Basic Steps of an Action in Ontario

Initial Pleadings

In an action, a pleading is a court document that states the position and/or intention of a party to a proceeding, as well as the status of the proceeding. The following is a brief description of the initial pleadings to an action.

Statement of Claim

To initiate the litigation process, the party who has been harmed (the "Plaintiff") prepares a statement of claim. The statement of claim is made up of two parts: one which contains a notice to the party who has harmed the Plaintiff (the "Defendant") of the nature of the proceedings and of the consequences of the Defendant failing to defend the action. The second part contains the claim itself.

Where there is insufficient time to prepare a statement of claim before the applicable time limitation expires, the Plaintiff can issue a notice of action within the applicable limitation period. The Plaintiff then has 30 days from the issuance of the notice of action to file a statement of claim.

This statement of claim must then be served personally on the Defendant, except in rare instances where a court can order that service should take place by a different method.

Statement of Defence and Counterclaim

If the Defendant has been served in Ontario, the Defendant is required to serve the Plaintiff with a statement of defence within 20 days of being served with the claim. Those Defendants served in another province or in the United States have 40 days to serve their statements of defence and 60 days for those served outside Canada and the United States. The statement of defence sets out the reasons that the Defendant says he or she should not have to compensate the Plaintiff. It should be noted that any claims of the Plaintiff that are not expressly denied in the statement of defence are deemed to be admitted unless the Defendant pleads that it has no knowledge about the fact. Further, if the Defendant has a claim against the Plaintiff (a "counterclaim"), it is included in the same document as the statement of defence.

If the Defendant cannot serve the statement of defence within the specified time, the Defendant can give the Plaintiff a notice of intent to defend. This notice gives the Defendant 10 extra days to deliver a statement of defence.

If the Defendant does not file a statement of defence within the requisite time frame, the Plaintiff can ask the court to note the Defendant in default and then obtain a default judgment against the Defendant.

Reply and Defence to Counterclaim

Once the Plaintiff receives the statement of defence, the Plaintiff has the option to file a reply to the allegations made in the statement of defence. If the Defendant included a counterclaim, the Plaintiff must serve the Defendant with a defence to the counterclaim within 20 days after service of the statement of defence. Otherwise the Defendant can note the Plaintiff in default and then obtain default judgment against the Plaintiff for the damages described in the counterclaim.

Disclosure

It is a fundamental principle of the Rules of Civil Procedure in Ontario, that parties involved in civil litigation have a duty to disclose all relevant information to one another. This should occur well in advance of any trial taking place. The intent is to avoid any surprises at trial, pin down admissions of fact, and promote earlier settlement of cases.

Court rules therefore provide that parties must agree to, and update on an ongoing basis, a written discovery plan within 60 days of delivery of the reply and defence to counterclaim, if any. The discovery plan sets out the scope of documentary discovery, the names of the people who will be examined and the timelines for completing oral and documentary discovery.

Once the discovery plan is completed, each party is obligated to serve an affidavit of documents on the other party within the timetable established in the plan. An affidavit of documents is supposed to list all documents that are, or were, in the party's possession and that are relevant to any matter in issue in the action. Each party is entitled to examine and receive copies of such documents from the other, except for privileged communications between lawyer and client.

The obligation to disclose relevant documents is ongoing throughout the litigation process. If, after preparing an affidavit of documents, a party comes into possession of a document that is relevant to a matter in issue in the lawsuit or otherwise discovers that the previous affidavit of documents is inaccurate or incomplete, the party must prepare a supplementary affidavit of documents. There are various sanctions and remedies for failure to comply with this requirement of disclosure, but they have to be accessed through a motion made in court.

After all the documents have been exchanged in an action, the parties are entitled to examine each other, under oath, to 'discover' all the evidence the other party intends to rely upon in support of its case. There are time limits as to how much discovery questioning is permitted.

