CLIENT GUIDE
   Litigation Process Overview

(This is an edited version of our Client Guide which provides general information and is made available to our clients to assist them to understand the litigation process.)

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:

Pleadings - where the issues are set out in writing
Mediation - where there is an early attempt at facilitated settlement
Discovery of Documents - where the existence of relevant documents are disclosed
Examination for Discovery - a pretrial examination of a party (not available in Simplified Procedure cases)
Motions - pretrial hearings on specific issues
Pretrial - a settlement and trial management conference with a judge
Trial - the hearing in which a judge will decide who wins
Appeal - the unsuccessful party tries again
Enforcement - where the successful party collects on the judgment

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.

Trial

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.

   FURTHER QUESTIONS

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
330 Bay Street, SUite 210
Toronto, Ontario M5J 2S8
eMail: bdrake@hooeyremus.com
 

Website: www.hooeyremus.com 


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