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Welcome everyone this is Amer Mushtaq from YouCounsel.  

Today we will talk about Civil Actions in Ontario.  These are court actions that you commence in the Superior Court of Justice in Ontario.  We will talk about 6 basic steps that are commonly taken in the proceedings of these civil actions.  The lecture is really designed for people who have no legal background—so they can understand the fundamental steps in a civil action in Ontario.  As always we will commence with a disclaimer that this course is not legal advice.  If you have any specific questions about your issues, you must contact a lawyer or a paralegal.

Civil actions in Ontario are governed by specific legislation.  There are two legislations that you want to keep in mind—those are your starting point.  If you are going to research the procedure for a civil action in Ontario the larger legislation is the Courts of Justice Act and underneath that are the Rules of Civil Procedure.  These are regulations under the Court of Justice Act.  Both these legislations are available online.  You can go on Google and type in Rules of Civil Procedure.  CanLii is one website but they’re also available on the government website and you can check those out. I want to show you a few things about the Rules of Civil Procedure so you can understand the layout a bit better.  Let’s scroll down to the Table of Content.  You will notice that there are a total of 77 Rules.  Each Rule has a number of sections.  There are a lot of sections.  In other words, there are a lot of Rules that you need to keep in mind depending upon the circumstances of your court action.  The way these Rules are laid out: they are in different parts or you may call them chapters and they start from: General Matters; Parties and Joinder; Commencement of Proceeding so on and so forth. What I want you to pay attention at this stage is that unfortunately the Rules are not laid out in a way that a person who is not a lawyer or a paralegal can easily decipher.  What I mean by this, is that if you want to understand what is the process, what are the steps to commence a court action, it doesn’t lay out the Rules in that manner.  You don’t see here Chapter 1: Commencement of court action and then you have to take the following steps. It is laid out in somewhat of a sequential manner but not necessarily for people with no legal background in mind.  What I’ve done in this lecture is to summarize some of the Rules, taken them out of their sequence in the Rules and then will explain to you the process.  Each section, each step that I’ll be talking about it may be referring to a different chapter but the overall concept is that you have an overview of how these court actions are commenced and how these court actions are concluded in a civil action in Ontario.

Let’s begin with the 6 Steps.  Step 1: is obviously Pleadings; I’ll explain what that is.  Step 2: is Affidavit of Documents; Step 3: is Discovery process; Step 4: is Mediation; Step 5: is the Pretrial—and the last and the final—Step 6: is the Trial.

Step1:  What are Pleadings?  Pleadings are the documents in which each party lays out their version of facts about the issue.  A party that commences a court action, will start their court action by filing and serving a document which is called a Statement of Claim.  A statement of claim essentially is, if you are the claimant, if you are the plaintiff, if you are the party who is commencing this court action.  Statement of Claim has 2 components.  1^st component: What is it that you are asking the court to do for you? Are you asking for money? Are you asking for return of property? What is it that you want the court to do?  The 2^nd component: is what are the facts that you are relying on? What is your story? Why the court should give you what you’re asking? Those two elements are the fundamental elements of a Statement of Claim: what is it you’re asking and why are you asking this; what is your story. In response the defendant will serve and file what’s called a Statement of Defence and this Statement of Defence will contain the defendant’s story: what they are asking the court to do?  Are they asking the court to dismiss the plaintiff’s claim; to throw it out; to reject it and what is their version of the story; why do they believe that the court should not award the plaintiff (the claimant) what he or she is asking for.  There are different kinds of pleadings. In some circumstances the plaintiff may again file a Reply to the Statement of Defence.  There are specific circumstances in which your Reply can be filed and must be filed.  When we get to each element of the pleadings in different lectures I will explain to you when a Reply is served and filed.  Pleadings are also counterclaims.  If the defendant has a claim against the plaintiff, then the defendant can issue what’s called a counterclaim and explain or ask the court what is it that they want the court to award against the plaintiff.  One more kind of pleading is Third Party Claim.  In this situation if a claimant or a plaintiff has sued the defendant and defendant believes that it’s not them who are responsible for those monies or for those damages but it’s a third party who should pay for those damages because they are the ones responsible and they want to bring that third party into that court action, then they will bring what’s called a Third Party Claim.  That’s how the third party claim will be issued.  Pleadings is really the first step in which all the parties are laying out their position/their facts for the court, for the judge.  They are explaining their side of the story.  Pleadings are very brief—the facts—only the facts are relied on.  There’s no evidence that is provided at this stage.

