Anatomy of a Law Suit in Ontario, Canada

Ontario enjoys a sophisticated legal system and a well educated judiciary which results
in a somewhat predictable litigation process. The article which follows is a
general outline and a brief guide to help you understand the basic elements of
the civil litigation process leading up to trial in Ontario. It does not cover
all scenarios, procedures and steps nor any of the appeal process. This article
is provided as a simplistic, skeletal overview of the litigation process in
Ontario
and is in no way to be considered as a determinative description of the court
system in Ontario. Readers should keep in mind that each case is different and
that this article is not intended, nor should it be considered, to be legal
advice. 

The Rules of Civil Procedure in
Ontario, (the “Rules”), set out the process and rules of court by which
lawsuits progress to trial and verdict.

Step One – Pleadings

The injured party, the “plaintiff”, starts the lawsuit by preparing, filing
with the court and serving the defendant(s), those who have caused the injury,
with a Statement of Claim. This is the document that sets out, in the form
prescribed by the Rules, a detailed description of the events and damages
suffered by the plaintiff at the hands of the defendant. The defendant then
must, within 20 days if a resident of Ontario, or, 40 days if it is ordinarily a
resident out of the province but within Canada
or the

United States, or 60 days where the defendant is anywhere else, serve on the
plaintiff and file with the court a Statement of Defence. This document sets out
the details of the defendant’s defence to the allegations of the plaintiff. It
is to be noted that Corporate parties, both plaintiffs and defendants must be
represented by an attorney licensed to practice law in Ontario.

Step Two – Mandatory Mediation

In Ottawa, mandatory mediation is still required by the court. The parties are
required to attend before a mediator who is either agreed to by the parties or
court appointed. This mediation can occur either before discoveries or after.
(See below for a description of the discovery process).

Mediation is an opportunity to allow the parties to try to resolve their
differences before going through the expense of litigation. The parties,
personally, or in the case of a corporate defendant, an individual authorized to
settle the matter, must attend. The discussions that take place at the mediation
are confidential and cannot be disclosed to the court or any other third party,
without the consent of all of the parties to the mediation. The details of the
actual terms of settlement may be disclosed however.

The mediator is an individual who has been trained and accredited by the
province of Ontario to provide mediation services. The mediator does not give a decision, and
his/her findings and/or opinions are not binding on the parties. The parties are
free to accept or reject any opinion that the mediator may have given at the
mediation.

Step Three – Discoveries

The discovery process may occur before or after the mediation. This is a
decision made by the parties. It may be, due to the complexities of the issues,
that discoveries take place before the mediation, so that all parties have the
benefit of seeing all of the evidence that will be put before the judge at the
actual trial, should it occur.

Generally speaking, the discovery process is a process wherein the parties
provide, each to the other, all of the relevant evidence of the parties, in
their possession, to each other. In order to prepare for discoveries, the
parties each prepare a document called an Affidavit of Documents. In the
Affidavit of Documents the parties list all of the documents and other evidence
(recordings, photographs, etc) in their possession or that used to be in their
possession, which are relevant to the dispute. That includes documents and
evidence that are not in that party’s best interest. Any failure to provide
all of the evidence, or the destruction of evidence can carry severe
consequences.

Once the Affidavits of Documents are exchanged, the parties are brought
together, and the parties, through their counsel, are entitled to question each
other, under oath, about the events surrounding the dispute. These questions and
answers are recorded and transcribed. The transcripts, or any portion of them,
may be used as evidence at the trial. Thus, the plaintiff may enter into
evidence the transcripts of the defendant and the defendant may enter into
evidence the transcripts of the plaintiff.

Motions

Disputes often arise between parties, during the time leading up to the trial,
regarding procedural and preliminary
issues. These disputes may relate to, and this is by no means an
exhaustive list, timing, jurisdiction of the court, questions asked or answers
given at discoveries, security for costs or access to certain information and/or
documentation. The evidence provided to the court is usually limited to
affidavit evidence, (an affidavit is a written statement of fact, sworn under
oath by an individual).

Step Four – Settlement Conference

Generally speaking, after discoveries have been completed and pre-trial motions
have been heard and adjudicated, the parties are given the opportunity to place
all of their information before a judge prior to the actual trial during a
Settlement Conference.

This is the last opportunity for the parties to resolve their dispute before
going to trial. The parties prepare Settlement Conference Briefs which are given
to the judge which set out the issues in dispute, the position of each party and
what each party seeks in terms of an outcome.

Step Five – Trial

The next step in the litigation
process is the actual hearing of the trial. After all of the evidence is heard,
either by a judge alone or a judge and jury, the verdict or decision is given.
After this decision is granted the parties have the right to appeal.

Our lawyers have over 50 years of experience
conducting complex and sophisticated lawsuits. Call us for a free evaluation of
your matter.

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