- Mednick, Mordy
- Industry Alerts
The Litigation Process in Ontario
Suppose you are a business owner and one of your employees commits fraud. Now what? Well, after retaining a lawyer, this is generally how the litigation process works:
- The lawyer will ask you for a narrative of your case and all of the relevant documents you have. Those documents will include all emails, texts, letters, photographs, contracts, invoices, etc.
- The lawyer will then review the information and provide an opinion on the strengths and weaknesses of your case.
- Since you were the defrauded party, you will initiate the action by serving a Statement of Claim. A Statement of Claim, effectively, is a summary of the facts as you see them.
- After you serve the Defendant with the Statement of Claim, the Defendant will serve a Statement of Defence. Similarly, a Statement of Defence is a summary of the facts as the Defendant sees them.
- You will then have an opportunity to reply to the allegations in the Defendant’s Statement of Defence. This is known as a Reply (collectively, the Statement of Claim, Statement of Defence, and Reply are referred to as “Pleadings”).
- After the Pleadings are delivered, Affidavits of Documents are exchanged between the parties. Affidavits of Documents contain all of the relevant documents, whether good or bad, that each party has in its possession.
- The next step is examinations for discoveries. This is when each party’s lawyer has the opportunity to examine the adverse party on the following: the Pleadings, Affidavits of Documents, and any other questions the lawyer may have that are relevant to the case. This is known as information gathering, i.e., you are gathering information so you know what evidence the witness will give if that witness is called to testify at trial. Everything the witness states will be recorded and transcribed.
- After examinations for discovery conclude, the parties will attend mediation. Subject to certain exceptions, mediation is mandatory in Ontario.
- If the matter does not settle at mediation, the plaintiff will file certain documents with the court, known as a Trial Record, to obtain pretrial and trial dates.
- Pretrial is similar to mediation; only instead of trying to settle the case before a mediator, the pretrial is conducted by a judge. The judge’s objective is to settle the action and, if unsuccessful, to make sure that the matter is ready for trial.
- The final step is trial. This is where each party is called to give evidence and testify before a judge (think what you see on TV). The trial judge and the pretrial judge will be different.
- After the trial concludes and a decision is rendered, the losing party will be required to pay the successful party 60 percent of the legal fees that the successful party incurred. The losing party will have 30 days to decide whether it wants to appeal the decision.
In short, litigation is a lengthy and costly process. From beginning to end, a litigation matter can last anywhere from 2 to 5 years, and sometimes longer. The good news is that approximately 95% of cases settle before trial. Parties generally settle because of the time it takes to prosecute the action and the legal fees involved. Typically, settlement will happen at some point after examinations for discovery. This is when all of the evidence has been disclosed in the proceeding, and each party has a better grasp of the strength/weaknesses of its own case.
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