Step 2: is the Affidavit of Documents—which is really the evidentiary part of your court action. Through the Affidavit of Documents each party provides whatever evidence they have in relation to the Claim. If you are the claimant (if you are the plaintiff) and you have certain evidence (certain documents) that you need to rely on, then you must provide copies of those documents to the Defendant.  This is an important point to understand.  There’s something called a Trial By Ambush. And Trial By Ambush—what that means is that one party does not know what is the evidence against them.  All of a sudden the other party shows up with that evidence at the eve of Trial or during the Trial and then it destroys the other party’s case.  Then they can walk out free.  Most of the time you see these kind of tactics in criminal cases where this is allowed for the defendant. So if you watch Law and Order or similar cases you can see that at some point the accused walks in or accused lawyer walks in with the witness who nobody knew about—who that person was or walks in with a piece of evidence that is so damaging that it can destroy the Crown’s case (the prosecutor’s case).  That’s okay in criminal cases but in civil cases there is no Trial By Ambush in Canada or any part of the common law world.  What this means is that each party is entitled to know exactly what evidence the other party has against them and has the opportunity to review that evidence, to inspect that much before Trial.  There’s no surprise attack in Trials (in civil cases).  I want to explain that document is a very expansive term.  These are not just paper documents.  Documents include every single tangible piece of evidence that may exist.  These could be electronic documents, e-mails, text messages, cell phone records, meta data for your documents, photographs, videos, audio recordings and paper documents.  Every imaginable thing that is tangible is a document.  If it’s relevant it needs to be produced for that court action.  Document is defined in the Rules of Civil Procedure Section 1.03(1) provides or contains a definition of documents which I have explained to you.  Each party on completion of the pleadings, has to serve the other party with copies of their Affidavit of Documents which contain all the evidence that they have against the other party.

Step 3: The next step is the Discovery process.  Once the Affidavit of Documents are exchanged, each party is allowed to see if there is any further evidence that the other side has in its possession and they do that through the process called the Discovery process.  You are discovering more evidence from the other side.  One way it is done is through Examinations for Discovery and Discovery is also defined in section 1.03(1) said one of the Rules of Civil Procedure.  Examinations for Discovery is when you call upon the other party to attend Examinations for Discovery.  You are sitting in front of a court reporter. The court reporter records all of the questions that you ask.  Their audio recordings are transcribed in writing.  The other party has to respond to the questions that you’re asking.  The questions are really to explore if there is any more evidence that you need to figure out that the other side may have.  Sometimes when you review the other side’s Affidavit of Documents you may realize that the documents are referring to a meeting and there are no Minutes of that meeting provided to you.  You may want to explore whether there were such Minutes of the meeting; whether those meetings/those minutes are discoverable or not.  There could be additional witnesses that you may discover through the discovery process and you want to make sure that those witnesses attend a Trial.  Discovery process is really an opportunity for each party to explore whether there is more evidence that needs to be presented; that needs to be obtained prior to Trial because remember when the Trial begins then you don’t have or rarely have an opportunity to adjourn the Trial on the basis that you have discovered new evidence that is not available at this time and you need to adjourn your Trial, go get that evidence and then come back when the Trial begins. Usually you are expected to have done your homework, produce all of the evidence that you need and then proceed with the Trial up to its completion.  That is why the Discovery process is generally, the most important step in a civil action.

