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 Litigation
Process Overview |
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This Guide describes the
litigation process in Ontario and outlines the major stages
in an action
or lawsuit. The links take you to our Client Guide entitled
Litigation Lexicon where the terms are defined and
explained. The
Courts The court framework and
jurisdiction of judges and court officials is prescribed by
the Courts of Justice Act. Currently, the superior
court of record is called the Superior
Court of Justice.
A branch of the Superior Court of Justice or
Divisional
Court, as it is
commonly called, has jurisdiction in certain administrative
law applications and appellate jurisdiction for matters
involving less than $25,000. There is also a
Court
of Appeal for Ontario
which hears appeals from the Superior Court of Justice and
Divisional Court. In addition, an appeal is possible, in
certain circumstances, to the Supreme
Court of Canada,
which hears appeals from appellate courts across Canada. For
cases involving amounts less than $10,000, there is a branch
of the Superior
Court of Justice
called the Small Claims Court, which handles such
disputes. Court
Officials Judges: These
officials in the Superior
Court of Justice,
the Divisional
Court, the
Court
of Appeal for Ontario
and the Supreme
Court of Canada
are appointed by the Government of Canada (except for Small
Claims Court judges, who are appointed by the Government of
Ontario).. In addition to presiding at trials or appeals,
they hear motions, conduct pretrial conferences and
settlement conferences, as well as the many administrative
duties required to ensure that the courts functions as
smoothly as possible. Judges of the Superior
Court of Justice,
and the Divisional
Court are
addressed as "Your Honour". Some judges who were appointed
to the former Supreme Court of Ontario prior to its merger
with the County and District Courts are entitled to be
referred to as "My Lord" (male judges) or "My Lady" (female
judges). There are few, if any, who will insist on being
referred to in this fashion and if they choose to be
addressed that way, they will tell you in court. You may
also ask the court registrar prior to the hearing. Judges in
the Federal Court of Canada and the Tax Court of Canada are
referred to as "Justice" or "Mr. Justice" or "Madame
Justice". Federal Court and Tax Court judges are not
addressed as "Your Honour". Although it is unusual for
clients to directly address the judges in an appellate
court, judges in the Court
of Appeal for Ontario
and in the Supreme
Court of Canada,
judges are referred to as "Justice", or "Justice
[their surname]" or "Mr. Justice" or "Madame
Justice". Judges of the Small Claims
Court and the Ontario Court of Justice are addressed as
"Your Honour". "Sir" or "Madame" is
always permissible for any judge. Judges do not usually make
an issue of the form of address from litigants as long as it
is polite. Masters and Case
Management Masters: These judicial officials handle
motions and other judicial business assigned to them by the
Rules
of Civil Procedure.
Because of their experience, they usually become expert in
certain procedures such as mortgage hearings, construction
liens, references and procedural motions. They are addressed
as " Master", "Sir" or "Madame". Masters are not available
in all judicial regions. Assessment Officers:
These officials are appointed to review the amount of
costs awards, both as between parties to the action and
between a solicitor and his or her client. For instance, if
a party is awarded costs in an action, the party prepares a
written list of the items, called a bill of costs, in
accordance with a tariff established by the Rules of Civil
Procedure. The assessment officer reviews the list of items
and makes a determination or assessment of the amount that
the unsuccessful party has to pay. Similarly, where a client
or lawyer wishes to have the amount of a legal account
determined by the court, the assessment officer performs
this function. Assessment officers are
addressed as "Sir" or "Madame". Registrars: The
Divisional
Court, the
Court
of Appeal for Ontario
and the Superior
Court of Justice
all have a registrar who is the responsible official for the
administration of the court offices. Each office of the
Superior
Court of Justice
has a local registrar who performs the same function. There
are only a few circumstances where it would be necessary to
have a judicial audience with the registrar. In such cases,
the registrar or local registrar would be addressed as
"Registrar", "Mr. Registrar", "Madame Registrar", "Sir" or
"Madame". The term registrar is also
often used to describe the court official who keeps track of
the documentation and court files during a trial or hearing.
Sometimes this official is referred to as the court clerk.
