Litigation refers to legal disputes between two or more parties when the dispute is non-criminal in nature. In Ontario, litigation follows a well-defined process. A litigation lawyer will be well-versed in this process, seen below, and their role within each stage.
Determination of jurisdiction
Claims of $25,000 or less are handled in Ontario Small Claims Court. Claims for more than $25,000 are started in the Ontario Superior Court of Justice. A lawyer will advise you on the amount to make your claim for and help prepare you for your dispute based on the jurisdiction.
Statement of claim
A statement of claim is made by the injured party, or plaintiff, and outlines the facts of the dispute and why they believe they are legally entitled to compensation. A litigation lawyer will be aware of the rules surrounding a statement of claim, such as time limitations. Your lawyer will also provide advice about your claim and draft the statement of claim document.
Statement of defence and counterclaim
The person served with the statement of claim, the defendant, has a limited amount of time to respond to the claim with a statement of defence. This statement will outline why the defendant believes they do not have to compensate the plaintiff; it may also include a counterclaim for compensation. If no statement of defence is made, the plaintiff can ask the court to find the defendant in default and to render judgment.
Reply and defence to counterclaim
The plaintiff and their lawyer may respond to the allegations made in the statement of defence and must issue a defence to any counterclaim made by the plaintiff.
Exchange a List of Proposed Witnesses and Document Briefs
Evidence must be presented at your trial to prove your claim. Evidence may include, documents, records or written statements. You are able to summons the authors of said documents, or summon witnesses with personal, first hand knowledge of the facts to support your claim. A Summons to Witness form will need to filed at the Small Claims Court office, there is a fee to issue. Your civil litigation lawyer, will correctly file the associated documents and witness forms.
Motions can actually occur through the litigation process. Motions are requests for rulings from a judge on preliminary and procedural issues, such as the inclusion of a certain document or line of questioning. Your civil or commercial litigation lawyer will file motions on your behalf as part of your agreed upon litigation strategy.
(only required for litigation filed in Toronto, Windsor or Ottawa)
The parties meet with a neutral mediator who tries to help resolve the issues in the case prior to requiring a formal trial. The mediation is confidential and if the mediation does not resolve the case, any discussions or settlement offers cannot be referenced during the rest of the litigation process. Your litigation lawyer will guide you through the mediation proceedings. In litigation filed outside Toronto, Windsor or Ottawa, parties can agree to conduct a mediation if they believe it is of benefit before trial.
If no settlement is reached and the above steps are complete, a party can “set the matter down for trial” by requesting the issue be placed on the trial list. After this, the parties must attend a pre-trial. A litigation lawyer will file the necessary documents on your behalf that enact the pre-trial and that are required for the pre-trial. At the pre-trial, a judge will hear statements on behalf of each party and help to try to reach a settlement. The judge is also allowed to provide their opinion of how the case would be decided if it reaches trial, though this is not binding. At the conclusion of the pre-trial, the judge can set the date of trial and complete a pre-trial report.
Litigation rarely reaches this stage due to the expense involved to the parties. During the trial, both parties provide evidence and witnesses. At the conclusion, a judge will make a binding decision. This decision may be appealed by either of the parties. A litigation lawyer will gather evidence, make statements, examine and cross-examine witnesses on your behalf during the trial. They will also advise you on whether or not to file an appeal at the conclusion of the trial.
It is rare for litigation to reach trial, let alone be ended by a decision at trial. A settlement is typically reached during one of the proceeding stages. Having an experienced litigator on your side will help you best present your side of the dispute, giving you the best chance of settling favourably.