By MURRAY SNIDER, Founding Partner

1. Commencing a Claim

If a person wishes to sue for $25,000.00 or less, than the proper place to start an action is in the Ontario Small Claims Court.  For claims that are over $25,000.00, the claim must be commenced in the Ontario Superior Court of Justice. The information described in this document is for actions started in the Superior Court of Justice and for claims that are over $25,000.00 threshold.

The plaintiff is the party that is suing another person or business. In order to commence a lawsuit in Ontario, the plaintiff must prepare a statement of claim detailing the amount they are suing for along with a concise statement of material facts they intend to rely on in court. Once the statement of claim is prepared and the required filing fee is paid to the Minister of Finance, the court will have the statement of claim issued.

If the claim amount is for $100,000.00 or less, the claim is commenced under Rule 76 of the Rules of Civil Procedure, this process is known as simplified procedure.  If the claim is over $100,000.00, then it would need to be started under the ordinary rules. There are situations where the parties can agree to use the simplified procedure for claims that are over $100,000.00.

Once the statement of claim is issued with the court, the plaintiff must serve the claim on all of the named defendants and file an affidavit of service with the court.

2. Defending a Claim

If the defendant intends to defend an action that has been commenced against them, they must prepare a statement of defence and have it served on the plaintiff and all other parties in accordance with the Rules of Civil Procedure.  A filing fee is required, and the defendant will have to prepare an affidavit of service indicating that the defence has been served on the other parties.

At this stage, the defendant may also commence a counterclaim against the plaintiff, a cross-claim against a co-defendant, or make a 3rd party claim against another party not yet named in the litigation.

If the defendant does not defend the action within the 20-days of being served with the statement of claim, the plaintiff may have the defendant noted in default for failing to file a defence within the prescribed time according to the Rules of Civil Procedure.  Once a party has been noted in default, they are no longer permitted to file a defence without first obtaining the consent of the plaintiff or by bringing a motion for an order allowing them to file a defence.  They are also deemed to have admitted all of the allegations contained in the statement of claim, leaving the plaintiff free to seek default judgment against them.

3. Discovery Stage

If you wish to obtain evidence using discovery, the parties will have to agree on a discovery plan.  This stage allows for the exchange of evidence through the discovery process.  As of January 1, 2010, the parties are required to agree on a discovery plan within 60-days after the close of pleadings and prior to any other attempts to obtain evidence.

An affidavit of documents must be served on all of the other parties involved in an action and will list all of the documents a party has in its possession or control.  Either party may serve a notice of examination on an opposing party that will indicate the time and place where they must attend to answer questions under oath. These examinations are recorded and transcribed. This transcript can later be used at a trial to challenge the evidence that is being given. The maximum time limit to examine another party is 7 hours. This time limit applies regardless of the number of persons to be examined.

At the examination date, you must bring with you all of the documents that have been listed in your affidavit of documents that are not privileged.

4. Mediation

Mediation allow for the parties to settle a lawsuit outside of the courts. A key distinction between a mediator and a judge is that a mediator does not decide cases or impose settlements on the parties.  Mediation can often save the parties both time and money.

Under rule 24.1, if a civil action has been started in Toronto, Ottawa or Windsor, the parties are subject to mandatory mediation. This takes place 180 days after the first defence has been filed and the location is usually one that is convenient and acceptable to the parties.  Prior to conducting a mediation, each party will create a mediation brief, and have it served on the other parties as well as the mediator.

The mediation brief will detail the legal issues in dispute and will give an opportunity for the parties to elaborate on their positions.  A mediator serves as a neutral party whose primary goal is to support active dialogue and help the parties resolve their issues. All discussions in a mediation are kept confidential, including any settlement offers that are made during the mediation.

If the mediation does not produce results, the parties may request to have a further mediation or begin the process of preparing for a trial.

5. Setting down for Trial

The serving and filing of a trial record signifies a party setting down an action for trial.  The trial record will include all orders and pleadings to date. The registrar places the action on a trial list and the parties may have to attend assignment court in order to pick dates when they will be available to attend trial.

6. Pre-trial Conference

A pre-trial must be held prior to a trial. This is where the parties attend before a judge and attempt to narrow down the issues for trial. The parties have an open dialogue with one another to determine whether their issues can be resolved prior to a trial.

You want to ensure that all outstanding disclosure issues have been resolved and both parties are prepared and have all the evidence they need and intend to rely upon at trial.  The parties should have a good grasp of what their strengths and weaknesses are and should be prepared to negotiate and work towards a settlement.

7. The Trial

If the parties can’t resolve their issues or come to a settlement at the pre-trial conference, then a trial will be necessary.  At trial, the plaintiff and defendant may choose to make opening statements and are provided with an opportunity to introduce to the judge or jury their case.  The opening statement is when the parties explain what they are trying to prove throughout the trial.

Each party will present their evidence by calling witnesses and entering documents as exhibits. The plaintiff’s witnesses are called first to testify and are examined and then will be cross examined by the other party. After the plaintiff is finished calling their witnesses, the defence will have an opportunity to call theirs.  At the conclusion of a trial and once both parties have called all of their witnesses, both the plaintiff and defendant have an opportunity to make closing submissions.

Once the parties have completed their closing submissions, the judge may give a judgment in court. This is not always the case and there are times where the judge may reserve his decision and provide the judgment at a later date.

Civil and Commercial litigation has always been at the core of Chand Snider’s practice.  We have experience representing clients in a diverse range of disputes.  No matter the circumstances, our litigators possess the skills and expertise to achieve the best possible outcome for you or your business.  We are trial lawyers and problem solvers.  Let us put our experience to work for you. Call Chand & Co. at 416-583-2377.

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