Commencing a Claim

When suing for $35,000 or less, the claim commences at the Ontario Small Claims Court. Claims that exceed $35,000 are filed at the Ontario Superior Court of Justice.

The individual who has been harmed (the plaintiff) writes a Statement of Claim to begin the lawsuit procedure. The Statement of Claim contains the facts and legal arguments that the plaintiff believes entitles them to compensation from the other person (the defendant). The Statement of Claim must be filed before the statutory limitation period is over. Most cases must be filed within two years of the plaintiff discovering the defendant’s wrongdoing. Certain types of claims, however, have varying limitation periods. After reviewing the facts, your lawyer will be in the best position to advise you when the limitation period expires.

If the claim value is less than $200,000.00, the claim is filed under Rule 76 of the Rules of Civil Procedure, known as simplified procedure. If the claim exceeds $200,000.00, it must be filed under the regular rules. Sometimes, the parties can agree to adopt the streamlined approach for claims worth more than $200,000.00.

Defending a Claim

If a defendant is served in Ontario, he or she must promptly serve the plaintiff with a statement of defence. Defendants served in another province, the United States, or another country has a significantly longer period to file their statement of defence. The statement of defence explains why the defendant believes he or she should not compensate the plaintiff. If the defendant has a claim against the plaintiff (a counterclaim), it is filed with the statement of defence.

If the defendant can’t submit the statement of defence within the period specified, he or she may serve the plaintiff with a notice showing their intent to defend. This notice extends the defendant’s time to file a statement of defence. If the defendant fails to file a statement of defence within the required period, the plaintiff may request that the court enter a default judgment against the defendant.

Discovery Stage

From January 1, 2010, both parties must agree on a written discovery plan within 60 days of receiving the reply and, if applicable, the Defence to Counterclaim. The discovery plan specifies the extent of documentary discovery; the people produced for discovery examination, and the timetables for completing oral and documentary discovery. The party conducting the examination shall provide a notice of examination to any person being examined at least two days before the examination. Your lawyer collaborates with the other party’s counsel to develop this discovery plan.

Mediation

In all cases initiated in Ottawa, Toronto, or Windsor, parties must attend a mediation session within 180 days after the initial Statement of Defence is served. However, the parties can agree to extend this time restriction. Sometimes, the parties may postpone mediation to conduct discovery examinations first. Each party submits a mediation brief to the mediator and provides a copy to the other party before the mediation conference. The mediation brief describes the factual and legal points in dispute, states each party’s stance on each issue, and contains copies of the case’s most essential documents.

The parties convene with a neutral mediator who works to help them address the difficulties in the case during the mediation session. The mediator cannot compel the parties to accept a settlement, nor does the mediator have the authority to impose a conclusion on the parties.

Setting Down for Trial

After completing the preceding stages, a party can request that the case be scheduled for trial by requesting it be put on the trial list. The court will notify the parties that they must attend a pre-trial meeting within 120 days of the action being scheduled for trial. Before the pre-trial conference, each side must file a brief comprising various items needed by the court presiding over the pre-trial conference.

Pre-trial Conference

Both the lawyers and the clients must attend the pre-trial conference. The lawyers discuss their clients’ viewpoints, and the judge presiding over the conference seeks to help them reach an agreement. The judge may advise the parties how they would rule if the case were before them. The judge’s decision on the matter is not binding, and if the parties decide to proceed, the judge who presided over the pre-trial conference will not hear the actual trial.

The Trial

The parties may go to trial if a settlement cannot be reached. Because the legal fees involved are relatively substantial and there is always the chance that the party may lose at trial, the parties will frequently choose to settle the action before it proceeds to trial. In addition, because of the cost ramifications of settlement offers, parties may be apprehensive that if they lose, they may be obligated to pay the opposing party’s costs.

Both parties submit their evidence during a trial by calling witnesses. Expert evidence may be requested depending on the issues at hand in the litigation. The judge will render a decision binding on the parties after the trial. Sometimes, a party may file an appeal if dissatisfied with the judge’s judgment.

Each side will make their case by calling witnesses and submitting documents as exhibits. The plaintiff’s witnesses are summoned first, interrogated, and then cross-examined by the opposing side. The defence will have their turn after the plaintiff has completed calling their witnesses. The plaintiff and defendant can give closing arguments after a trial when both parties have introduced all of their witnesses.

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