What is civil litigation?
Civil litigation is one way that people, corporations, and other entities can enforce their rights. Those rights can include property rights, the right to rely on an agreement, and the right to be free of certain wrongs, like negligence and breaches of privacy, and enforcing a breach of rights by the government. These procedures can also provide other forms of relief. Because civil litigation is such a broad area, the procedures involved can vary depending what the parties are trying to achieve. The most common procedure used by parties in civil litigation is an “Action”, which is why this article is about what you can expect if you ever find yourself considering or becoming involved in an Action.
None of the information in this article should be taken as legal advice. If you are considering or are involved in a legal action, you can obtain legal advice from a licensed legal professional.
Starting an Action
At its most basic, an Action is a dispute between at least two parties: 1) the parties who believe that their rights were breached (Plaintiffs) and 2) the parties who they allege breached those rights (Defendants). Of course, this can all get more complicated, if for example the Defendant counterclaims against the Plaintiff, claims against another Defendant, or claims against a Third Party. But, for the purpose of this article, we’ll keep things simple and assume just one claim by a Plaintiff against a Defendant.
The Plaintiff typically starts the Action by issuing a document called a Statement of Claim, which sets out the facts, their allegations, and what relief they are seeking. Drafting a Statement of Claim can take some research or legal knowledge; it’s not as simple as just setting out what happened. Not every wrong entitles a Plaintiff to relief. In order to be entitled to relief, the Plaintiff must show that the what the Defendant did meets all the criteria for a recognized “cause of action”. There are lots of recognized causes of action (some of the most common being breach of contract and negligence). If, the Plaintiff realizes they can’t make out a cause of action after the Action is started, it may not be as simple as just ending the Action if the Defendant does not agree. But a plaintiff cannot take forever to decide whether they have a cause of action because in Ontario an action cannot be commenced more than two years after the Plaintiff discovers the claim.
A Plaintiff looking for monetary compensation or property that is valued at less than $35,000 can consider using Small Claims Court, which is intended to be a more user-friendly, efficient, and cost-effective process.
The first time a Defendant typically finds out about an Action will be when they are served with the Statement of Claim. The rules differ depending on what type of entity is being served, but most often the Statement of Claim will be hand-delivered by someone, such as a process server. Once served with a claim, Defendants need to respond with their Statement of Defence, which, like the Statement of Claim, will set out what the Defendant says happened. It will also explain why the Defendant does not believe the Plaintiff is entitled to the relief they are claiming (or not all of it). Something to consider before responding to a Statement of Claim is whether the Defendant has coverage under an insurance policy for the claim, because, if there is a duty to defend, the insurer may provide the Defendant with legal counsel.
Next up- Discovery
The Statement of Claim and Statement of Defence set out the facts and legal principles that the parties are relying on. The next step is to back those facts up with evidence. Unlike in many legal TV shows, that doesn’t mean going straight to an exciting trial with surprise witnesses. In Ontario, the parties are required to share with each other all relevant documents well before the trial (even the ones that may not be helpful to the party). This protects the parties from “trial by ambush” but it also means that parties may need to turn over documents they would prefer to keep confidential (such as medical and financial records).
Once the parties exchange documents, each party examines the adverse parties under oath in a procedure called an “examination for discovery”. These examinations are recorded in a transcript (not video) and can be relied on by the adverse parties in other parts of the litigation, such as motions or trial. Not only does this help flesh out the evidence that the parties are relying on in the support of their positions, but it can pin the parties down to their stories. This procedure does not take place in Small Claims Court. Instead the parties take part in a settlement conference where they try to resolve the issue with a judge or deputy judge.
Trial or Settlement?
Once the parties have defined the issues in their Statement of Claim and Statement of Defence and the parties have fleshed those issues out with their documentary and examination evidence, the parties can usually set their matter down for trial. Very few Actions actually make it to trial. Most actions settle. In fact, in some jurisdiction in Ontario, the parties are required to attend a mediation before they can set the matter down for trial. Even where the parties are not required to mediate, if a party unreasonably refuses to mediate, it could have cost consequences if they go to trial and there is a judgment.
A mediation is where the parties sit down with an independent third party who tries to help the parties come to an agreement to resolve the dispute. The styles mediators use can vary widely and parties should put thought into who they choose to mediate (particularly as the parties will need to pay the mediator for their time and their rates vary too).
If the parties cannot settle on their own or in mediation, before trial, the parties will attend a pre-trial conference with a Judge, which is much like the settlement conferences in Small Claims Court. The Judge will typically try to mediate a resolution, and, if they can’t, help to decide some details about the trial.
It is a rare case that makes it to a trial. Trials require a lot of preparation, time, and legal fees if the party is represented. Most of these costs are probably not going to be recovered even if a party is 100% successful at trial. Trials also represent a big risk (can you be certain a witness will say what you expect or a judge will believe you even if you are telling the truth?) Even where a judgement is rendered in favour of a party, that is not always the end of the story. If the losing party does not pay, the judgment needs to be enforced by the party seeking payment using further legal procedures, which themselves require more time and costs.
Litigation can be a long and sometimes frustrating process, so it helps to go into it knowing what to expect and being prepared. This article is intended to provide, at a high level, some information about the process. Of course, speaking with a licensed legal professional can provide not just more detailed information but advice based on the specifics of a party’s case.
Karen Bernofsky, Affleck Greene McMurtry LLP