The parties are examined by the opposing party's lawyer in an office setting, in the presence of a court reporter. Their own lawyer sits beside them to monitor the questioning and assist the witness. Questions and answers are recorded and a transcript may later be prepared, which can be used at motions and at trial for certain purposes. When a party being examined during an examination for discovery does not have the information needed to answer a question at that moment or does not have a document that is requested, the party being examined can agree to provide the answer to the question, or the relevant document, after the examination is completed (this is called an "undertaking").

If the person being examined does not provide the answer to the undertaking within a reasonable period of time, the lawyer for the other party can bring a motion to a judge requesting the information. If such an order is made, the party who failed to fulfill their undertaking within a reasonable time may be ordered to pay the costs of the other side for having to bring a motion to compel an answer to the undertaking.

Motions

A motion, in most cases, is considered to be a "proceeding within a proceeding". Its purpose is to determine some issue on a temporary basis while the larger proceeding slowly works its way through the system, or to deal with a dispute over the way one of the parties is conducting itself. A motion is brought before a judge (or a master, in certain locations). It requires serving on the other side a "Notice of Motion" which specifies the relief being sought, supported by one or more affidavits (which may contain various attached documents as "exhibits"). The opposing party may respond with their own affidavit(s). If necessary, the motion may be adjourned to permit cross-examinations on the affidavits, in which case transcripts of the cross-examinations will usually be filed with the court before argument takes place. A ruling on a motion is called an "Order".

Mandatory Mediation

For those actions started in Ottawa, Toronto or Essex County, parties are required to participate in a mediation session within 180 days of the first statement of defence being served.

Prior to mediation, each party must file a mediation brief with the mediator and give a copy to the other party. The mediation brief identifies the disputed factual and legal issues, sets out the party's position on each issue, and includes copies of the most pertinent documents to the matter.

At mediation, parties meet with a neutral mediator who tries to help them resolve the issues in the matter. The mediator cannot force the parties to accept a settlement nor has the power to impose a decision on the parties. Discussions at mediation are confidential, as are any admissions or settlement offers that are made during mediation. If the parties fail to reach a settlement, offers made by a party cannot be referred to during the rest of the litigation process until after a judgment is reached.

If mediation does not help to resolve the matters, the parties may request, or the court may order, a settlement conference.

Set the Matter Down for Trial and Pre-Trial Conference

Once examinations for discovery are completed and undertakings have been fulfilled, the matter will be placed on the trial list by a party who feels that they are ready to proceed to trial. This involves preparing a "trial record" that includes copies of all the pleadings and any relevant pre-trial orders, serving it on all other parties, and filing it with the court. The case is placed at the bottom of the trial list, and gradually works its way to the head of the list as the cases ahead of it are disposed. The list might be anywhere from 6 to 18 months long, depending on the case backlog in the county where the action was commenced.

Under the Simplified Rules (for cases involving less than $100,000), within 180 days after the action is set down for trial, the court will give the parties notice that they must attend at a pre-trial conference. A pre-trial conference is an opportunity for the parties to meet before a judicial officer before trial to obtain his or her views on the various aspects of the case. The judge conducting the pre-trial conference is not permitted to be the same judge who will hear the trial. Each judge has his or her personal style for conducting such meetings. The judge can establish a timetable and fix a date for trial, and, if the date is set, will complete a pre-trial conference report.

At least five days before the pre-trial conference, each party must file a brief setting out the nature of the proceeding, the issues raised and the parties' position on the issues, the names of the witnesses to be called, and the steps that need to be completed before trial.

Trial

A trial is usually the last step in the civil litigation process. The parties each present their evidence by calling witnesses to give oral testimony before the court. At the end of the trial and review of the evidence presented, the judge or jury will make a decision that is binding on the parties. Should a party not be satisfied with the decision made, an appeal may be started depending upon the circumstances which create their dissatisfaction.

Trials are very expensive and time consuming and are therefore not held as often as many people expect. Frequently cases settle at some point before a trial occurs, because enough disclosure has taken place to create a better understanding of their chances of success.