Civil Litigation

Criminal courts deal with charges of crimes, primarily under the Criminal Code. By contrast, civil courts deal with breach of contract cases, as well as torts, which in essence are wrongful/negligent acts that result in some harm or damage. In Ontario, civil actions are governed by the Rules of Civil Procedure. Currently, claims under $10,000 are heard in the Small Claims Court, although the monetary limit will shortly be changing to $25,000.

Most lawsuits are for money. You may be seeking damages for a breach of contract, or compensation for an injury. In some cases, other remedies are also available, in which a court will order a person or corporation to either do something or refrain from doing something. This type of relief is, however, significantly less common that suits for money alone. Although an award of money may not actually compensate you for some wrong or injury, it is generally the only remedy available to a court.

A successful party may obtain an order requiring the opposing party to pay a portion of legal costs, depending on the circumstances of the case. However, you will have to pay your legal expenses up front. Even if a judge orders the opposing party to pay some or most of your costs, there is no guarantee that you will get the money, as the opposing party may not have sufficient funds to pay you.

Every case is different. There are several stages to every case, and it often takes longer than most people expect, to bring a case to trial (if it goes that far).

The Rules of Civil Procedure govern the way in which legal actions are conducted. Every action is conducted in compliance with the Rules, which set out how actions are commenced, how they are defended, how evidence is exchanged and how matters can be brought to trial, amongst other matters.

Every action has at least one plaintiff, who is the person or corporation who starts the action. The defendant(s) are those against whom the action is brought. A party can be either a person or a corporation. If a person is a minor, or unable to make decisions for him or herself, a Litigation Guardian is appointed on their behalf.

Every action is commenced by a Statement of Claim and is then defended in a Statement of Defence. The pleadings set out the essential facts of the breach of contract or tort, or the defence so that the opposing party knows what claim is being made, or what defence is being asserted. The parties are restricted to the basic elements as set out in their pleadings when arguing their case at trial. Pleadings can often be amended during the course of the litigation, if necessary, but not always. It is important to include as many facts as possible at the outset.

If a defendant ignores a Statement of Claim, judgment can be made in his or her absence.

The Rules of Civil Procedure are based on the principle of disclosure. ?Trial by ambush? is a thing of the past, and the Rules create a scheme whereby each party must disclose the documents and other evidence, including expert reports, on which they intend to rely. The first step is the exchange of documents in an Affidavit of Documents. Next are Examinations for Discovery, followed if necessary, by the exchange of Experts? Reports. Once the parties are ready, a pre-trial will be scheduled before the matter goes to trial. There may be several court appearances to deal with matters that arise during the course of the litigation, particularly in relation to the exchange of information leading up to trial.

In many cases, it is not enough to present the bare facts. An opinion regarding the impact of those facts may be necessary. While anyone can testify as to facts, only experts can give opinion evidence. So for instance, anyone can say that they fell and hurt their arm: only a medical expert would be able to give a diagnosis such as a torn ligament, as well as a prognosis, such as how long it might take to recover. If either party wants to call expert evidence, the report of those experts must be exchanged well in advance of trial.

Each party has the opportunity (through counsel if counsel are retained) to ask the other party questions about the case, under oath, well in advance of trial, so that they know what evidence will be called at trial. The Examinations for Discovery are recorded and later set out in a transcript.

It really depends on how long the waiting lists are in that area. It is not uncommon to wait more than a year. It could even be longer. Going through the legal process takes time. Your lawyer also needs time to prepare your case before the beginning of the legal process. Each case will be different. Generally, a lawyer needs more time to prepare a complicated case than one with simple facts.

Even after a civil suit has been started, the parties can still reach a resolution. This is sometimes done through informal settlement meetings with the lawyers present, or more formal mediation sessions as well as through the court?s own pre-trial process. The attempts to settle the case do not stop until the trial has started (and sometimes continue even longer).

The Ministry of the Attorney General has useful information on the civil litigation process.