When a dispute requires resolution through litigation, clients require experienced and skilled litigation counsel to provide sound advice and to advance their position in the most persuasive and effective way possible.
With over 25 years of experience, John has made hundreds of appearances for institutions, corporations and individual clients on many different kinds of cases at all levels of the court in Ontario.
Though each claim brought before a court is unique, the Ontario Rules of Civil Procedure govern all aspects of the litigation process and create a framework for the conduct of a court proceeding. Clients can typically expect a lawsuit to proceed through the following stages.
Pleadings define the legal parameters of the lawsuit. The drafting of effective pleadings requires an extensive working knowledge of the law and collaboration between counsel and the client to properly set out the relevant facts. Pleadings consist of the following documents.
Statement of Claim or Notice of Application – a lawsuit begins with the preparation of a Statement of Claim or Notice of Application that describes what relief the party suing (the “Plaintiff” or “Applicant”) is asking the court to award against the party being sued (the “Defendant” or “Respondent”) and the facts upon which the claim is based. The Statement of Claim or Notice of Application is issued by the court and assigned a court file number and must be served personally on the Defendant/Respondent.
Statement of Defence – in a lawsuit started by a Statement of Claim, the Defendant has a specified period of time (typically 20 days after the Defendant has been served with the Statement of Claim) to serve their Statement of Defence on the Plaintiff’s lawyer and to file their Statement of Defence with the court. The Statement of Defence contains the Defendant’s response to the Plaintiff’s claim. The Defendant may include a Counterclaim in their Statement of Defence if they have claims against the Plaintiff and a Crossclaim if they have a claim against one or more of their Co-Defendants.
Notice of Appearance and Respondent’s Application Record – in a lawsuit started by a Notice of Application, the Respondent has to forthwith deliver a Notice of Appearance and, thereafter, a Respondent’s Application Record.
The following steps occur in a lawsuit started by way of Statement of Claim.
The success of a Plaintiff’s claim or a Defendant’s defence will often turn on the availability of documentary evidence to support their position. The Rules of Civil Procedure require parties in a lawsuit to exchange Affidavits of Documents which are sworn Affidavits in which parties attest to the fact that they have made a thorough search of their records and have disclosed to the full extent of their knowledge, information and belief all documents relevant to any matter in issue in the lawsuit that are or have been in their possession, control or power.
No litigant should be required to proceed to trial without the benefit of full discovery of documents. If a document is produced for the first time at trial, the trial judge may not allow a party to rely on it or, if the document assists the party’s opponent, the trial judge may adjourn the trial to allow the opponent to consider the document and may award costs of the adjournment against the party attempting to introduce the document. Further, credibility of the party attempting to introduce the document for the first time at trial may be damaged and their chances of succeeding in the litigation may be reduced i.e. when a document is produced for the first time at trial, it may be assumed that the party is attempting to hide something in order to advance their position in the lawsuit.
Examinations for Discovery are a process by which each party’s counsel has an opportunity to question the opposing party under oath about the issues in dispute in the lawsuit. Examinations for Discovery are held at a Court Reporter’s office and the Court Reporter transcribes the questions asked by the lawyer and the answers given by the client verbatim. Examinations for Discovery may be used to obtain admissions, prove one’s own case or to expose weaknesses in the opponent’s case.
An effective Examination for Discovery can be of great importance to the outcome of a case and requires careful preparation and attention to detail by both counsel and client. Many cases settle at or shortly after Examinations for Discovery as parties and their counsel often have a better view of the strengths and weaknesses of their claim and defence.
Motions are typically brought prior to trial when a party requires immediate relief from the court or requires the court to resolve a procedural dispute that has arisen in the litigation. The evidence presented to a court on a motion is typically in the form of an Affidavit which is often supported by other documents called Exhibits. A litigant who swears an Affidavit may be cross-examined on their Affidavit and the transcript of the cross-examination may be relied upon by either party at the hearing of the motion. The lawyers for the parties attend in court to argue the motion and the judge makes a decision on whether or not to grant the motion. Judges typically award the costs of having to bring the motion or having to respond to a motion against the party that loses the motion.
A Pre-Trial Conference is held before trial and is a meeting in court between the parties, their lawyers and a pre-trial judge. The main purpose of the Pre-Trial Conference is to attempt to settle the dispute before trial. Witnesses do not attend to give evidence at the pre-trial. A detailed Pre-Trial Conference Memorandum setting out the basis of your case and the issues to be determined at trial is filed with the court and is read by the pre-trial judge prior to the pre-trial. At the Pre-Trial Conference, the lawyers and their clients answer any questions the pre-trial judge may have. The pre-trial judge typically provides his or her view of the various issues in dispute, the likely outcome of a trial and makes recommendations to the parties on the advisability of settlement. If the case does not settle, the pre-trial judge will define and narrow the issues to be decided by the trial judge and will send the matter on for trial. The Pre-Trial Conference judge does not hear the trial and settlement discussions that occur at the Pre-Trial Conference cannot be revealed to the judge who hears the trial.
The trial is the opportunity for you and your witnesses to give oral evidence in the presence of a judge or a judge and jury and to have your opponent’s evidence challenged through cross-examination. At the end of the trial, a judgment will be awarded that, barring appeal, will be a binding and final resolution of the dispute.
It is the function of counsel at trial to present your case, within the rules of evidence, in the most persuasive manner possible. Trial preparation is critically important and careful consideration must be given to the witnesses to be called and the closing argument to be made to the presiding judge or jury. Proper preparation for the trial is time consuming and requires meticulous attention to the oral evidence to be given by the witnesses and to the presentation of all relevant documents.
Most cases are settled before trial and can occur at any time in the litigation process. Settlement can, in appropriate circumstances, be a more cost-effective and favourable alternative to the risks associated with a trial. Your counsel will guide you on the advisability of making or accepting an offer of settlement based on a consideration of the facts of the case and the risks of proceeding to trial.
The Rules of Civil procedure encourage settlements through the use of formal Offers to Settle. Formal Offers to Settle are written offers served on opposing counsel after receiving instructions from the client.
At the conclusion of a motion or trial, the judge has discretion to order that one party pay some portion of the other party’s legal costs. The successful party will often, but not always, be awarded costs. The court typically awards costs to a successful party on a partial indemnity basis (typically 50% to 66% of a party’s actual costs). Before making an award of costs, the judge will take into account the result obtained and will ask if any Offers to Settle were exchanged prior to the hearing. If a party makes an Offer to Settle and meets or exceeds the terms of the Offer to Settle at the hearing, they are entitled to ask the court to award them substantial indemnity costs (typically 90% to 100% of a party’s actual costs) from the date of the offer to the date of the judgment.
Litigation can be expensive. The very nature of the litigation process makes it difficult to estimate with any accuracy at the outset of a matter what the projected total fees will be. The number of documents, the nature and number of motions, the length of discoveries, number of witnesses and length of trial are all factors that impact significantly on the cost of litigation. Fees are assessed primarily on the basis of the lawyer’s hourly rate but may also take into account the complexity and urgency of a matter and the result obtained.
*Note: John Gray does not do Small Claims Court work, nor does he provide free consultations.