The technical term for most lawsuits in Ontario is a “civil action”. It’s where someone is suing someone else, usually for money or property. Some lawsuits follow a separate process known as a “civil application” discussed at this link.
The steps in a civil action are discussed below, with links to resources on each step. In a nutshell, they are summarised as follows:
Before you begin a lawsuit, you might want to take a look at our litigation book called Civil Litigation D.I.Y.
Pleadings – the plaintiff sets out its claim for money and version of the facts in a statement of claim. The defendant sets out its version of the facts in a statement of defence. The plaintiff may reply to new issues raised in the defence.
Here are some resources to assist with pleadings:
- How to draft a statement of claim
- How to draft a statement of defence
- How draft a reply
- Pleadings forms and precedents
Discovery – after pleadings are complete, the parties must exchange all documents relevant to any issue in an affidavit of documents. This is known as documentary discovery. As well, parties get to question each other under oath prior to trial at examinations for discovery. This is known as oral discovery. After examinations for discovery, there are commonly undertakings, advisements and refusals to follow up on. You can click here to purchase discovery-related Court forms. Here’s an article on witness preparation.
Motions – motions can arise at any time to deal with any issue, including repairing pleadings, discovery issues, urgent issues to preserve property and summary judgment. Our motion forms are available here. An article on motions for removal of a lawyer from the record are here. An article on motions for a non-lawyer to represent a company is here.
Mediation – Mediation and/or a negotiated settlement can occur at any stage. It is common practice to have mediation after discoveries, but sometimes before discoveries. Mediation is an opportunity to have forthright discussions about the merits of the case. Mediation is usually voluntary. In Toronto, Ottawa and Windsor actions, mediation is mandatory. You can purchase a template mediation brief here, as well as template rule 49 offers, minutes of settlement and full and final releases here.
Set Down For Trial – Cases are set down for trial by serving and filing a trial record, which is discussed in an article here.
Trial Scheduling Court – many jurisdictions are moving towards having a Court appearance to book pre-trial and trial dates. This is known as Trial Scheduling Court, Assignment Court or in Toronto To Be Spoken To Court.
Pre-Trial Conference – a pre-trial conference is held before a Judge in order to canvass settlement, determine readiness for trial, discuss trial issues, identify the witnesses, determine trial procedure and set trial dates. We created a pre-trial conference checklist to help you get ready, as well as a top 10 tips for pre-trial conferences.
Trial Preparation – for every day of trial, there may be 2 – 5 days of preparation, depending on the complexity of the case. A good rule of thumb is 3 days of trial preparation for each day of trial.
Trial preparation resources:
- Trial book HOW TO WINg A TRIAL (Part II is dedicated to trial prep)
- Ontario Civil Trial Manual
- Ontario Civil Trial Checklist
- Trial forms and precedents
Trial – at trial, the parties get to present their version of the facts through witness testimony and exhibits. There is an opportunity to cross-examine the other party’s witnesses. The law of evidence governs whether the Court will accept the evidence and for what purpose. Factual submissions are made in opening statements and legal submissions are presented in closing argument. Where trial is a possibility, you may want to consider taking a look at trial book HOW TO WINg A TRIAL (part III is dedicated to conducting trials).
Judgment – the successful party is awarded a judgment. If the plaintiff is awarded a sum of money, it is their responsibility to collect it. The successful party is usually awarded costs, but this does not mean the other side will pay all of their legal fees.
Rules of Civil Procedure: http://canlii.ca/t/549vx
Commentary on the Rules: https://www.canlii.org/en/commentary/66972/
Practice Directions (province-wide and regional): https://www.ontariocourts.ca/scj/practice/ (take note of any notices and orders relating to covid-19 that affect the practice directions)
Courts of Justice Act: https://www.ontario.ca/laws/statute/90c43
Superior Court Fees: https://www.ontario.ca/laws/regulation/920293
Superior Court Forms: https://ontariocourtforms.on.ca/en/rules-of-civil-procedure-forms/
Resources by a trial lawyer, available online:
If you would like legal advice from an experienced trial lawyer:
This website and all resources are trial information, not trial legal advice.
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