Chapter 1: Overview of a Civil Lawsuit

Question 1

List, in the correct order, all the stages of a civil proceeding (lawsuit)

Answer 1

1.Hiring of a lawyer
2. Preliminary investigations & research
3. commencement of proceedings
4. Exchange of pleadings
5.Examinations for discoveries
6. Motions
7. Pre trial conference & trial prep
8.Trial
9. Appeals

Question 2

What are the practical realities of litigation?

Answer 2

It is expensive, stressful, and not guarantee of winning.

Question 3

What are to two ways to commence a civil proceeding?

Answer 3

via action or application

Question 4

Which document(s) could you prepare if wish to commence an action?

Answer 4

Statement of claim
14A (general) or 14B (mortgage actions) or 14D (if notice of claim was filed first)

Question 5

How will you know when to commence a proceeding by application?

Answer 5

generally, When it is unlikely there will be any material facts in dispute.
OR
-estates
-interpretation of an instrument or statute
-Interest in land, trusts
-Injunction or receiver
-charter

Question 6

Once the statement of claim is prepared, what is the next step i.e., what do you do with it next?

Answer 6

take to the local office of Superior court to be issued.

Question 7

How does a Notice of Action assist the lawyer?

Answer 7

It stops limitation period giving an extra 30 days from the date the notice of action is issued to serve and file the statement of claim

Question 8

How long do you have to serve the Statement of Claim once it is issued?

Answer 8

6 months.

Question 9

What are the two methods of serving a Statement of Claim?

Answer 9

-directly to defendant
-to last known address

Question 10

What are the methods of personal service on an individual and a corporation? What Rule did you look at to answer this question?

Answer 10

individual - handed directly (personally deliver) to defendant
corporation - personally deliver to manager or a director or officer of the corporation.

Question 11

What are the alternatives to personal service? Which Rule did you look at to answer this question?

Answer 11

-Accpetance of service by a lawyer
-Service by mail to last known address
-Service to last known address
-Service at place of residence
-deemed service, e-mail.
for more see RULE 16.04

Question 12

Proof of service usually consists of what document?

Answer 12

Affidavit of service. (FORM 16B)

Question 13

Would the Statement of Claim tell the defendant how much time he has
to file his Statement of Defence?

Answer 13

yes.

Question 14

What choices do Fred and Rattle Motors have when served with a Statement of Claim?

Answer 14

File:
Statement of defence
OR
intent to defend
OR
ignore if insolvent
OR
motion to dismiss. if no cause of action or abuse of court process

Question 15

If time is running short and a defendant does not have time to prepare and file his Statement of Defence, what document can he file? How many more days will the defendant then have to file the Statement of Defence? Which Rule tells you this?

Answer 15

Intent to defend (FORM 18B)
-This will give an additional 10 days.

Question 16

What are the two most common types of discovery used in almost every civil proceeding?

Answer 16

Discovery of parties

Discovery of documents

Question 17

explain what happens in discovery of documents?

Answer 17

all parties are expected to cooperate in meeting to discuss extent of discovery and create a discovery plan in writing.
Setting out;
- Scope of discovery
- dates for service of affidavits of docs.
- information on the cost
- timing & mode of production of docs.
- names of persons to be produces on discovery
- and length of time of examinations

Following this: each party is to prepare an affidavit of docs.;
- the identity & nature of EVERY doc. the have or had that might be relevant to the action.

Term “DOCS.” may include:
-digital files
- computer disks
- thumb drives
- audio and video tapes
- photos
- and other media of communication

Parties may claim privilege for certain docs.. it must be listed but does not need to be produced. if used in trial privilege is lost & doc them must be disclosed.

Question 18

Explain what happens in discovery of parties?

Answer 18

Follows Discovery plan.

Each party is entitled up to seven hours to question other parties about
-case
- statement of claim or defence &
- docs. disclosed in Discovery of Docs. process.

Question 19

What is a motion & it’s purpose?

Answer 19

a document to fix any procedure issues

Question 20

What is the purpose/goal of the pre-trial conference?

Answer 20

To settle
verify facts of the case to speed up trial

Question 21

notice of intent to defend (definition)

Answer 21

document that when filed before deadline will extend (by ten days) the time in which you have to issue a statement of defence.

Used when you don’t have enough time to file.

Question 22

general heading (definition)

Answer 22

Heading on all court docs. that identifies the court, the parties, and the status of the parties

Question 23

notice of action (definition)

Answer 23

a document that grants an extra 30 days to file Statement of Claim

Question 24

disbersements (definition)

Answer 24

amounts lawyers pay on behalf of clients to third parties that lawyers can recover from clients

Question 25

originating process (definition)

Answer 25

Doc. that starts a lawsuit. Issuing an action (statement of claim) or application.