He or she will sit at the front of the courtroom, usually in
front of the judge's dais. You will want to refer to these
officials as "Mr. Registrar", "Madame Registrar", "Sir" or
"Madame". If anything, such as an exhibit, is to be passed
up to the judge during the trial or hearing, it is usually
first given to the registrar who will then hand it to the
judge. The
Rules Litigation in Ontario is
governed by a set of some 77 procedural rules called the
Rules
of Civil Procedure,
which are usually referred to by lawyers simply as "the
rules". These rules contain numerous sub-rules and are
supplemented by court decisions which interpret, and, in
some cases, expand them. The interpretation section of the
rules provides that they "shall be liberally construed to
secure the just, most expeditious and least expensive
determination of every civil proceeding on its
merits." Court
Costs Like most Canadian
jurisdictions, Ontario has a form of "loser-pay" costs
regime. Subject to a discretion in the court and whether or
not settlement offers have been made, an unsuccessful party
has to pay a portion of the legal expenses of the successful
party. The amount of these costs can be ordered in a
specific amount by the presiding judge or the judge can
order that they be assessed in accordance with a fairly
complex schedule called the tariff. Although the successful
party will almost never achieve a complete recovery of the
amounts it has to pay to its own lawyer, the impact of costs
is a factor in every step in the litigation process.
Settlement offers can affect the award of costs
significantly, which is why it is not correct to simply
characterize Ontario’s costs regime as totally
loser-pay. The concept of court costs
refers to the amounts one party to the litigation may be
ordered to pay to another party. It does not have anything
to do with the costs of administering the court offices or
payment of salaries for judges and court officials. To some
extent administration costs are recovered by the Ontario
government through filing fees. Payment for the salaries for
judges in the Superior Court of Justice, Divisional Court,
Court of Appeal and Supreme Court of Canada are paid by the
Government of Canada from general tax revenues. Actions Civil proceedings in
Ontario fall into two major categories. The most usual form
is known as an "action"
which is the manner in which most lawsuits are conducted.
The other form is called an "application"
which is the form used mainly in proceedings under statutes,
although there is a wide variety of other types of
applications permitted. This description in this Guide
covers only actions,
not applications. To achieve the most
expeditious and least expensive determination of the
action
as mandated in Rule 1, there are a number of initiatives to
simplify the traditional adversarial process. This is a
significant challenge as published statistics from the
Ministry of the Attorney-General indicate that the average
three day trial in Ontario costs each litigant approximately
$38,000! This makes the cost of litigation a significant
barrier for many modest claims. First, there is
case
management which
utilizes a special sub-set of rules to permit the judges and
court staff to monitor the progress of cases and simplify
the procedures for certain steps. Pioneer case management
projects continue in the District of Algoma. The Toronto
Civil Case Management Project has been replaced by a set of
case management rules under Rule 77 of the Rules of Civil
Procedure. It is anticipated that Rule 77 will eventually
apply across Ontario. Currently, it applies to all cases in
Toronto, Ottawa and Windsor. Second, there is now
mandatory mediation or alternative dispute resolution in
Toronto, Ottawa and Windsor. This now requires all litigants
there to participate in an ADR session at an early stage of
the litigation with a court approved facilitator. An earlier
court-sponsored ADR Project had achieved success in
resolving disputes without the expense and delay of the
traditional court process. Third, actions involving
$50,000 or less are governed by a special sub-set of rules
in Rule 76 called the Simplified
Procedure rules.
They attempt to provide alternate procedural steps for these
more modest claims which cannot be economically disposed of
in the regular process. The
Parties We start with a
description of the people who are involved in the
action
(the
parties) since
they are often referred to by their status as a
party. The person or corporation
that initiates the lawsuit is called a plaintiff. The person or corporation
against whom the plaintiff seeks relief is called the
defendant. Under certain
circumstances, a defendant can join other persons or
corporations against whom the defendant seeks relief but who
are not already parties
to the action. Such a person or corporation is called a
third
party. Third
parties can also
join other persons or corporations against whom they seek
relief but who are not already parties to the action. These
other parties are called fourth parties. Similarly, fourth parties
can add additional persons or corporations as fifth parties.
Every added party can repeat the process of adding
additional persons or corporations and these subsequently
added parties are referred to by the next number. Such
subsequent parties are most often found in complex cases,
such as products liability or construction claims, where
there are a number of persons or corporations which may be
liable for the damages sought. Commencement of an
Action A legal action is
comprised of the following stages, which often overlap in
time sequence: Each of these stages is
described more fully below. Pleadings Pleadings
is the collective name given to the set of written documents
in which each party sets out the facts on which it relies to
support its position in the action.
