In Ontario, the litigation process is governed by the Ontario Rules of Civil Procedure and the Courts of Justice Act. Due to the complexities involved in the litigation process, representing yourself may be impossible and you will require an experienced Civil Litigator who has the experience required to properly navigate the Court system.
There are many steps in the litigation process, this includes but is not limited to pleadings, affidavits of documents, discovery examinations, motions, mediation, undertakings, refusals, pretrial, and ultimately, trial. Each and every step involves forms, timelines, and procedures that must be respected without delay if one wants to win their case.
Because court cases take months and even years to resolve, it is virtually impossible to successfully litigate a case on your own. Therefore, to best ensure one wins their case, one should hire a lawyer that specializes in litigation.
Ultimately, the Ontario Litigation process is designed to resolve disputes. This is why most cases settle prior to trial, whether you’re a plaintiff or a defendant. Therefore, one must understand that the job of a litigator is crucial since he possesses the “know-how” to leverage and negotiate the best possible settlement for his client.
Now, the reason why lawyers take a creative “problem-solving” approach very tenaciously at all stages is to be able to resolve all disputes as expeditiously and cost-effectively as possible. Going to trial in front of a judge to hear evidence and to advocate on one’s behalf may be, if not, the most expensive way to resolve your dispute. Therefore, there are alternative dispute resolutions by way of negotiation, mediation or arbitration.
Small Claims Court
As per the Ontario Courts website, the Rules of the Small Claims Court provide for streamlined procedures so that cases can be determined at a lower cost and in less time. Therefore, with 90 sites in the province, the Small Claims Court handles nearly half of all civil claims in the province. Thus, Small Claims Court is readily accessible to all individuals in a cost-effective manner.
As for how to start an action in Small Claims Court, one must file a claim within 2 years of when the incident occurred, as per the Limitations Act. After two years have elapsed, it’s too late to start a lawsuit. Now, to start a claim in Small Claims Court, one must first complete the Plaintiff’s Claim form, being form 7A, explaining in detail the reasons for the claim and details. Such questions may include what happened, where did the incident take place and when. Supporting documents must be attached to the claim as evidence. Furthermore, if there is more than one plaintiff or defendant to the action, you must complete an Additional Parties form being form 1A. Once the form(s) has/have been completed, you must file the claim to the Small Claims Court office. One may do that by taking it to the registry or mailing it to same. Note that you must also file a copy for every defendant to the action as a way of notice.
Subsequently, the next step is to serve the claim upon the defendant(s). Once again, there are rules about how this must be done. Generally, law firms hire someone called a process server to do this task. However, you can serve the documents yourself or have a friend or co-worker do same for you. Please note that for the Plaintiff’s claim, it cannot be served on an individual by way of mail or fax. It must be done in-person.
After having served the documents, you must complete the Affidavit of service, being form 8A, attesting that you swear/affirm that the facts being written in the claim are true. Further, that you swear/affirm that you have served the defendant(s) on such date by one of the following methods as written in the form.
Now, please note that the costs of filing a claim to the Small Claims Court vary from case to case. These fees can be found on the Ontario Attorney General’s website wherein there is a Guide to Fee Schedules for information about fees.
After the claimant has filed and served the documents to the defendant(s), the defendant must decide to dispute the claim. Therefore, they will complete a Defense form with the court, being form 9A and deliver a copy to the plaintiff.
Just like the plaintiff to an action, the defendant must serve the Defense form upon the former and must subsequently complete an Affidavit of Service, being form 8A.These forms must be taken to the court office where the plaintiff originally filed the claim. Once again, timelines are imperative since the defendant must do this within 20 days after having received the claim. Missing the 20 day deadline may result in the defendant being in default.
Once the defendant files these documents, both parties will receive a notice form the court with the time, date and location of a mandatory settlement conference set by the court. At the said conference, a judge will preside with both parties to find an answer to the case. This is an opportunity for every party to tell their story and talk about the evidence they have to support it. In preparing for a settlement conference, both parties must look to fill out a List of Proposed Witnesses, being form 13A, for the trial. Please note that there is an exception for claims under $2,500.00. This form along with the documents used as evidence must be served to the other parties 14 days prior to the settlement conference. If both parties are unable to come to an agreement at the conference, the next step will be to go to trial.
Going to trial becomes a more daunting task as both parties now have to persuade the judge that they are entitled to their case. The plaintiff will plead that the defendant has caused them a loss, and the latter will plead that the loss was not their fault. Generally, at this stage, the judge will make a decision in court after both parties have presented their case evidenced by supporting documents. However, sometimes, the judge may deliver its decision later and sent a copy of the written decision to both parties by way of mail. Now, if you are the plaintiff and you have won the case, you may still need to take further steps to enforce the judgment. Now, the defendant may still attempt to appeal the judge’s decision in divisional court. To win the appeal, the defendant must show how the trial judge erred in its decision.
A common mistake made often by parties in divisional court is that they attempt to plead new/leading evidence in front of the said court in order to plead their argument that the trial judge had erred in its decision. The divisional court will only look at what was said and done at the Small Claims Court. It is imperative that both parties understand that the court will not be ceased with new evidence, even if it were to win their case.
Therefore, it has been evidenced above that there are multiple steps in the small claims court process that makes the said process truly unique. The Rules of the Small Claims Court differ from the Rules of Civil Procedure that streamline the procedures to start a claim in front of the Superior Court of Justice.