Civil Litigation covers a wide area of disputes including, breach of contract, bill collection, corporate shareholder disputes, property ownership, among other issues.
Anatomy of a Civil Claim
The first stage in a civil claim is referred to as the pleading stage. The default method of filing a civil claim in the Ontario Superior Court of Justice is by way of Statement of Claim, which is one form of originating process.
Plaintiffs must serve all defendants with the Statement of Claim by way of personal service. A defendant has up to 30 days to serve and file a Statement of Defence after being served with the Claim. The Claim and the Defence are also known collectively as “the pleadings”.
Discovery of Documents
The parties to a court claim are required to make full disclosure of all documents relevant to the dispute. This process is completed by way of an Affidavit of Documents. The Affidavit of Documents is separated into three schedules, A, B and C. Schedule A lists all relevant documents that are subject to being produced to the other party on request; Schedule B lists all documents that are subject to privilege that a party objects to producing; and Schedule C are relevant documents that are not in the party’s possession or control. In some instances, the parties are required to add a Schedule D to the Affidavit of Documents in order to provide the other party with a list of witnesses with knowledge of the events in dispute together with the witness’ contact information.
Examination for Discovery
An examination is the opportunity for a party who is adverse in interest to question the opposite party under oath, in the presence of a court reporter who is recording the proceeding, in order to obtain and/or understand the evidence the party intends to rely on in its case before the court. The parties and lawyers will attend at a court reporters office, the witnesses are sworn/affirmed. A transcript of the evidence at discovery is available from the court reporter on request.
This is when the parties meet with a trained neutral 3rd party to facilitate settlement discussions. In some cases, the parties will decide to hold the mediation session before conducting examinations in order to save time and money. Mediation is entirely without-prejudice, the mediator is not present to make any decision on the merits of the case, the mediator’s role is limited to exploring whether or not the case can settle. Statistically 65% of cases settle at mediation.
A party (plaintiff or defendant) may set the case down for trial after discovery of documents, examination and mediation are complete. The party setting the matter down for trial must prepare and serve a Trial Record on all of the other parties.
This is an opportunity for the parties meet with a judicial officer (usually a Judge) to discuss the merits of the case. A Judge reads briefs filed by the parties: there are no witnesses testifying at a pre-trial. Based on the written material file the Judge will examine the strengths and weaknesses of the plaintiff and defendant and provide the parties with an opinion on who is likely to succeed. The judicial officer will also work with the parties in an effort to find a settlement to the dispute.
A trial is a full hearing before a judge with witnesses, evidence and arguments by the lawyers. This is the most expensive step in a civil proceeding.
These are the most significant events in a court proceeding, and this list is not exhaustive. There are a number of potential court procedures that can occur during a court claim.
A court claim is an “investment”. When you commence a court proceeding you are investing a significant amount of time, effort and money, because you have a reasonable expectation that your claim has merit, and that you will recover damages from the defendant. It is significant to note that approximately ninety-five percent (95%) of all court cases settle before going to a trial.