These are important papers as they define the issues in the
litigation and determine the scope of relevant questions at
discovery and at trial. They are usually the only source of
information about the case that the trial judge has prior to
the commencement of the trial. The first pleading
in an action is a statement
of claim. The
statement
of claim is a
written description which outlines the nature of the
plaintiff's
claim against the defendant
and the essential facts on which the claim is based. It must
also include a specific amount for damages claimed against
the defendant. The lawsuit is commenced
when the statement
of claim is taken
to a court office (or sent electronically) and formally
"issued". This process involves assigning a court file
number, payment of a filing fee and placing a copy of the
statement
of claim in the
court file. Once a statement
of claim is
issued, it (and other pleadings
when filed) becomes available for inspection by members of
the public. Where time is so short
that it is not practical to prepare a statement
of claim (such as
where a limitation period is about to expire), it is also
possible to prepare and issue an interim document known as a
notice
of action which
contains a very brief description of the claim. However, the
plaintiff
must then prepare
a statement
of claim with
further particulars. A statement
of claim (or
notice of action and statement
of claim where the
action was commenced by issuing a notice of action), must be
served on all defendants
within six months of being issued. While it is technically
possible that a defendant
would learn about an action
on its own, the defendant
usually first learns of the action
when served with the statement
of claim. We
usually use a professional process server to effect service
of the statement
of claim on the
defendant. Assuming that the
defendant
does not dispute the jurisdiction of the court or does not
wish to bring a motion to challenge the statement
of claim on other
technical grounds, the defendant
responds with a document called the statement
of defence. This
contains the facts upon which the defendant
relies in resisting the plaintiff's
claim. The
time for serving a statement
of defence on a
plaintiff’s
lawyer, or where the plaintiff
is acting in person, on the plaintiff,
depends on the place where the defendant
was served by the plaintiff.
These time limits are set out on the first page of the
statement
of claim as
follows: An additional ten days
extension is available by serving a document known as a
notice of intent to defend. This document merely indicates
that the defendant
intends to defend the action.
Most notices of intent to defend are filed by a lawyer on
behalf of the defendant. Unlike a statement of
claim, a statement
of defence does
not have to be "issued" in the court office, although a
paper copy (or electronic notice of it) must be filed with
the court office. Often, the
defendant
has a claim back against the plaintiff.
This claim is asserted by way of counterclaim and is
included with the statement of defence in a single document
entitled a statement of defence and counterclaim. As long as
the counterclaim is being made only against existing parties
to the action, it does not need to be issued and filing a
paper copy (or electronic notice of it) is sufficient. Where
the counterclaim involves additional persons or corporations
who are not already parties to the action, the counterclaim
must be issued in the court office. Where a defendant
wishes to assert a claim against a co-defendant, this claim
is contained in a crossclaim.
If a defendant
disputes the crossclaim of a co-defendant, the defence is
contained in a document called a defence
to crossclaim. A
crossclaim or defence to crossclaim does not have to be
"issued" in the court office, although a paper copy (or
electronic notice of it) must be filed with the court
office. In some cases, the
plaintiff
can file a further document called a reply
which deals with any new issues raised in the statement of
defence. A reply does not have to be "issued" in the court
office, although a paper copy (or electronic notice of it)
must be filed with the court office. If the defendant
has served a counterclaim on the plaintiff, the defence
containing the facts upon which the defendant
relies in resisting the plaintiff's
claim is called a defence to counterclaim. Where the
plaintiff
intends to serve a reply as well, both are combined in a
single document, called a reply and defence to
counterclaim. A defendant
who has served a counterclaim also has the right to serve a
reply to defence to counterclaim in appropriate
circumstance. A defendant
who has served a crossclaim on a co-defendant which has been
defended also has the right to serve a reply to defence to
crossclaim in appropriate circumstance. Where there are third
parties, they are entitled to file a third
party defence.
Subsequent parties have similar rights. In addition, each
third or subsequent party can serve a statement of defence
to any prior claim at other levels in the action. For
instance, this would allow a third party to defend and
resist the plaintiff’s claim against the defendant with
any facts or defences not pleaded by the
defendant. These documents, as served
in the action, are bound together into a document called the
trial record. The trial record is filed by the party who
formally sets the action down for trial. Mediation For actions in Toronto,
Ottawa and Windsor, the parties must attend at least one
mandatory mediation session. In Simplified
Procedure cases,
only those cases selected by the court are subject to
mandatory mediation. The parties are given a short period of
time to select a mediator of their choosing, failing which,
the court will appoint a mediator from a roster of
authorized mediators approved by the government. The costs
of the mediation are shared among the parties. A half day
mediation session currently costs $600 plus applicable GST.
