Applicants start civil proceedings to settle a variety of conflicts such as: disagreements about contracts, claims for personal injury or loss, claims for damage to property, or damage to reputation. Pleadings are the first step of the process. In this stage, the plaintiff or party commencing the proceeding files a statement of claim, also known as the originating document, which outlines the facts of the case, the legal basis of the case, and why the plaintiff is entitled to compensation as a result. The Statement of Claim (Form 14A or 14B) should be filed with Form 14F “Information for Court Use” along with payment of applicable fees at the Superior Court of Justice. If a plaintiff is suing for $35,000 or less, their claim should be filed in Small Claims Court instead. Once the court issues the statement, the plaintiff must serve a copy on all the defendants named in the claim. This is called service, and it must be done within six months of the court issuing and stamping the plaintiff’s claim.
The party getting sued, also known as the defendant must respond to the statement of claim with by preparing a Statement of Defence (Form 18A), completing an Affidavit of Service (Form 16B) and filing both together with the court.
The defendant has several options once they have been served with a notice:
- They can try and settle the case with the plaintiff.
- They can start a Counterclaim (Form 27A or 27B) by stating that the plaintiff owes them money, and the plaintiff is entitled to file a defence to the Counterclaim, similar to how the defendant was able to file a Statement of defence.
- They can start a Crossclaim (Form 28A) claiming that it is one of the other named defendants who is responsible for the plaintiff’s loss, and this named defendant is entitled to file a defence to the new claim in response.
- They can start a Third Party Claim (Form 29A) against someone who is not a named defendant in the lawsuit but who the defendant believes to be responsible for the plaintiff’s damages. This would have to be served to the third party and is similar to statement of claim. It also allows the third party to file a defence claim in response.
If a defendant is served with notice of a claim against them, they should not ignore it, as it can lead to the defendant being “noted in default”. This means that the court will assume the defendant’s lack of response is an admission of the claims made against them and a default judgment requiring the defendant to pay damages can be enforced.
The next step of the process is called discovery. In this stage, the involved parties provide information and evidence to support their claims. Discovery is an especially important part of the proceedings, as it allows both sides to evaluate the risks and advantages of going to trial, as well as assessing the strengths and weaknesses of their own claims and the other parties’ claims. In discovery, parties can narrow in and refine the issues to be presented in trial and re-evaluate based on the evidence presented by both side. There are two parts in the discovery stage- the discovery of documents, and the examination for discovery, where parties are able to question each other under oath. All involved parties must agree on a discovery plan within 60 days of the date when pleadings closed. Pleadings end once the defendant has filed and served their statement of defence. The discovery plan must include the names of all persons being examined in the discovery as well as timings and length of the examinations. It should also include how documents will be produced, the timings and costs involved, the types of documents that will be provided to the other party and when parties will serve their Affidavit of Documents (Form 30A or 30B).
The affidavit of documents must be served by the date mentioned in the discovery plan and should include a list of all relevant documents so that the other party knows what to expect and has time to prepare and respond. Civil proceedings are set up so that parties are not blindsided or surprised, and have a sufficient and fair chance of making their arguments and defending themselves. Therefore, to ensure transparency, parties must work together during discovery, submit a plan for discovery, and list the documents being used as evidence. Documents can include pictures, sound recordings, and videos, books of account, data and electronic information such as text messages or emails. Both parties have the right to examine and inspect the documents presented by the other party. The next step is examinations for discovery, where parties question each other under oath. To do so, a Notice of Examination (Form 34A) must be served outlining the time, date, and details for where the examination will take place. Parties can be in examination for up to seven hours, but can agree to less time.
The pre-trial conference is mandatory and all parties must attend it before the trial can be held. This gives parties a chance to discuss potential settlements, how long the trial might last and other issues. The pre-trial conference must be scheduled with the court registrar within 180 days of the case being set down for trial.
Motions can be brought forward to request judgment on different matters and can be brought forward by either party throughout the civil proceeding process. Motions can be brought for obtaining judgement on procedural issues or to request to exclude certain evidence from being brought forward, or to remove certain parts of the other party’s testimony to be recorded for example. Motions help parties address and resolve issues that arise during the litigation process.
The trial may be decided by a judge or a judge and a jury, though juries are generally rare in civil proceedings. During the trial stage, the parties involved will call their witnesses and present evidence by submitting evidence materials as exhibits. Witnesses must be informed about when to attend court, and if a witness may be hesitant to attend the trial, they can be required to do so by serving them with Form 53A “Summons to Witness”. A judge may present their judgment immediately after the end of the trial or release it sometime after the trial. This is referred to as reserving judgment. As mentioned earlier, if a defendant failed to file a statement of defence within the required timeline, the plaintiff can request a default judgment. To have the defendant noted in default, the plaintiff must prepare an Affidavit of Service (Form 16B) and “Requisition for Default Judgement” (Form 19D) to be filed with the court registrar. After this the plaintiff must bring a motion to obtain default judgment if the damages need to be assessed, or request for the registrar to sign if asking for a fixed amount of money (a debt, for example). If the plaintiff is bringing a motion to the judge, they may do so orally or in writing by filing a Notice of Motion and other appropriate forms.
Civil proceedings involve fees, and it is important to assess whether one is willing and ready to take a claim all the way to court. Most claims are settled before they make it to trial in order to avoid lengthy court processes and high costs. It is often preferable to reach a settlement with the other party and resolve the issue before trial. Consulting a lawyer is helpful in order to determine how to best approach your civil claim.
Sources:
Ontario, “Civil claims: suing and being sued”
NOTE: This article has been written for general information purposes only and does NOT constitute legal advice. For further questions and/or legal advice please consult a qualified lawyer.