Before Commencing a Court Action – Things to Consider

Share this:

Parties are required to disclose all documentary evidence whether favourable or unfavourable to their case. This disclosure of documents is accomplished through affidavit of documents. This lecture explains the contents of the affidavit of documents and timeline for their production in the context of Rule 76 – Simplified Procedure.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.


Show Notes:


Lecture Slides:

Welcome to YouCounsel.

We have already posted a number of lectures regarding how to commence a court action in Ontario. How do you write your statement of claim or statement of defence; what is contained in those pleadings, etc.  Based on some of the inquiries that we have received lately it makes sense to take a step back and post a lecture on some of the things that you must consider even before you decide to come into court.  The choices that you make based on these considerations have important consequences.  It is essential that you have thought about these issues and then made the right choices so that if you have commenced a court action then it is appropriate and you get the remedies that you’re seeking.

We can commence with our usual disclaimer that this lecture is not legal advice. If you have any specific questions you should contact a lawyer or a paralegal or the Law Society of Ontario for any referrals.

The first thing you should consider is whether you have any alternative to commencing litigation. Litigation could be costly; litigation could take a long time and litigation is a public process. You may have at your disposal other dispute resolution processes available that may make sense in your circumstances.  It is a good idea to explore those processes and see whether those processes make sense rather than commencing a court action.  Or you may want to engage those processes first and if they don’t resolve your issue then you may commence a court action.

One example that comes to mind is, if you have a harassment complaint of any kind against a co-worker then your organization (your employer) has an obligation to conduct an investigation.  Once you file that complaint, there may be an impartial third party investigation or an internal investigation conducted in your case.  That may be able to resolve the very issue that you have raised.

Another example could be that you have a human rights discrimination complaint. Your employer may have certain processes available in which you can file that complaint and half that matter investigated and resolved.  These are some of the things to consider because it may make sense for you to engage those processes before you decide to come and commence a court action. 

The other way to resolve issues is mediation.  In certain circumstances you can have a mediation even before commencing a court action.  This mediation would not be part of the court process—not the mandatory mediation that you have in the court process.  Parties can agree to hire a third party—a neutral mediator and have that person assist them in crafting a resolution which may be satisfactory to both parties.  Obviously, you can always directly negotiate with the other party and see if your matter could be resolved. I believe that it is always worth doing that because a lot of times we think that the matter may be very antagonizing but, in fact, it may not. Once you start talking to the other party you may be able to understand their perspective better and they may be able to understand your perspective better and you may be able to resolve the matter through direct negotiation.

Finally, parties may agree by agreement (they may decide) that they would rather take the matter to arbitration rather than going to court.  In some circumstances that may make sense.  You may want the whole process to be confidential and arbitration may give you that opportunity.  Whereas a court process is a public road—you may want the matter to be resolved quickly and arbitration usually is a more expedient process than a court process—which takes longer.

The important thing for you to consider is that first of all are there any other ways in which you can resolve this issue and are they worth proceeding (worth engaging) with.

Second thing that you must consider is whether another adjudicating body has the jurisdiction on the dispute that you want to bring to the court.  This is an important consideration because sometimes depending upon the dispute, a Board or Tribunal may have exclusive jurisdiction on that issue of jurisdiction—meaning in this case that the only choice you have is to go to that Board/Tribunal. You cannot go to the court.  Your matter will not be heard by the court because the Board/Tribunal has exclusive jurisdiction.

One example is a landlord-tenant issue—whether it’s nonpayment of rent; whether you want to evict the tenant—all issues that relate to the subject of landlord and tenant relationship are the subject matter of the Landlord and Tenant Board which has the exclusive jurisdiction to deal with those matters.  If you want to bring a court action against a tenant to evict him then you will not get that remedy because you’re not in the right jurisdiction.

Similarly, Human Rights Tribunal has exclusive jurisdiction with dealing with human rights discrimination.  You cannot go to court and file a court action. There are situations in which you’re able to do that and I don’t want to get into that in much detail. An example that comes to mind is if you have a human rights discrimination case against the party and you have a wrongful dismissal case against the same party, then obviously the court does not or the legal system does not require you to have won the wrongful dismissal case in the court and the discrimination case in the tribunal—even though the underlying facts are pretty much the same.  In that case you can go to court and have the entire matter adjudicated there.  There are certain ways. But generally speaking when a board/tribunal has exclusive jurisdiction then, that’s the only place you can go to.

Workplace issues/workplace safety issues is another matter Workplace Safety and Insurance Board may have exclusive jurisdiction to deal with certain issues.  You need to make sure that regarding your particular issue—does any other body have any exclusive jurisdiction to deal with it? If it does, then your choice is to go to that body/to that tribunal. You cannot go to court.

