is governed by rules of procedure which make most lawsuits exactly
the same as the others from a procedural perspective. However,
given the delays inherent in the system and the tactical maneuvering,
it becomes quite easy for clients to lose sight of the fact that all
lawsuits have essentially three stages:
Every lawsuit starts with pleadings. The opening pleading is
the Statement of Claim. In this document, the plaintiff outlines
his/her/its case against the defendants. Its function is to establish
the basic outline of the dispute and the bases on which the claim is
founded. It is not designed to fully establish the plaintiff’s
evidence, but merely establishes the major facts on which the plaintiff
The defendant responds to the plaintiff’s allegations with a
Statement of Defence. Again, this document sets out the defendant’s
general position in the litigation, the major facts on which the defendant
relies for those positions and any technical defences (such as limitation
periods) which must be pleaded according to the court rules.
The pleadings set out the basic framework on which the lawsuit will
be developed. All facts will be marshalled to enhance or defeat
an issue set out in the pleadings. Whether evidence will be
properly before the court will be determine by its relevance to the
pleadings. As a result, it is quite common to see litigation “front
end loaded” with a significant amount of time spent on researching
the law and drafting the pleadings to ensure that a party puts its
best position forward. In some instances, this work at the preliminary
stage can permit a party to obtain summary judgment – usually
for the dismissal of the lawsuit – and avoid the need to proceed
with discovery or a trial.
When all of the pleadings have been exchanged, the parties are then
obligated to exchange lists of the documents in their possession. Each
party must swear an affidavit indicating that all documents related
to the litigation have been located or, if they are missing, explaining
why they cannot be located. Those documents in each party’s
possession must either be produced to the other side upon request
or else an explanation must be provided as to why they will not be
produced. The most common reason for not producing documents
is because they are protected by privilege between yourself and our
office or other counsel.
Until fairly recently, each lawyer would collect and sort the documents
provided by the client. Following the completion of the list
of documents to be produced, each law firm would then make many photocopies
of the documents and deliver the copies to the other party’s
lawyers. The costs for photocopying and for storage in complex
lawsuits often proved exorbitant. It is now common for large
law firms and more sophisticated smaller firms to take the clients’ documents,
have the documents scanned electronically, and produce the documents
on a single CD-ROM or DVD-ROM. Our office follows this practice.
The exchange of lists of documents and copies of the documents is known
as “documentary discovery”.
Following the exchange of documentation, examinations for discovery
will be arranged. These are verbal examinations made under oath. Questions
are asked of each party or each party’s representative (for example,
where a party is a company). These examinations are not conducted
before a judge, but rather before a stenographic reporter. The
object of these examinations is to obtain admissions to be used against
the party being examined at trial and to obtain information about the
examined party’s case.
Often at examinations for discoveries, the person being examined does
not have the information requested available. As such, “undertakings” to
provide that information are given. The amount of time for examinations
for discovery will be comprised of not only the original examination,
but also any time necessary to provide answers to the undertakings. As
well, if the answers raise other questions, the party being examined
may be required to re-attend at a continuation of the examination to
answer those new questions.
When the discovery process is completed, the action is listed for trial. There
is often a delay between the time that the litigation is set down for
trial and the actual trial date. For example, if the trial is
scheduled to take longer than two weeks in Toronto, the delay could
be up to three years. Eventually, you will be notified that
your case is ready for trial. In Toronto, a precise starting
date for the trial can be provided. For other parts of the province,
they operate under a “week of” system in which a trial
is likely to start sometime in a particular week – although it
is not uncommon for the trial to be delayed to the following week or
later. In those instances, all parties are “on call” until
the trial commences.
As a very general rule of thumb, very simple actions will be heard
at trial within one year of the litigation commencing. However,
on average, it takes between two and three years between the time the
litigation commences and the date of trial.
Before the trial is heard, the parties will attend a pre-trial conference
at which a Judge will determine whether the litigation can be settled
or if it will proceed to trial. While some judges will give their
opinion on the merits of each side’s case, other judges will
focus only upon the possibility of a settlement and if the possibility
is slim they will send the matter on to trial.
Only a few cases actually reach a trial. Trials are expensive,
slow and often inefficient and most litigation settles prior to trial.
Settlement negotiations usually occur at the following stages of the
litigation (although they can occur at any time):
||• following the demand letter or the commencement
of the litigation;
||• following examinations for discovery; and
||• when the case is being prepared for trial.
In addition, some parts of the province (for example,
Ottawa and Toronto) have instituted “mandatory mediation” which
requires the parties to attend a mediation session after pleadings
are closed but before the trial commences.
Given the expense and delay of litigation, it is preferable to settle – on
terms that are acceptable to you. As such, it is important that
you set a specific goal for the litigation at an early date. If
you can attain your goal through settlement, you will be advised to
consider that solution. If this is a case that should be settled,
it is better to settle it at any early stage rather than just before
the trial commences, when both sides have run up time and expense. Our
experience has been that one party will try to “high ball” the
other party who, in turn, will try to “low ball” the settlement
terms. The usual result is an amount roughly in the middle of
those two initial settlement offers. As such, you should consider
your goal with that reality in mind.
The court rules in Ontario permit any party to serve an offer to settle
on the other parties. If a plaintiff serves an offer and receives
a judgment for as much as that offer or more, then the plaintiff will
receive costs at a higher level for those costs incurred after
the date of the offer. If the defendant serves an offer and the
plaintiff receives as much as that offer or less, then the plaintiff
must pay the defendant’s costs at a higher level from
the date when the defendant made its offer. This puts pressure
on the parties to seriously consider all formal offers to settle. We
will discuss offers to settle and their ramifications in more detail
if we decide to serve an offer or if our office receives an offer to
settle from the other parties.
Throughout the litigation process, our goal is to provide
you with efficient, effective and affordable representation. We
look forward to assisting you to resolve your disputes in a manner
that meets your needs for the litigation itself, but also your short-
and long-term business needs.