Civil Litigation

If an individual or business believes that another individual or business owes them money or property, they can sue that individual or business. The procedure of civil lawsuits is set out in the Ontario Courts of Justice Act and its regulations, particularly the Rules of Civil Procedure (“Rules”). A civil proceeding is commenced by submitting to the Superior Court of Justice for issuing of an originating process, either an action or application. The default originating process is an action but the Rules specify that an application is to be used in certain listed circumstances.

The Superior Court of Justice has a number of specialized divisions: the Divisional Court, which hears certain appeals; the Estates List, which covers civil lawsuits concerning estate matters; the Commercial List, which adjudicates civil lawsuits concerning certain commercial matters; the Family Court, which specializes in family matters; and the Small Claims Court, which has jurisdiction over civil claims whose value is below a certain prescribed amount (currently $35,000). Each Division has its own distinctive procedural rules.

An action is commenced by issuance of a statement of claim unless another means of commencement is provided by the Rules. The statement of claim sets out the relief claimed and the material facts being relief upon in support of the claim. The trial of an action is heard by either a judge alone or by both a judge and jury. Trial evidence can include oral and documentary evidence.

An application is commenced by issuance of a notice of application. The notice of application sets out the date, place and time for the hearing, the court in which the application is being argued, the grounds for the application and the evidence that the applicant intends to rely upon. An application hearing is heard by a judge alone. The evidence for an application can include affidavit and documentary evidence.

The person who brings an action is called the plaintiff while the person being sued is called the defendant. The person who brings an application is called the applicant and the party against whom it is brought is called the respondent.

There are special rules for the commencement of civil proceedings by a person with a legal disability (such as minority or mental incapacity), by a business (such as a partnership or a corporation) or by an estate trustee.

The filing of an originating process involves completing the appropriate process, arranging for it to be issued by the court, paying the prescribed filing fee, serving the issued process on all of the parties who are required to be served, completing affidavits of service for all parties who were served, and filing the affidavits of service.

When served with a statement of claim, the defendant has the option of disputing the plaintiff’s claim by completing, serving and filing a defence, in a form called the statement of defence. In the statement of defence, the defendant must specify the paragraphs in the statement of claim that the defendant agrees with, disagrees with and has no knowledge of, and can present a different version of the facts. The deadline to serve and file a statement of defence depends on where the defendant was served: if in Ontario, in 20 days; if outside Ontario but within Canada, 40 days; or if outside Canada, 60 days. The filing of a statement of defence involves: drafting the statement of defence, serving all of the parties who are required to be served, drafting affidavits of service for all of the parties who were served, paying the prescribed filing fee and filing the statement of defence and the affidavits of service.

In the vast majority of cases, a civil case can take several months or even years to be resolved. Although, there are a few situations in which a case can be disposed relatively quickly. If the defendant does not file a defence to an action, the plaintiff can request the court to note the defendant in default and move for default judgment. If a party can provide no or insufficient evidence to support the claim in their statement of claim or defence, the other party can bring a motion for summary judgment.

Subsidiary claims include a counterclaim (a claim by a defendant against the plaintiff and possibly against another person), a crossclaim (a claim by a defendant against another defendant) and a third party claim (a claim by a defendant against a stranger to the litigation).

A number of events take place before a hearing of an application or trial of an action.

A motion is a subsidiary step that a party may take in order to obtain temporary relief. In most cases, motions are contested; however, it is possible for them to be on consent.

Discovery is the process by which parties may obtain evidence relevant to the claim(s) at issue from adverse parties. Documentary discovery involves the parties exchanging an affidavit of documents, which lists all of the documents in the party’s possession or control that are relevant to the matters in issue and to which is attached copies of those documents. Oral discovery is where the parties attend an examination for discovery wherein each party may ask the other questions about matters in issue. A party can read into evidence at trial those of the adverse party’s answers that are admissible.

At a certain point, a party can set down an action for trial. A pretrial conference at court is mandatory to provide an opportunity for settlement and obtain orders or directions to assist in the just, most expeditious and least expensive disposition of the proceeding.

At a trial or application, the parties are given an opportunity to tell their side of the story by presenting relevant evidence. At the end, the judge determines what the applicable “law” is. The trier of fact then determines the “facts” and applies the law to the facts to reach a final decision.

If a party is dissatisfied with a final order or judgment, they may have an option of launching an appeal.

If a party becomes delinquent in following the payment terms of a final order, the other party has a number of enforcement options such as pursuing an examination, garnishment or writ of seizure and sale.

Azimi Law can assist a party in many ways with their civil matter including: developing a theory of the case; helping gather and marshal material evidence; determining the correct forum; determining whether the claims at issue are within the limitation period; ensuring completeness of documents (incorrectly drafted documents may be rejected for filing by court staff); arranging for effective service of documents; advocating for the party’s interests in alternate dispute resolution processes and court; and giving the party legal advice to guide them through the legal process.

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