​​The process of litigation in Ontario Small Claims Court

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

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.

Mandatory mediation

(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.

Pretrial conference

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.

Trial

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.

I am Sorry, Don’t Sue Me.

Apologies and Liability in Canadian Contract and Tort Law.

By Jonathan Marchand

People are strange and complex beings. However, despite this complexity, we tend to prefer simplicity and order, and have developed an amazing skill at pattern-matching. This skill has been a boon to humans during our development, leading us to develop art, writing, mathematics, science, and all the benefits of modern society.

However, when applied to people, that same thinking can lead to certain unfortune stereotypes and assumptions where all members of a group get judged together. Every nation seems to have one or two widely known ‘facts’ about its people which circulate continuously, and which seem to defy any attempt at suppression. Canada is no exception.

We’ve all heard the international stereotypes about Canadians -we’re too polite, we apologize for everything, we’re among the kindest people you’d meet. As far as stereotypes go, it’s not a bad one to have, but it’s obviously not true universally.

As far as apologizing goes however, there is some evidence that we are in fact uniquely susceptible – the near-universal prevalence of so called “Apology Laws” in Canada.

These laws make apologies inadmissible in court to prove liability for civil claims. This kind of law has popped up in sporadic locations worldwide, especially in places with high levels of litigiousness, but in Canada it is incredibly widespread.

All provinces except Quebec have their own apology laws, and so do the territories of Nunavut and Yukon.

Apologies and the Law

In 2009, the Ontario legislature voted into law the Apology Act. This Act specifically makes an apology by or on behalf of a person inadmissible to prove liability in tort or contract.

This means that if your neighbour’s land is flooded, and he thinks you may be responsible and sues you, he cannot use the fact that you said “I’m sorry for your loss” as an admission by you that you were responsible for the damage. While this may seem a bit silly, it’s actually very important.

In tort law, proving liability is most of the work in a case. Damages only come into play after you have established liability. This would also be very important in contractual breach cases, where an admission could be used to prove a breach occurred.

Whether it’s a landlord who is responsible for building upkeep apologizing for the water damage from a roof leaking, or a doctor apologizing for a case that led to an insurance claim, or a salesmen expressing sympathy for a faulty item sold, these admissions would previously (and would still in the majority of the world) be considered to be admissions of fault or guilt.

This can lead to some dehumanizing outcomes, such as the doctor who wants to express his sympathy at the loss of a patient to their family, but who cannot because if he does so it may be considered an admission of liability for malpractice or some other negligence action.

Apology legislation prevents this issue, and there is a growing movement in Canada among doctors and medical associations to be more empathetic and provide more sympathetic apologies to patients as a result.

What the Act does not do is make an apology inadmissible as evidence in a criminal proceeding or a proceeding under the Provincial Offences Act. If you apologize to the police for speeding, that apology will be evidence that you were speeding!

The Act goes further than just eliminating a baseline apology or expression of sympathy as admission, however.

The Apology Act

There are two general types of apology legislation. One only applies to expressions of sympathy or empathy, the simple “I’m sorry this happened.” The other, applies to apologies which also directly admit liability – “I’m sorry, this is all my fault.” There is a significant legal difference between the two apologies.

The Ontario Apology Act is of the second type, it disallows evidence of an apology made by a party to be admitted into evidence at trial, administrative proceedings, or arbitrations, unless that apology is made while testifying in that case. This applies even to express admissions of guilt if they are part of an apology.

The Apology Act is just one example of interesting legislation which can affect how a litigation case will resolve. Litigation is complex. There are many moving parts in any civil litigation case, and a case can turn on the smallest or most apparently insignificant things – like an apology. To properly navigate these troubled waters, it’s always best to have an experienced litigation attorney who can help guide you through the best path to your desired outcome.