Dispute Resolution Explained
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Pleadings (Statements of Claim and Defences
Pleadings (Statements of Claim and Defences
Deadlines for initiating legal actions are governed by provincial laws, with some exceptions for federal matters. If a party fails to start legal proceedings within the specified limitation period, they may lose the right to make their claim.
Limitation periods differ across provinces and can vary within each province based on
Deadlines for initiating legal actions are governed by provincial laws, with some exceptions for federal matters. If a party fails to start legal proceedings within the specified limitation period, they may lose the right to make their claim.
Limitation periods differ across provinces and can vary within each province based on the type of action. For instance, Alberta, British Columbia, and Ontario generally have a two-year limitation period for most civil actions. However, in certain cases, the period is shorter. In British Columbia, for example, the limitation period to notify a municipal body of a claim is only two months for specific claims.
Besides statutory limitation periods, common law doctrines like laches and acquiescence allow courts to dismiss a claim if the plaintiff does not act within a reasonable time.
It is advisable for individuals with potential claims to seek legal advice promptly to avoid missing the limitation period and being barred from pursuing their action.
Pleadings (Statements of Claim and Defences
Pleadings (Statements of Claim and Defences
Pleadings (Statements of Claim and Defences
In Canadian civil actions, the pleadings submitted by the disputing parties outline the nature and scope of the issues the court will address. Pleadings are succinct statements of the facts that each party must demonstrate to support their position. The plaintiff must present all facts necessary to establish a valid cause of action again
In Canadian civil actions, the pleadings submitted by the disputing parties outline the nature and scope of the issues the court will address. Pleadings are succinct statements of the facts that each party must demonstrate to support their position. The plaintiff must present all facts necessary to establish a valid cause of action against each defendant, while each defendant must present all facts necessary to counter that cause of action. These pleadings serve to identify the facts and issues that will be pertinent during the trial.
To initiate a civil action, an originating document must be filed with the court and served on the opposing party. The specific form required is outlined in the Rules of Court for each common law province (i.e. not Quebec). In most provinces, a civil action begins with a Statement of Claim , detailing the claim and the relief sought.
In New Brunswick and Ontario, a more basic document called a Notice of Action is allowed. This document provides a general notice of the claim. According to the Rules of Court, a Statement of Claim is either attached to the originating document or filed and served at a later time.
Once a defendant is served with a Statement of Claim, they have a specified number of days to submit a formal legal response, typically called a Statement of Defence. If the defendant fails to serve the Statement of Defence on the plaintiff and file it with the court within the given timeframe, the plaintiff may request a default judgment against the defendant without further notice.
If the defendant seeks relief from the plaintiff, they can file a counterclaim. Additionally, the defendant can make claims against other defendants through a cross-claim or involve other parties in the action via a third-party claim.
Oral and Written Discovery
Pleadings (Statements of Claim and Defences
Oral and Written Discovery
I believe in taking a client-focused approach to each case, ensuring that my clients are informed and involved throughout the legal process. I am always available to answer questions and provide guidance, and I work tirelessly to achieve the best possible outcome for each client.
Particulars
The Rules of Court in common law provinces outli
I believe in taking a client-focused approach to each case, ensuring that my clients are informed and involved throughout the legal process. I am always available to answer questions and provide guidance, and I work tirelessly to achieve the best possible outcome for each client.
Particulars
The Rules of Court in common law provinces outline the requirements for pleadings in a legal proceeding. If a pleading lacks the necessary information for the case or is too vague or general, a party can request “particulars” to obtain a more detailed explanation of the facts or legal issues involved. If the opposing party does not provide these particulars within a specified timeframe, a motion can be filed to ask the court to order their delivery.
Discovery of Documents
After exchanging pleadings, parties in common law provinces must share a list of all documents in their possession, power, or control that are relevant to the issues raised, excluding privileged documents. In some provinces, this list is accompanied by an affidavit of documents sworn by a party representative.
In Canada, “documents” encompass paper documents, emails, computer files, tape recordings, videos, and electronic media. The term “relevance” is also broadly defined.
The opposing party is entitled to receive copies of all non-privileged documents listed. Privileged documents, typically created for legal advice (solicitor-client privilege) or in anticipation of litigation, are exempt. Solicitor-client privilege protects confidential communications for legal advice unless waived by the client. This privilege covers all forms of communication but does not extend to discoverable and relevant facts mentioned within them. Privileged documents must be separately listed.
If a third party holds relevant documents, any party can seek a court order for their production, with privileged materials exempt.
Generally, evidence or information obtained through documentary discovery and oral questioning cannot be used for purposes other than the court proceeding for which it was obtained, with limited exceptions.
Examination for Discovery
After exchanging relevant documents, parties are entitled to conduct an examination for discovery of the opposing party, sometimes referred to as “questioning” in provinces like Alberta. Each province has its own rules regarding the availability and scope of these examinations. For instance, in Ontario, there is no automatic right to examine more than one representative of a corporate litigant or to examine non-parties without court permission.
