Litigation is a complex process that requires careful attention to detail and a thorough understanding of the rules and procedures that govern the legal system. In this blog post, we explore the various stages of a lawsuit in Ontario, from the initial pleadings to the final trial. If you’re looking to gain a better understanding of the litigation process, this blog post is a concise resource that will provide insights into the legal landscape in Ontario.
Pleadings: Setting the Stage for a Lawsuit
The first stage in any lawsuit involves the preparation and exchange of pleadings. These documents outline the claims, defences, and relief sought by the parties involved in the litigation. Typically, the plaintiff initiates the process by filing a statement of claim, which sets forth the facts supporting their case and the remedies they seek. If time is of the essence, a notice of action may be issued first, with the statement of claim following within 30 days.
The defendant must then respond by submitting a statement of defence, and the plaintiff may reply if necessary. It is essential that pleadings are concise and accurately reflect the material facts of the case without including evidence. Pleadings that fail to adhere to these requirements may be subject to being struck out.
Statement of Claim: Initiating the Legal Process
The statement of claim must be personally served on the defendant within six months of its issuance. Service rules differ depending on the type of defendant, such as individuals, corporations, or municipalities, as well as their location, whether in Ontario or elsewhere. When dealing with foreign defendants, it’s crucial to be mindful of jurisdictional rules and potential challenges to avoid delays and additional costs.
Statement of Defense: Responding to Allegations
In Ontario, defendants have 20 days to submit their statement of defence after being served with the statement of claim. This deadline is extended to 40 days where a defendant is served elsewhere in Canada or the United States and 60 days where a defendant is served outside Canada or the United States. A defendant may also serve a notice of intent to defend, which provides the defendant with an additional 10 days to prepare and deliver a statement of defence. If a defendant fails to submit a defence, they risk a default judgment being entered against them, which can only be set aside in specific circumstances.
Reply: Addressing New Issues and Positions
A reply is necessary if a party seeks to establish different facts or adopt an unpleaded position. The deadline for submitting a reply is typically 10 days after the delivery of the statement of defence, or 20 days if a counterclaim is involved. The pleadings phase closes once all replies have been submitted or the deadline for submitting a reply has passed.
Discovery: Uncovering the Facts
The discovery process in Ontario emphasizes the principle of proportionality, ensuring that the time and expense devoted to gathering evidence are commensurate with the complexity and importance of the case. During this stage, parties are required to agree on a written discovery plan, which outlines the scope, deadlines, and other pertinent details related to the gathering of evidence.
Documentary Discovery: Identifying and Disclosing Relevant Documents
As part of the discovery process, parties must submit an affidavit of documents listing all relevant materials related to the case. Failure to comply with this requirement can result in significant consequences, such as being barred from using undisclosed evidence at trial or having claims or defences struck.
E-Discovery and Electronic Documents: Tackling the Digital Age
With the majority of documents now being created and stored electronically, e-discovery has become an integral part of the litigation process. The Sedona Canada Principles provide guidance on managing electronic documents, emphasizing proportionality, flexibility, and cooperation.
The “Deemed Undertaking” Rule: Protecting Confidentiality and Limiting Disclosure
The deemed undertaking rule in Ontario restricts the use and disclosure of documents obtained during the discovery process. Parties and their counsel are only permitted to use the discovered evidence for the proceeding in which it was acquired. Exceptions to this rule include evidence filed with the court or used in hearings, and documents used for impeachment purposes in other proceedings.
Examination for Discovery: Questioning the Adverse Party
After a party has served their affidavit of documents, they may proceed with examinations for discovery. This stage involves the questioning of representatives from the opposing party to obtain information related to the case. The scope of these examinations is determined by the matters pleaded and can cover evidence supporting the pleadings, potential witnesses, and expert findings.
Motions: Resolving Issues and Advancing the Case
Throughout the litigation process, various motions may be brought before the court to address specific issues, such as summary judgment or document production. Parties must ensure that they follow the appropriate procedures for filing and serving motions, as well as adhering to time requirements. While motions can help to advance or defend a claim, they can also lead to delays and additional costs.
Mandatory Mediation: Encouraging Early Resolution
In certain jurisdictions in Ontario, including Ottawa, Toronto, and Essex County, early mediations are required for specific types of claims. Mediation sessions must occur within 180 days after the first defence is filed unless the court orders otherwise. It is crucial for parties to be aware of the consequences of failing to attend scheduled mediation sessions, which can result in the dismissal of the action, the striking of the Statement of Defence, or the imposition of cost penalties.
Pretrial Conference: Streamlining the Litigation Process
A pretrial conference must be scheduled within 180 days of setting a trial date. This conference aims to resolve issues without a hearing and streamline the proceedings for efficiency and cost-effectiveness. The pretrial judge is generally not involved in overseeing the trial unless all parties consent.
Trial: The Final Stage of the Lawsuit
In Canada, most civil trials do not involve juries, with some claims explicitly prohibited by the Ontario Courts of Justice Act. Parties can also motion to strike jury notices for complex cases. Trial procedures for judge-alone or judge-jury trials are similar, involving opening statements, witness examinations, and closing arguments. Witnesses may be excluded from the courtroom until called to testify.
The judgment may be rendered immediately or reserved, with the latter being more common. Typically, the winning party is awarded partial indemnity costs, covering approximately 40% of their legal fees and disbursements. In specific circumstances, higher costs may be awarded. If a party’s offer to settle, made at least 7 days before trial, results in a judgment as favourable or better, they are entitled to partial indemnity costs up to the offer date and substantial indemnity costs thereafter.
Navigating the litigation process in Ontario requires a comprehensive understanding of each stage, from initial pleadings to the final trial. Careful attention to detail and adherence to rules and procedures are essential to ensure a successful outcome. By familiarizing oneself with the various aspects of litigation, including pleadings, discovery, motions, mediation, pretrial conferences, and trial proceedings, parties can better prepare for and manage the complexities of the legal system in Ontario.