Step 4: Once the Discovery process is complete or even sometimes before the Discovery process is done, the Parties go to Mediation to see if the matter could be settled.  Now depending upon in which region, which part, and which municipality your case is, if your court action is in Ontario, you may have mandatory Mediation.  In some you don’t have mandatory Mediation.  In Toronto the Mediation is mandatory for all court actions.  What this mean is that both parties or all of the parties have to agree to a mediator who has to attend a Mediation session and explore whether this court action could be settled without going to Trial.  I can tell you from experience in employment law cases that the majority of wrongful dismissal cases over 90 to 95 percent of the wrongful dismissal cases get settled at Mediation stage and don’t even go to Trial.  If you want to know whether the Mediation is mandatory in your specific region you must check the Rules of Civil Procedure and Practice Directions to figure out whether you are required to attend a Mediation.  If you’re not required to attend a mandatory Mediation, you may still want to explore with the other side whether it’s a good idea to go and attend Mediation. 

Step 5: If the matter doesn’t settle at Mediation, you can proceed to Pretrial.  Pretrial is really another attempt—now in front of a judge to see if this matter could be settled.  When a pretrial is arranged; it’s now arranged in front of a Master or a Judge.  The judge will first of all try to see if the parties are willing to resolve that matter.  The judge will try to help those parties to come to a resolution.  If the parties are still not able to resolve their case, then the judge will try to narrow down the issues for Trial, so that the Trial judge knows what are the legal issues that he/she has to decide at Trial.  Finally the judge will figure out how many witnesses each side has; how many days it will take to complete the Trial and then schedule the Trial dates.

Step 6:  Final step is the Trial.  This is the step where you are presenting your case with all of its evidence either before a judge or in front of a jury and the judge or the jury will ultimately decide who wins the case and who loses.  At the end of the Trial there are always winners and there are always people who lose and if you don’t want to be in that position then you really want to explore prior to the Trial whether this matter could be settled.

Few things that you want to keep in mind is that if you are in a court action or you want to commence a court action or you’re defending a court action in Ontario, you want to read the Rules of Civil Procedure and the Practice Direction to understand what steps you have to take.  You also want to keep in mind that for each step, for each document that you have to file or serve there are forms for that step.  Those forms are also available online.  You can go to Google and type in Rules of Civil Procedure forms and all these forms are available online. You will notice that these forms are numbered.  The way they are numbered is usually if it’s, let’s see, this is the number 4A, it is titled General Heading of Documents-Actions.  4A—this document relates to Rule 4 of the Rules of Civil Procedure.  If you scroll down, there are all these documents that are numbered and they are related to the specific rule that they are referring to.  You can find these documents. You can open them in Microsoft Word or in pdf.  You can complete those documents and these are the ones that you file. You want to remember that even though you may have commenced a court action or you are defending a court action, the court action can be settled at any time.  You may have been served with a Statement of Claim and you believe that the matter could be settled by talking to the plaintiff or to the applicant or to the pleading party, then you can have that resolution.  You can go to a Mediation.  You can have a third party help you with the settlement and you can settle it.  There are cases that settle at the eve of Trial, there are cases that settle during Trial—as long as the Trial is not completed you have that opportunity (even sometimes before the judgment) you can actually settle the case and then allow the court to dismiss the court action without getting a judgment.  Settlement can occur at any time at any stage.  It really requires all parties to agree to a settlement and then settle the case.  Last thing I want you to keep in mind is that there are the legal costs.  There was a study that came out a few years ago in Toronto which indicated that a three-day Trial in Toronto from the time it is commenced (from the Statement of Claim) to the time the Trial is completed costs upward of $50,000.  Those are the legal costs that are present in our system which are quite high and it’s one of the factors that you want to keep in mind when you are deciding—when you’re taking your case all the way to Trial—whether in a cost benefit analysis it makes sense to fight the case all the way to Trial and not ignore that the resolution through Trial takes a long time.  The courts are overwhelmed by so many civil cases that it takes quite some time to get to Trial stage.

Hopefully this lecture explains to you the basic steps of a civil action in Ontario.  What we will do in the future lectures—we will cover some of the important Rules in each lecture, explain their application, explain what do they mean, how do you apply those rules in your own circumstances and then as we move forward we’ll try to decipher/unravel the mysteries of Rules of Civil Procedure.  If you have any questions, please contact us, send us an email or post your comments and we’ll be happy to address those.  If there are any specific Rules of our questions relating to any specific Rules that you may have in your mind, by all means contact us and we’ll keep adding those in our future lectures. 

Thank-you for watching.