A discovery witness representing a corporate litigant must be knowledgeable about the corporation’s information. If the witness cannot answer a specific question, they may need to make inquiries and provide the answer later in writing. In complex cases, numerous requests for information and documents are common.
Except for privileged information, the person being examined must answer all questions during the examination for discovery. These answers are given under oath or affirmation in the presence of a court reporter, typically in an office setting, without a judge present. The questioning party may use the examination transcript at trial.
Before serving a notice of examination, a party must have delivered its list of documents for discovery unless otherwise agreed. Examinations for discovery can be lengthy and costly, often leading to settlements at this stage. Some provinces, like Ontario, Quebec, and British Columbia, limit the duration of these examinations, though this period can be extended by consent or court order.
Case Management and Pre-Trial Conferences
Many provinces, including Ontario and British Columbia, have implemented special rules to manage the litigation process, such as case management. These procedures vary by jurisdiction and often include new, shorter deadlines for various steps in a proceeding. Case-managed proceedings typically follow a timetable set by either the parties’ agreement or a judicial officer’s order. Additionally, many jurisdictions require mediation attempts before going to trial. Consequently, most civil and commercial cases in Canada are settled well before reaching trial.
Regardless of whether an action is under case management, if it doesn’t settle early and the trial date approaches, the case will likely go before a judicial officer or a judge (other than the trial judge) for a pre-trial conference. This conference, which can be ordered by the court or requested by a party, aims to explore settlement possibilities, simplify trial issues, determine the trial’s timing and length, and generally assist in resolving the proceeding.
Dispute Resolution Explained
Cost payable to you or another litigant
Cost payable to you or another litigant
Cost payable to you or another litigant
In Canada, it is typical for the winning party in litigation to recover some of the expenses from the losing party. These expenses can include lawyers’ fees and necessary costs like expert reports and travel expenses related to the litigation process.
Courts generally follow these principles when awarding costs: (1) costs usually go from
In Canada, it is typical for the winning party in litigation to recover some of the expenses from the losing party. These expenses can include lawyers’ fees and necessary costs like expert reports and travel expenses related to the litigation process.
Courts generally follow these principles when awarding costs: (1) costs usually go from the losing party to the winning party, (2) except in rare cases, a party is not fully reimbursed for litigation costs, (3) costs are used to encourage settlement and compromise, and (4) costs are used to penalize parties for inefficient or wasteful use of court and party resources.
Each province’s courts have guidelines for determining the amount of costs to be paid. For instance, Alberta uses a predetermined schedule with a sliding scale for “party-party” costs, typically resulting in less than full reimbursement. Ontario employs a tariff system with hourly rates based on the lawyer’s experience.
In certain situations, the court may award higher costs to penalize unfounded serious allegations, like fraud or conspiracy, or to sanction unreasonable behavior. Most provinces encourage settlements by imposing cost consequences for not accepting reasonable offers and awarding higher costs if a settlement offer is unreasonably rejected.
When disputes arise over the quantification of costs, including the reasonableness of claimed disbursements, most provinces have a special dispute resolution mechanism. Parties may appear before a court-appointed officer to assess the costs.
Typically, costs are payable after the conclusion of a trial or court application. However, the court has the discretion to order that costs related to interlocutory motions be paid immediately, regardless of the final outcome of the litigation.
Once costs are awarded, the successful party is entitled to payment. However, like any monetary award from the court, the successful party may need to use civil enforcement mechanisms to collect the payment.
The Trial Process
Cost payable to you or another litigant
Cost payable to you or another litigant
In Canadian civil actions, the pleadings submitted by the disputing parties outline the nature and scope of the issues the court will address. Pleadings are succinct statements of the facts that each party must demonstrate to support their position. The plaintiff must present all facts necessary to establish a valid cause of action again
In Canadian civil actions, the pleadings submitted by the disputing parties outline the nature and scope of the issues the court will address. Pleadings are succinct statements of the facts that each party must demonstrate to support their position. The plaintiff must present all facts necessary to establish a valid cause of action against each defendant, while each defendant must present all facts necessary to counter that cause of action. These pleadings serve to identify the facts and issues that will be pertinent during the trial.
To initiate a civil action, an originating document must be filed with the court and served on the opposing party. The specific form required is outlined in the Rules of Court for each common law province (i.e. not Quebec). In most provinces, a civil action begins with a Statement of Claim , detailing the claim and the relief sought.
In New Brunswick and Ontario, a more basic document called a Notice of Action is allowed. This document provides a general notice of the claim. According to the Rules of Court, a Statement of Claim is either attached to the originating document or filed and served at a later time.
Once a defendant is served with a Statement of Claim, they have a specified number of days to submit a formal legal response, typically called a Statement of Defence. If the defendant fails to serve the Statement of Defence on the plaintiff and file it with the court within the given timeframe, the plaintiff may request a default judgment against the defendant without further notice.
If the defendant seeks relief from the plaintiff, they can file a counterclaim. Additionally, the defendant can make claims against other defendants through a cross-claim or involve other parties in the action via a third-party claim.
