Slideshow 3: Canadian Civil Procedure

Question 1

Canadian Civil Procedure: What it refers to

Answer 1

• Civil Procedure refers to a system of rules
  imposed by the court system to regulate how a
  civil lawsuit will proceed.
• The aim of any system of civil procedure is to
  promote settlement.
• Section 92 of the Constitution Act dictates that
  each provincial government is charged with the
  administration of justice in its province; thus there may be some variation from province to province in the procedure lawsuits follow – consequently the following slides represent a general template.

Question 2

Canadian Civil Procedure: STANDING

Answer 2

STANDING:
* Only those people with “standing” may sue in a
civil action: those people whose rights are more
uniquely affected than others in society may sue.
* Increasingly important in Canadian civil litigation is the concept of a “class action,” where a number of potential plaintiffs pool their claims and sue a common defendant or defendants on a consolidated basis (more efficient for courts and for the costs of litigation).

Question 3

Canadian Civil Procedure: 1. CAUSE OF ACTION

Answer 3

• Have I been wronged in some way recognized by law?
• What is my cause of action? (Do I have a
  legal argument which would entitle me to a
  remedy?)
• Do I have standing?
• Do I still have time to sue? (“Limitation Period”)
• Which court?
  Ontario Superior Court of Justice:
  Simplified Procedure; Small Claims Court?

Question 4

Canadian Civil Procedure: Statement of Claim and Statement of Defence

Answer 4

2. STATEMENT OF CLAIM
   The Plaintiff’s written request for relief/compensation
   together with facts and law on which he or she relies.
3. STATEMENT OF DEFENCE
   The Defendant’s response to the Plaintiff’s case,
   including any differing theory of the case re: facts,
   circumstances or applicable law.
   Together, the Statement of Claim and Statement of
   Defence constitute the “Pleadings”.

Question 5

Canadian Civil Procedure:

Answer 5

4. EXAMINATION

• First the parties must exchange of AFFIDAVITS
  OF DOCUMENTS, which list and provide all
  relevant material documents of each litigant.
• EXAMINATION FOR DISCOVERY is the
  formal interview of the party with his or her legal
  counsel present – a transcript is produced which
  includes every question, answer and word spoken.

Question 6

Canadian Civil Procedure: 5. PRE-TRIAL CONFERENCE

Answer 6

• To settle or narrow issues of law and/or disputes arising
  from pleadings and discovery.
• Held in Judge’s chambers informally after all parties file a Pre-Trial
  Conference Memorandum. A non-binding mediation type setting
  where issues are clarified and settlement options are explored.
  This presiding Judge cannot hear the actual Trial.
• Offers to Settle? Costs penalties will be imposed where a
  party refuses a reasonable settlement offer

Question 7

Canadian Civil Procedure: Trial, Decision of Court, and Appeal

Answer 7

6. TRIAL
   - burden of proof generally on the plaintiff- to prove the case on a balance of probabilities.
7. DECISION OF COURT
   - In Ontario civil cases, usually a judge sitting alone; but there may be civil jury trials.
8. APPEAL
   - A Notice of Appeal must be filed within 30 days of the
   handing down of the trial decision.

Question 8

Canadian Civil Procedure: Time Costs

Answer 8

• While case management systems have
  been installed in Ontario courts, an average
  lawsuit in the Ontario Superior Court of
  Justice (the busiest trial court in Canada –
  especially in Toronto) will generally take
  between 2-5 years to come to trial, from the
  time the action is commenced.

Time = Money!

Question 9

Canadian Civil Procedure: Lawsuit Costs

Answer 9

• A legal dispute leading to a one week Trial in the
  Ontario Superior Court of Justice will very likely
  cost each party at least $50,000 in legal fees and
  disbursements.
• Wasted resources - cost of employees, executives whose time is spent on lawsuit – Expert Witness expenses are huge.
• Loss of personal and corporate relationships.

Question 10

Canadian Civil Procedure: Alternative Dispute Resolution (ADR)

Answer 10

• ADR means the resolution of legal disputes
  outside of the court system.
• Arbitration- an external party chooses between
  the arguments of two sides to a dispute.
• Mediation- an external party facilitates settlement
  between the two disputing parties.
• Advantages of ADR over a full civil trial are:
  speed; cost efficiency; parties can choose their
  own adjudicator; and settled disputes are generally
  thought to be easier for the parties to live with.

Question 11

Canadian Civil Procedure

Answer 11

Answers (or Further Problems?)
* ADR if possible (but is it binding?)
* Avoid Superior Court (but what if $ value is
too high?)
* Liquidated damages clauses (will courts
accept them at face value?)
* Settlements (paying a nuisance cost?)