So you want to commence a Civil Litigation proceeding? Things to Consider.

In Ontario, there are often numerous stages involved in the commencement of a civil lawsuit.

While they can often occur in sequential order, every case is unique with its own facts and circumstances. For instance, Motions (which are known as mini-trials) may have to be brought (prior to filing a Statement of Defence) in order to effectively “re-open” proceedings.

Generally, there are twelve key stages in the litigation process:

1. Determining jurisdiction;
2. Exchanging of Pleadings (ie. Statement of Claim, Statement of Defence, Reply, and Counterclaims);
3. Discovery plan;
4. Affidavit of Documents (Documentary Discovery);
5. Examinations for Discovery (Oral or in Writing);
6. Answering Undertakings and, if applicable, Motions to Compel Answers;
7. Motions;
8. Mandatory Mediation
9. Setting the Matter Down for Trial;
10. Trial

However, for today’s focus we will be addressing the first two stages:

STAGE 1: Determining Jurisdiction

The first step, and arguably one of the most important in the litigation process, is determining which Court the proposed Action should be started in. It is important to note that demanding on the quantum of damages sought, it will determine whether it should be brought in the Superior Court of Justice Small Claims Court Division or in the Ontario Superior Court of Justice.
Generally, if a person’s claim is for $35,000.00 or less it will be before the jurisdiction of the Small Claims Court. Anything greater than $35,000.00 will be in the Ontario Superior Court of Justice with the rule that claims from $35,000 – $200,000 being brought under the Simplified Procedure rule. This rule is important because it lists, among other things, reductions in the time permitted for Examinations for Discovery and costs allowed to be recouped.

STAGE 2: Exchanging of Pleadings

The next stage is the exchanging of pleadings. If you are the claimant, you will be referred to as the Plaintiff in the proceedings and will be required to serve and file a Statement of Claim. This Court document is important as it describes all the facts and reasons that the Plaintiff pleads should entitle them to be compensated by the opposing party.
Conversely, the Defendant to the proceedings will be required to serve and file a Statement of Defence, which similarly, describes the facts and reasons for why the Defendant should not be found culpably liable for any damages sought.
Often, the Defendant to a proceeding may feel as if they themselves were actually the aggrieved party. As a result, the Rules of Civil Procedure allows for the Defendant to also commence their own lawsuit in counter to the main action brought by the Plaintiff. This is referred to as a Statement of Defence and Counterclaim.
It is important to note that in one’s pleadings, all facts, reasons and defences that are intended to be argued in Court must be succinctly plead. If this does not occur, which sometimes may be the case, an amendment will need to be made – to the pleading – before it can be adequately raised in Court.
Lastly, once the Plaintiff receives the Statement of Defence, they are also afforded a right of reply. If the Defendant had also served a Statement of Defence and Counterclaim, the same right of reply will be permitted to the Defendant.
Once pleadings have officially closed, any and all amendments to the Statement of Claim, Statement of Defence, etc, can only occur if either all parties to the litigation consent or leave is granted from the Court. In either case, once one party is afforded the right to amend their pleadings, all parties are similarly afforded the same right, within the timelines stipulated in the Rules of Civil Procedure.
As every case in unique and will depend on the given facts of a scenario, it is always advisable to seek legal advice from experts in the legal field. To determine the strengths and weakness of your case, please contact Lakhan Tram LLP for more information.