Another important consideration is an arbitration clause. Your dispute may be subject to an arbitration clause.  In a lot of commercial contracts the parties may agree, in the contract, that if they have any dispute, rather than going to court they will go to arbitration.  If there is such an arbitration clause, then you are not allowed to go to court—your only choice is to go and have your matter arbitrated.  Some employment contracts have arbitration clauses as well.  If your employment contract contains an arbitration clause you will not be able to go to court—you have to go to arbitration.

If you have considered all of that and you believe that the best way to go is to a court in Ontario, then the next question is whether you should commence a court action or an application. The two are separate processes.

Rule 14.05(3) deals with what are some of the factors that you should consider if you want to commence an application. I have a separate lecture on this topic so I would encourage you to review that.  I will save some time in this lecture and will go to the next consideration, which is what type of proceeding you should commence?  You are still in court (you still want to go to court), you have made all those considerations then, (a) you decide whether your matter is $35000.00 or less.  If that’s the case then, you go to small claims court. Just so you know that small claims court had the jurisdiction of $25,000.00 which is now increased to $35000.00 as of January 1st 2020. If your matter is for $35000.00 or less you cannot go to the Superior Court.  Your only choice is to go to small claims court and commence a court action.

(b) The other type of proceeding is Simplified Procedure.  I have many, many lectures on simplified procedure. You need to consider whether you should commence a simplified procedure court action or an ordinary procedure.  Please review my lectures on simplified procedure which explains to you in what circumstances you should commence a simplified procedure or an ordinary procedure. 

Then you have to decide when you should commence a court action.  This question relates to the limitations period there is a limitation/a time period during which you can commence a court action.  Generally speaking it is 2 years but it could be different.  You cannot speculate (you cannot assume) that it is 2 years, you have to make sure that in the specific circumstances of your case what is your time period.

A common example is human rights discrimination.  If you are filing a discrimination complaint you have one year from the time that your action arose/your complaint arose—and within one year you have to file your application for human rights discrimination. There could be other time periods.  In some cases the limitation period could be as low as 3 months. An example is, if you have sustained damages due to non-repair of a highway or a bridge and you need to sue a municipality.  If you’re suing a Crown or municipality, you have to serve notice within 10 days after the claim arises.  If you sustain damages today, then you have 10 days to serve your notice to the crown that you’re going to sue them. If you don’t serve that notice in 10 days—you’re out of time and you may not be able to commence your court action in 3 months in this specific case.  It is very, very important to confirm what is your time limitations period and make sure that you commence your court action or application within that time period.

Where do you commence your court action? Which specific county? Which court house has the jurisdiction to deal with your specific matter? Small claims court has specific rules regarding which county you can commence your court action.  I have a separate lecture on that as well—so kindly check that out. With respect to superior court you should check Rule 13.1.  I’ll give you a brief overview of this Rule.  The Rule specifies that if a statute or Rule specifies a specific county for that dispute then that’s where you commence your court action but if there is no Rule or statute that asks you to commence a court action in a specific county then you can go to any county. You can commence your court action in Toronto; you can commence in Sudbury—you can choose whichever county you think is appropriate.

That said, the court may be able to transfer your case to another county on a motion by the other party if the court believes or if the other party is able to demonstrate that a fair hearing cannot be held in that specific county where you commenced the court action or in the interest of justice.  Please check Rule 13.1. It’s a detailed Rule.  There are number of factors that the court may consider and you should know about those factors before you choose which county you wish to commence your court action.

What is the lesson from here that these considerations are important; there are consequences that may follow due to wrong choices. One obvious consequence is cost consequence. For example, you should have been in small claims court because your matter was less than $35,000.00. You commenced a court action in superior court. The other party brought a motion. Now your case will be sent or transferred to small claims court and you may have to pay a cost to the other side for wasting their time and money. That’s one example of cost consequences.  There could be more fatal consequences.  In some cases you may not be able to get the relief at all that you’re seeking.

An example that I can give you is that you had a human rights discrimination case you commenced a court action rather than going to the tribunal. The other side brought a motion. They got your case thrown out because the court did not have the jurisdiction. Tribunal had the exclusive jurisdiction. By the time your case is thrown out, let’s say you’re out of the limitation period—it is more than a year—that was the time period during which you should have commenced your application at the Tribunal. You missed that deadline. When you go to the Tribunal and say, “hey I was in the next window, can you please let me in?”  They may not allow you to do that.  You may have a meritorious case but because of the wrong choice that you made your limitation period may have run out and you may not be able to even get into the other jurisdiction that was the appropriate jurisdiction.

These are important considerations. Please make sure that you think about these things before you commence a court action and hopefully it will help you decide what is the right strategy for you—whether to commence a court action or not.

Thank-you for watching.

Share this:

Comments are closed.