Have you ever wondered what steps are involved when you initiate a lawsuit? It's easy to picture a case going to trial before a judge or jury but before a trial can take place, there are many steps that need to be undertaken before a matter can proceed through the court system. Here are the main steps of a civil proceeding in Ontario, keeping in mind that many cases settle before trial:
Before a lawsuit can be filed, an analysis of the strengths and weaknesses of a case need to be completed to determine whether a lawsuit is practical in the circumstances. In a car accident, the motor vehicle accident report would be reviewed to determine the issue of liability, medical records would be requested, witnesses would be canvassed and information about the potential defendants would be acquired through performing individual/corporate searches. Sometimes, parties are able to resolve their differences without needing to file a lawsuit, but often times, a fair settlement cannot be achieved without going to court. However, the decision of whether or not to sue should be discussed with a lawyer so that you understand the pros and cons.
A lawsuit begins with the statement of claim. This claim sets forth what the plaintiff is claiming, against which parties, along with the facts and law supporting the claim. The Limitations Act in Ontario provides that a statement of claim must be filed within two years from when a claim was discovered. In other words, if you intend to proceed with litigation, ensure that you are well within the timeline and seek legal assistance as early as possible, as pre-judgment interest will start accumulating for the claimant once proper notice to the defendants is provided. For claims valued at $25,000.00 or less, the claim should be initiated in the Small Claims Court of the Ontario Superior Court of Justice.
The statement of claim must be served on all defendants personally, unless the court orders otherwise. The defendants are then given a deadline to file a statement of defence, in which certain facts are admitted or denied. A defendant can also make a counterclaim against the plaintiff, a cross claim against other defendants , or issue a third-party claim against third parties.
After a statement of claim has been issued and all parties have filed their statement of defences (collectively known as the pleadings of an action), the case moves towards a "discovery" phase. Discovery is a phase in which all parties "discover" the facts and evidence supporting the positions of the respective parties. A step known as "examinations for discovery" can be conducted in person, allowing each side to examine the other side by asking questions. Evidence adduced from an examination for discovery can be used as evidence at trial. Occasionally, there are interlocutory motions relating to the discovery phase where parties cannot come to an agreement on what documents are relevant to produce in the lawsuit, and may seek an order from the court to decide the matter. If parties are refusing to cooperate or are causing unnecessary delay, motions can also be brought in court to compel parties to perform certain steps, or to enforce deadlines.
Trials tend to be expensive, lengthy and time consuming and the courts actively encourage the parties to settle their disputes out of court, whenever possible. As such, in Toronto, before a matter can be set down for trial, all parties must participate in mandatory mediation. At mediation, there is a neutral mediator who helps all parties try to resolve their issues in dispute and settle the file. A mediator can also help parties better understand the positions of opposing parties, to help guide parties towards reaching a resolution.
If the parties are unable to come to a resolution, the matter proceeds towards a pre-trial conference before a judge. At a pre-trial, the issues for trial are narrowed and settlement is encouraged. The judge may make certain orders or directives to ensure that the trial proceeds as efficiently as possible.
A trial can take place before a judge alone or with a jury. The lawyers will deliver opening and closing statements and witnesses will be called to the stand for examinations in chief (where the party who called the witness asks questions) and for cross-examinations (where opposing parties question the witness). After all the evidence is heard, the judge or jury will deliver the verdict. Trials vary in length depending on the complexity of the issues and the number of witnesses called.
Settling a case before trial
Where all parties are willing to act reasonably, settlements are ideal as trials can be unpredictable as the decision making power is left in the hands of either a judge or members of the jury. However, there will always be circumstances where parties have divergent views that cannot be reconciled through private settlement and the issues must be explored at trial.
As an example, in June of this year, our firm was successful at a trial against Starbucks, where although we had agreed to the amount of damages before trial, the issue of whether Starbucks was liable under the Occupiers' Liability Act for the area of the sidewalk outside their patio was in dispute and a trial was required to determine that issue alone. It was the position of Starbucks that the sidewalk was the jurisdiction of the City of Toronto but we successfully argued that Starbucks was responsible as an occupier because they invited customers into their store through that entrance by the sidewalk. The jury then found that Starbucks had been negligent and failed to meet a reasonable standard of care in their winter maintenance. Since the parties were able to agree to damages beforehand, the trial was shortened to deal with liability only, but this is an example where occasionally, parties are simply too far apart that the only way to resolve an issue is to go to trial.
If you have any questions, feel free to email me at: firstname.lastname@example.org
MORE ON HUFFPOST: