THE LITIGATION PROCESS
By JAMESON CLOW , Civil
Litigation Department
Experience has shown that one of the most frustrating and
least understood elements of a civil proceeding, from the
client's perspective, is the considerable time involved
in initiating a civil action and its ultimate completion.
The civil litigation process has built into its function
an element of timeliness, or as may be perceived by the
client, a lack thereof. In assessing the time involved,
it is important to recognize that the amount of time involved
in the process is, in part, directly related to the concept
that the judicial system should strive for fairness to all
parties, including the opportunity to assess, research and
respond to steps taken by the opposing parties. The notion
that all parties should have an opportunity to know and
understand the arguments made by the opposing parties and
the facts upon which they rely has a long standing history
in our judicial system. In order to achieve these goals
it is necessary to build into the system certain time requirements.
In Ontario the process and procedures to be utilized in
a law suit are governed by the Ontario Rules of Civil Procedure.
These Rules set out the procedures and steps which must
be taken throughout the course of the law suit. (Please
note that matters falling under $10,000 come within the
scope of the Rules of Small Claims Court) Within the Rules
there are specific guidelines as to minimum time requirements.
However, for reasons of practicality, the time involved
between steps often takes significantly longer than those
minimum requirements.
A law suit is generally commenced by drafting, finalizing
and serving the defendants with a Statement of Claim. Depending
on the complexity of the claim, a significant amount of
time can be taken in researching both the underlying facts
and law which formed the basis of the claim.
Once the claim has been served upon the defendants, the
Rules of Civil Procedure provide that the defendant(s) have
a minimum of 20 days to file a Statement of Defence. However,
the defending parties can extend this time to 30 days by
filing a Notice of Intent to Defend. Typically, the defending
parties request additional time from the plaintiff to file
the Statement of Defence. Again, it is necessary for the
defending parties to conduct research into the underlying
facts and law so as to properly put forward a defence. As
with the Statement of Claim, depending on the complexity
of the matter, this can take significant time.
The defending party can also look at the possibility of
filing a cross-claim (a claim against other defendants),
a counter-claim (a claim against the plaintiff) or a third
party claim (a claim against a person who is involved in
the matter, but has yet to be named as a party to the action).
These types of claims all involve a similar 20 day time
period and extensions may be granted if requested.
Once the "pleadings" have been completed, the
parties must then collect and prepare an Affidavit of Documents.
The Affidavit of Documents contains a list of all documents
in the knowledge or possession of the parties as well as
production of any documents to which the party does not
claim privilege. Depending on the number of documents involved
in the action, this process can take a significant amount
of time.
In a law suit concerning damages in excess of $50,000,
the next step is for the parties to proceed to discoveries.
Typically, discoveries are not scheduled until the parties
have an opportunity to assess the Affidavit of Documents.
The discovery process is an opportunity for each side to
examine the other parties under oath in order to ascertain
their knowledge of the action. The scheduling of discoveries
involves co-ordinating the schedules of all lawyers involved,
all witnesses involved and the court reporting office where
the examination will take place. The complexity of the case
will dictate the amount of time taken for the examinations
for discovery. During the course of an examination the party
being examined can provide what is referred to as an undertaking
to the other side. An undertaking is, in essence, a promise
to produce information, documentation or to make efforts
to locate such information or documentation. Once examinations
are completed, the parties must then fulfil their undertakings
and collect the required information. This process can take
a significant amount of time to locate information or to
attempt to locate information. Again, a thorough assessment
of the examination of discoveries is required as the examinations
give the opportunity to test your case as well as the opposing
parties.
Once undertakings are fulfilled the matter is then set down
for trial. The matter is then placed on a list with the
court and a time for pre-trial and trial must be scheduled.
Again the schedules of the lawyers, witnesses and the court
availability must be co-ordinated.
This summary has not taken into account any delay which
may occur as a result of settlement negotiations to resolve
the matter.
This process has been altered somewhat to reduce both the
time and cost involved in matters which would fall under
$50,000. Matters which concern claims up to $10,000 fall
under the jurisdiction of the Small Claims Court. For information
regarding the process for procedures in Small Claim Court,
we would suggest you refer to the Ministry of the Attorney
General booklet "How to Make Small Claims Court Work
For You". Claims falling between $10,000 and $50,000
fall under the jurisdiction of the Simplified Rules of Procedure.
The Simplified Rules are very similar to the rules for claims
in excess of $50,000, with the exception that the discovery
process has been removed.
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The above is not intended to constitute
legal advice. Please contact a lawyer to clarify your
legal rights.
