the Small Claims Court do not apply to the Superior Court of Justice. If you aren’t familiar with these two levels of Court, feel free to check out our other videos, “How Does the Small Claims Court Work in Ontario” and “How Does a Civil Lawsuit Work in Ontario”.
So now you know the basics of how trials work in Ontario. However, please note that the above video and this article is not intended as legal advice, and you should always consult a lawyer if you have questions about your own unique situation.