Commencing an Action
An action is typically commenced by a statement of claim or a notice of action. The plaintiff outlines the material facts and claims for relief in these documents. The defendant responds with a statement of defence, potentially including a counterclaim.
Types of Proceedings
- Main Action: This involves the plaintiff suing the defendant directly.
- Counterclaims: The defendant may sue the plaintiff in response.
- Crossclaims: A defendant sues a co-defendant within the same action.
- Third-Party Claims: Involves bringing in an outside party who may be liable to the defendant.
Key Steps and Timelines
Issuing and Serving Documents:
- The statement of claim must be served within six months of issuance.
- The defendant must serve a statement of defence within 20 days if served in Ontario, 40 days if served elsewhere in Canada or the U.S., and 60 days if served elsewhere.
Pleadings:
- The plaintiff may reply to the statement of defence.
- In crossclaims, co-defendants can assert claims against each other.
Applications: Some cases are commenced by an application, which involves a hearing based on affidavits and documentary evidence rather than a trial.
Trials and Judgments:
- The trial process involves the examination of evidence and witnesses.
- Each action (main, counterclaims, crossclaims) will end with a separate judgment.
Defending an Action or Responding to an Application
When you are sued or need to respond to an application, follow these steps:
Review the Documents:
- Carefully review the statement of claim or notice of application. Understand the claims being made against you.
Statement of Defence:
- Prepare a statement of defence outlining your response to each allegation made in the statement of claim. This document should be served within the prescribed timelines: 20 days if served in Ontario, 40 days if served elsewhere in Canada or the U.S., and 60 days if served elsewhere.
- You may also include a counterclaim if you have any claims against the plaintiff.
Responding to Applications:
- If you are responding to an application, prepare affidavits and other documentary evidence to support your position.
- Attend the application hearing and present your arguments based on the evidence submitted.
Crossclaims and Third-Party Claims:
- If there are other parties who may be liable, consider filing a crossclaim against co-defendants or a third-party claim to bring additional parties into the action.
Settlement and Negotiation:
- Engage in settlement discussions where possible to resolve the matter out of court. This can save time and legal expenses.
Trial Preparation:
- If the case proceeds to trial, gather all necessary evidence, prepare witnesses, and develop a strategy for presenting your case.
- Ensure all procedural rules and deadlines are met to avoid any procedural default.
Important Considerations
- Timelines: Adhere strictly to prescribed timelines for serving documents and responding to claims to avoid default judgments.
- Combining Actions: Different types of actions (main action, counterclaims, crossclaims) can be combined but follow specific rules for pleadings and responses.
- Legal Advice: It is advisable to seek legal counsel to navigate the complexities of litigation effectively.
Understanding these steps helps navigate the complexities of initiating or defending a lawsuit, ensuring compliance with procedural rules to avoid adverse outcomes.