In some cases, there is a small additional charge for
facilities rental. If the parties choose their own mediator,
the costs can be much higher. The parties are required to
file a statement of issues, together with relevant documents
and expert reports, prior to the mediation session.
Mediation is a form of alternative dispute resolution. At
the mediation session, the mediator will act as a
facilitator to attempt to have the parties resolve their
dispute. Current statistics suggest a settlement rate of
approximately 50% at the mediation, or shortly thereafter.
Mediators have different styles and approaches to this
process and often bring special expertise or experience in a
specific practice area. Motions Motions are interim
proceedings to resolve a specific aspect of the litigation.
They are used in a wide variety of situations in an
action.
For instance, they are often used to obtain temporary relief
until trial (a motion for an injunction), to challenge the
pleadings of the other party (a motion to strike out a
pleading as disclosing no reasonable cause of action or
defence), to require the opposite party to comply with
obligations under the rules (a motion to require the other
party to answer proper questions on an examination for
discovery) or to deal with procedural relief (a motion to
change the place of trial). They can vary from very
simple motions made in writing to very complex and costly
contested motions. Discovery Once the pleadings
have been exchanged, the next stage is called discovery.
There are actually two aspects to the discovery process. The
first is the discovery of documents which is available in
every action.
All parties prepare a list of documents relevant to the
issues in the action and verified by an affidavit confirming
that the party has listed all relevant documents. This is
called an affidavit of documents. The second is called an
examination
for discovery.
This involves the testimony of the parties, (or a
representative in the case of partnerships and corporations)
taken under oath in the presence of lawyers for all parties.
A court reporter makes a verbatim record of the questions
and answers. This is available in all cases except those
under the simplified procedure. Discovery is a very
important part of the litigation process and there is a
separate Discovery
Guide available
for a more detailed explanation of this step. Examination
for discovery is not permitted under the Simplified
Procedure. Pretrial After completion of the
discovery process, one of the parties will set the action
down for trial. This is an administrative step which signals
the court that the case is ready for pretrial and trial.
Once the case has been set down for trial, the court will
schedule a pretrial conference. In simplified procedure and
case management cases, the pretrial date is scheduled
automatically by the court. A pretrial conference is
conducted by a judge (who cannot be the judge at the trial)
with the lawyers for all parties. The pretrial judge tries
to arrange a settlement, or, if the matter cannot be
settled, he or she will try to get admissions and take steps
to try and streamline the trial. In Toronto, the parties are
not required to attend the pretrial. Outside Toronto, the
practice varies with the region or presiding judge. In all
cases, clients should be available by telephone to give
instructions regarding settlement or other
matters. If the case did not settle
at the pretrial conference, it will proceed to trial. Trial
scheduling practices vary by judicial region. In Toronto,
there are Trial Scheduling Courts and in other centres,
there are Assignment Courts. Both of these involve court
appearances for trial administrative scheduling purposes. In
some areas, a trial date is assigned at the pretrial
conference or obtained on consent from an administrative
official called the trial coordinator. The two or three weeks
before trial are spent in a detailed review and preparation
of the case. All witnesses are re-interviewed, exhibits
prepared, and conferences held with witnesses and with
clients. What is expected of you at trial will be explained
in detail before you actually go to court. Appeals If an unsatisfactory
result is obtained at trial or on a motion, one of the
issues to be considered is whether or not an appeal is
warranted. This will involve a consideration of the merits
of an appeal based on the actual decision of the judge and
the costs of an appeal. This is a very situation specific
decision which must be made at the time, sometimes within a
very short time frame (particularly for appeals from
motions). Settlement Settlement is possible at
any stage of the litigation process, even when mediation is
not required. We will be asking you to consider making
settlement offers when appropriate to take advantage of the
costs consequences of doing so. A settlement offer does not
necessarily mean that there are serious weaknesses in your
case. It usually reflects the basic principle that it is
more economical to settle with an acceptable and certain
result than to pursue a claim to trial. Regrettably, it is
not always possible to obtain an acceptable settlement
position from the other side. While we will be able to
provide you with our opinion, recommendation and advice, the
final decision on settlement will always be yours to
make. Access Since my practice involves
much court time, I may not be always available when you
call. However, I will be pleased to return your call as soon
as possible if you leave a message with my office. |
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Any questions? If you have any questions about the litigation process, please contact us at: W. Bruce Drake Hooey · Remus Telephone: (416) 362-2051 Facsimile: (416) 362-3646 Suite 400, 1 University Avenue Toronto, Ontario M5J 2P1 eMail: bdrake@hooeyremus.com |
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