FILING A LAWSUIT IN ONTARIO

If you have been treated unfairly by someone, you may have already considered filing a lawsuit against them. A lawsuit is often the most effective ways to get redress for the wrong you have suffered. However, the process is often long, and rarely simple. This article will outline the civil litigation process in Ontario.

PLEADINGS

In order to file a lawsuit, you must first file a Statement of Claim.  This document outlines exactly what wrong you have suffered, and what you are asking the court to do to make it right.  Even at this early stage of the proceedings, critical decisions about timing and location have to be made.  For example, if you wait too long to bring an action the court may tell you that your action is ‘statute-barred’, and prevent you from filing your lawsuit.  This is because the courts don’t want to be tied up listening to arguments about things that happened many years ago.  Generally, if you are going to seek a legal solution, it is a good idea to bring your lawsuit as soon as you have discovered that someone has wronged you.

You must also file in the correct location.  If your lawsuit has to do with an incident that happened in Ottawa, the court is typically not going to let you file a statement of claim in Toronto.  If you do try to file in a location different than one where the incident occurred, your opponent may move for an order forcing you to re-file your lawsuit in the city or town where the incident happened.  A qualified lawyer can assist you in making sure that your suit is filed correctly, and on time.

Your opponent is allowed to, and virtually always will, file a statement of defence in response to your statement of claim.   The statement of defence tells the court why the defendant disagrees with you and why they think they should not be liable.  If a statement of defence is filed, the trial is on.

DISCOVERY

Not so fast. Before you can go to court and start shouting “Objection, your honour!” both sides have to know exactly what they are arguing about.  That is what the Discovery process is for.  In Discovery, both sides have to produce all the documents they have that pertain to the alleged wrong, and share them with the other side. Depending on the complexity of the action, the process of documentary discovery can be very long and drawn out.

During discovery, your lawyer will also have seven hours to question the defendant on any matter relating to the action. The flip side is that your opponent’s lawyer also gets seven hours to question you on your version of the facts, your statement of claim, and your documents.

This can be a gruelling process, but by the time it is done both parties should have a pretty good idea of exactly where the points of disagreement are. Doing all this work during Discovery can help make the trial shorter.  By narrowing down the issues during Discovery, lawyers at the trial will only have to argue about the most important points of disagreement.

PRE-TRIAL CONFERENCE

The next step before actually getting to trial is to have a pre-trial conference.  This conference is held in front of a judge (but not the same judge who will be hearing the trial).  Both parties must attend the pre-trial conference.  The conference sets the tone of the trial to come.  The judge and the disputants discuss the possibility of a settlement, where the issues in dispute can be narrowed, and how long the trial is expected to last.  Once this conference is done, and assuming no settlement can be reached, the matter will (finally!) proceed to trial.

MOTIONS

It should be noted that the Rules of Civil Procedure allow both parties to bring motions either before or during a trial.  Motions primarily have to do with procedural matters.  However, each motion takes up a lot of time, because they often require the preparation and filing of a whole new raft of documents.

In some cases, a hearing on a motion can be almost like a ‘trial within a trial’.  For example, the defendant may move a Motion for Summary Judgement if they are convinced that you do not have a case. However, in order to prove that you have no legal basis for your claim, the defendant has to essentially argue the entire issue in front of the judge – thus creating the ‘trial within a trial’. After the long road to finally get to trial, motions can slow the process even further.

TRIAL

Assuming that both parties are still disputing the matter at this stage, the action will get to trial.  The trial may be before a judge, or before a jury.  In fact, the trial will probably be a lot like what you have seen in the movies: opening statements will be made; witnesses will be examined and cross-examined; both sides will present closing statements.  At the end of the trial (which can last many weeks) the judge or jury will make a decision.

The courts in Ontario are some of the best in the world.  If you cause is just you can expect that the court will, more likely than not, rule in your favour.

POST-JUDGEMENT EXECUTION

Once the judge has ruled in your favour, you can finally put this legal matter behind you, right?  Well, unfortunately that is not always the case.  Your opponent may choose to appeal the decision.  If that happens, then you cannot collect on your judgement until the Court of Appeal has disposed of the appeal.

But even this does not end the matter.  Even though you have a judgement in your favour, your opponent may refuse to pay up.  There are numerous legal avenues available for enforcing a judgement in your favour.  In the case where an unsuccessful defendant refuses to pay up, the assistance of an experienced lawyer may be necessary.  A qualified lawyer can use a wide variety of tools and mechanisms for enforcing your claim, and ensuring that you get the recompense you deserve.