Question 26

Statement of defence (definition)

Answer 26

The defendant's reply to a statement of claim

Question 27

True copy (definition)

Answer 27

A copy of original doc. that is like the original in every way. "The original" are usually inside quotation marks on the copy.

Question 28

Retainer (definition)

Answer 28

A contract between a lawyer and a client that sets out a description of the work to be done by the lawyer. & the terms and conditions.

Question 29

Title of proceedings (definition)

Answer 29

part of the general heading that identifies the parties and their status in a lawsuit

Question 30

(definition) Statement of claim

Answer 30

originating process outlines; - remediesA.K.A "claim for relief", - parties - facts of case - law that entitles remedy.

Question 31

Damages (definition)

Answer 31

compensation awarded by the court for harm done

Question 32

Fees (definition)

Answer 32

payment to lawyer for services rendered

Question 33

The purpose of a civil proceeding is to ______________

Answer 33

Compensate the plaintiff

Question 34

A monetary retainer is the same as a written retainer. T or F

Answer 34

FALSE

Question 35

A cause of action is defined as ? - the legal right to sue the plaintiff - the legal right to sue to obtain a legal remedy - the legal right to sue to punish the defendant

Answer 35

the legal right to sue to obtain a legal remedy

Question 36

The term "balance of probabilities" means that the evidence must lead the trier of fact to conclude that it is more probable than not that the facts set out by the client are correct. T or F

Answer 36

True

Question 37

What is the balance of probabilities?

Answer 37

that the evidence must lead the trier of fact to conclude that it is more probable than not that the facts set out by the client are correct.

Question 38

Which of the following is a type of evidence? Documentary Physical Expert All of the above

Answer 38

ALL OF THE ABOVE

Question 39

To determine which court to sue in, the lawyer will consider which of the following: subject matter of the lawsuit the amount of money claimed in the lawsuit the territorial jurisdiction of the court all of the above

Answer 39

ALL OF THE ABOVE

Question 40

A motion is a proceeding within the main action to settle a procedural issue that has arisen and can be brought at any stage of the lawsuit. T or F

Answer 40

TRUE

Question 41

As a general rule, you would commence a legal proceeding by way of application. T or F

Answer 41

F

Question 42

A statement of claim: is an originating process must be issued by the Registrar commences an action all of the above

Answer 42

ALL OF THE ABOVE

Question 43

In Ontario, as a general rule, the limitation period is five years from the time the cause of action arose. T or F

Answer 43

FALSE

Question 44

A statement of claim can be served: - by leaving a copy of the document with the defendant - by having the defendant's lawyer accept service of the document - by leaving a copy of the statement of claim, in a sealed envelope, at the defendant's residence with a person who appears to be an adult member of the defendant's household. - all of the above

Answer 44

ALL OF THE ABOVE

Question 45

An affidavit of service is used to prove that a person was served with a court document. T or F

Answer 45

TRUE

Question 46

In a statement of defence, the defendant will either admit, deny or claim no knowledge of the allegations raised by the plaintiff. T or F

Answer 46

TRUE

Question 47

The purpose of discovery is to: obtain admissions that may be helpful to our client's case assess the strength of the other party's case promote settlement all of the above

Answer 47

ALL OF THE ABOVE

Question 48

An affidavit of documents is a sworn document wherein the party discloses the identity and nature of every relevant document that they now have or had previously. T or F

Answer 48

TRUE

Question 49

The party who brings a motion is called the responding party. T or F

Answer 49

FALSE They are called the moving party.

Question 50

An endorsement appears on the back sheet of a court document. T or F

Answer 50

TRUE

Question 50

Which of the following documents is required to be filed five days before a pre-trial conference is held? the conference brief the pre-trial record the pre-trial conference brief the conference record

Answer 50

the pre-trial conference brief

Question 51

A request to admit is a document in which one party requires the other party to admit the truth of a fact or the authenticity of a document. T or F

Answer 51

TRUE

Question 52

In order for a party to appeal a trial judge's decision: the trial judge must have made an error of law the trial judge must have made an error of fact the trial judge must have made an error of both law and fact the trial judge must have made an error in the amount of damages awarded

Answer 52

the trial judge must have made an error of law

Question 53

A practice direction: must be read in conjunction with the Rules of Civil Procedure allows a senior judge to customize the Rules of Civil Procedure can be updated and modified all of the above

Answer 53

all of the above