Litigation 101: A Simple Guide to the Legal Process

Litigation can be complex.  Having a basic understanding of the litigation process will allow you to understand what to expect during a lawsuit, and will assist you to make an informed decision on whether litigation is an appropriate step to take in resolving a dispute.  

Cases claiming more than $200,000, are within the jurisdiction of the Ontario Superior Court.  The standard procedure for civil disputes before the Ontario Superior Court are: 

1. Pleadings 

2. Affidavit of Documents (Documentary Discovery)

3. Examinations for Discovery

4. Mandatory Mediation

5. Set the Matter Down for Trial and Pretrial Conference

6. Trial

Pleadings set out a party’s case.  Pleadings provide the framework for litigation and set out the essential facts and the requested relief.  Pleadings outline the issues that the party is asking the Court’s help to resolve.  Pleadings include the Statement of Claim, Statement of Defence and Reply.  If the Defendant wants to advance its own claim, it can bring a Counterclaim.  

The Affidavit of Documents is a list of all relevant documents in a party’s possession which are relevant to the case.  Relevance is determined by the pleadings (which underscores the importance of properly written pleadings).  An Affidavit of Documents should disclose, to the full extent of the party’s knowledge, information and belief all documents relevant to any matter in issue in the action that are or have been in the party’s possession, control or power. 

Examinations for Discovery are essential to the litigation process.  It involves questioning a representative from each party under oath by the opposing party’s lawyer.  A transcript of the questions and answers are made.  The transcript can be used at trial by the questioning party as admissions.  

Mandatory mediation is required in Toronto, Ottawa and Windsor for most civil lawsuits.  A neutral trained mediator conducts a mediation with the parties and their counsel.  The goal of the mediation is resolution of the case without having to go through a trial.  The mediator cannot force the parties the settle, but they are trained to help the parties get to a negotiated agreement. 

Setting the matter down for trial involves completing a trial record and notifying the Court that the case is ready for trial.  The Pre-Trial conference is presided by the Judge who will oversee the trial.  The parties will discuss the strengths and weaknesses of their case, explore settlement options, identify witnesses, and the length of the trial.  The Judge can issue orders to streamline the case and get it ready for trial. 

Trial can be heard by a judge or a jury.  A jury trial should be requested at the beginning of the case.  The basic procedure for a trial starts with opening statements, followed by the plaintiff presenting its evidence through witnesses and documents.  Witnesses can be cross examined.  Portions of the discovery transcript can be used at trial.  The Defendant can then present its evidence through its witnesses, documents, and discovery transcripts.  Following the completion of the evidence by all parties, closing statements are made, in which the counsel refer to the evidence and law to persuade the judge (or jury) to decide in their client’s favour.

Author:

Peter Choe

Head of Litigation

e: peter.choe@realtycarelaw.com