As in many other common law jurisdictions, fewer than 5 to 10% of lawsuits go to trial, with most being settled or resolved earlier in the process.
Case management processes in many provinces aim to ensure cases progress through litigation and reach trial within two to three years of filing. Complex cases may take longer, while urgent cases can be expedited.
In most commercial cases, pre-trial procedures, including discovery, continue up to the trial. Expert reports and responses must be submitted 60 to 90 days before trial for expert testimony to be allowed. Pre-trial notices are also needed for certain documentary evidence to be admitted without full formal proof. Notices to Admit, which require the opposing party to admit certain facts, are commonly used to narrow issues and increase cost risks for non-admission of uncontested facts. Supplementary examinations for discovery and document exchanges often occur shortly before the trial.
In most provinces, any party can request a jury trial by delivering a jury notice, though juries are not available for certain cases. Jury trials are rare in civil matters but occasionally used in personal injury and defamation cases. Courts can strike out a jury notice and require a judge trial based on case complexity or local prejudice.
Opening Statements
The Plaintiff makes an opening statement at the trial’s start. Judges usually prefer the defendant’s counsel to also present an opening statement before evidence is called, to clearly outline the issues from all perspectives. In complex cases, opening statements can last hours or days, introducing the judge to key documents and materials prepared by counsel, such as event chronologies, character lists, technical glossaries, or summaries of agreed facts.
Examination of Witnesses
During direct examination, counsel cannot ask leading questions, except on non-contentious matters. Witnesses, unless experts, may only testify to matters within their direct knowledge. “Hearsay” evidence is generally inadmissible unless it falls within a recognized exception or is deemed “necessary and reliable.”
Lawyers can subpoena and cross-examine employees, directors, or officers of the opposing party but are often prohibited from interviewing them beforehand. During cross-examination, witnesses cannot discuss the case with their lawyer or anyone else. Witnesses may be declared “adverse” if their answers conflict with prior out-of-court statements. The trial judge will consider various factors before making a declaration of adversity.
Expert Wintesses
Expert evidence can be presented at trial when it is necessary and relevant, and when specialized opinion or technical assistance will aid the court in administering justice between the parties.
The expert might need to provide their entire file, including earlier drafts of their report. Depending on the jurisdiction, this file must be produced either before or during the trial.
Use of Examinations for Discovery
Transcripts from examinations for discovery are not considered evidence at trial unless they are read into the record by the examining party or used to challenge an opposing witness with a contradictory statement from their examination for discovery. A party can qualify or contradict evidence read into the record from the opposing party’s examination by referring to other evidence presented in court.
To be fair to a witness, any prior inconsistent statement they allegedly made must generally be presented to them during their testimony, giving them a chance to explain the contradiction. This applies whether the prior statement was made during an examination for discovery or in another context.
Use of Documents
In most civil cases, unless there is a dispute over the authenticity of specific documents, the admission of documents into evidence is generally handled cooperatively. The parties typically prepare one or more joint document briefs for the court. Relevant documents are usually qualified for admission through pre-trial discovery procedures and, if needed, through pre-trial document notices exchanged before trial. If the authenticity of a document is challenged, it is addressed like any other contentious fact during the trial.
Mediation
Cost payable to you or another litigant
Mediation
Mediation is a dispute resolution method where two or more parties meet with an impartial mediator to try to reach a settlement. The mediator cannot issue orders or compel the parties to settle; their role is to assist in reaching an agreement.
Before mediation, parties typically exchange summaries of their positions and relevant document
Mediation is a dispute resolution method where two or more parties meet with an impartial mediator to try to reach a settlement. The mediator cannot issue orders or compel the parties to settle; their role is to assist in reaching an agreement.
Before mediation, parties typically exchange summaries of their positions and relevant documents. At the mediation’s start, each party can make an opening statement, followed by discussions. The mediator often separates the parties to speak privately and help facilitate a resolution, presenting settlement offers and explaining their rationale.
Mediation can occur before or during adversarial proceedings like court actions or arbitrations.
Benefits and Drawbacks of Mediation
Benefits of Mediation:
- It is usually quick, often completed in less than a day.
- It is less costly and formal than trials or arbitration hearings.
- It is confidential, with information revealed being legally privileged and not usable in litigation or arbitration.
- Parties have control over selecting the mediator and setting the mediation procedure, and can choose non-lawyers or experts in the dispute area.
- Parties can create business solutions not available in court.
- Mediated settlements can sometimes preserve business relationships.
- Information disclosed can help parties assess the strength of their positions.
Drawbacks of Mediation:
- If mediation fails, time and money may be spent without achieving a settlement. However, partial settlements or narrowed issues can still be beneficial.
- Power imbalances or financial constraints can affect fairness.
- Extensive pre-hearing discovery might be necessary for some cases, making early mediation less suitable.
- Mediation may not be appropriate for cases needing a legal precedent or binding legal interpretation.
- If a party is not genuinely interested in resolving the matter, mediation is likely ineffective.