My general experience with clients is that unless they have been through a lawsuit previously, they do not know what the process looks like. Here is a brief outline of what a typical process may look like.
Please note that processes and procedures vary greatly. There may be additional steps required. This post is meant to be informative only, and is not advice on how to handle your case. You should contact a lawyer, or if you must represent yourself, understand the procedure specific to your case.
Step 1: The Incident
Something happens. This may be a wrongful dismissal, a car accident, a breach of contract – something for which a lawsuit is needed.
This is the best time to contact a lawyer – the sooner the better. There may be urgent deadlines. For example, if you slip and fall on ice on city property, you must notify the municipality within 10 days or you may be prevented from making a claim.
Evidence may also be unavailable without prompt action. Witnesses can disappear and most surveillance camera footage is automatically erased after a set period of time (3 days, one week). The scene of the incident may change. Timely preservation of evidence may make the difference between victory and failure.
Step 2: Negotiations Before the Lawsuit
It is often in individual’s best interests to settle a lawsuit before it starts. Armed with evidence and knowledge of the likely legal outcome, lawyers will often discuss and seek settlement of the case before it starts.
If a reasonable settlement can be reached, then there is no need to proceed to the lawsuit.
Step 3: The Claim – Formally Commencing the Lawsuit
To start a lawsuit, one must issue a claim in the appropriate court/tribunal. For most civil cases, this requires issuing a “Statement of Claim” at the Superior Court of Justice.
The Statement of Claim details the incident, and the compensation sought. It will name the Plaintiff(s) (the individuals who are bringing the claim), and the Defendant(s) (those that are claimed against).
Once issued, it must be served on all of the Defendants.
Step 4: Defence
If you have been served with a Statement of Claim, you must typically respond within 20 days, by serving and filing either a Statement of Defence or Notice of Intent to Defend.
The Statement of Defence details what parts of the Statement of Claim are denied. A Notice of Intent to Defend gives you some additional time to file a Statement of Defence.
There are often other documents that may be prudent to file with the Defence, such as a Jury Notice, Counterclaim, Crossclaim, Third Party Claim, etc.
Step 5: Discovery
The next step is the discovery phase.
All parties will provide the other parties with the relevant documents they have in their possession. Then, they will attend Examinations for Discovery.
If you have watched American shows involving lawyers, you may have seen a process they called a “deposition”. In Canada, we call this “Examinations for Discovery”. In this process, each of the parties’ lawyers can ask the other parties questions relevant to the case. This is typically done in a “court reporting office” – which is basically a neutral rented boardroom. A court reporter will be on hand to type out a transcript of the questions and answers.
When it is your time to be examined, a lawyer representing the other side will sit across from you and ask you questions. Your lawyer will sit beside you and make objections to questions where needed.
Step 6: Mediation
Mediation is only mandatory in Toronto, Ottawa and Windsor. For other courthouses, it is an optional but helpful step that parties can agree to go through.
A mediator is hired for the day. Typically, the sides will agree upon an individual to serve as mediator. If one can’t be agreed upon, a mediator can be appointed.
The sides meet, and with the help of the mediator, attempt to come to a resolution of the case.
Step 7: Pre-Trial Conference
Prior to a trial, parties must attend a Pre-Trial Conference with a judge. The judge will not be the one that hears the case.
At a Pre-Trial Conference, the judge may attempt to have the parties settle the case. However, if that cannot be done, the judge will deal with any procedural issues that must be dealt with before the case is ready to go to trial.
Step 8: Trial
If all of the hurdles are passed, then the matter proceeds to trial. It may be a judge-alone trial, or a jury trial. The trial will generally involve opening statements, examination in chief and cross-examination of witnesses, and closing statements.
Step 9: After the Trial
Decisions are often released weeks or months after the case is heard. Unfortunately, there is still a lot to do after the decision.
Parties unhappy with the decision may seek to appeal the case to a higher court.
The judge may ask for additional submissions on legal costs, as in Ontario, the loser will typically pay a portion of the winner’s legal expenses.
There may be the need to go through further proceedings to enforce the judgement, such as seeking judgement debtor examinations or a writ of garnishment.
The legal process is long and drawn out. The process I have described above is measured in years, not months or weeks. It always is important to have realistic expectations on what lies ahead.
Luckily, most cases do not have to make it to the last step to obtain a good result. The Canadian legal system strongly favours settlement well in advance of trial. Negotiations for settlement do occur throughout the entire process.