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| Frequently Asked Questions about
Civil Litigation |
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What is the difference
between civil and criminal court?
Criminal courts deal with charges of crimes, primarily under
the Criminal Code. By contrast, civil courts deal with breach
of contract cases, as well as torts, which in essence are
wrongful/negligent acts that result in some harm or damage.
In Ontario, civil actions are governed by the Rules
of Civil Procedure. Currently, claims under $10,000 are
heard in the Small
Claims Court, although the monetary limit will shortly
be changing
to $25,000.
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What can I sue for?
Most lawsuits are for money. You may be seeking damages for
a breach of contract, or compensation for an injury. In some
cases, other remedies are also available, in which a court will
order a person or corporation to either do something or refrain
from doing something. This type of relief is, however, significantly
less common that suits for money alone. Although an award of
money may not actually compensate you for some wrong or injury,
it is generally the only remedy available to a court.
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Can I get my legal expenses
paid by the other party?
A successful party may obtain an order requiring the opposing
party to pay a portion of legal costs, depending on the circumstances
of the case. However, you will have to pay your legal expenses
up front. Even if a judge orders the opposing party to pay some
or most of your costs, there is no guarantee that you will get
the money, as the opposing party may not have sufficient funds
to pay you.
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How long does it take
to bring a case to court?
Every case is different. There are several stages to every case,
and it often takes longer than most people expect, to bring
a case to trial (if it goes that far).
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What are the Rules of
Civil Procedure?
The Rules
of Civil Procedure govern the way in which legal actions
are conducted. Every action is conducted in compliance with
the Rules, which set out how actions are commenced, how they
are defended, how evidence is exchanged and how matters can
be brought to trial, amongst other matters.
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Who are the parties to
a lawsuit?
Every action has at least one plaintiff, who is the person or
corporation who starts the action. The defendant(s) are those
against whom the action is brought. A party can be either a
person or a corporation. If a person is a minor, or unable to
make decisions for him or herself, a Litigation Guardian is
appointed on their behalf.
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What are pleadings?
Every action is commenced by a Statement of Claim and is then
defended in a Statement of Defence. The pleadings set out the
essential facts of the breach of contract or tort, or the defence
so that the opposing party knows what claim is being made, or
what defence is being asserted. The parties are restricted to
the basic elements as set out in their pleadings when arguing
their case at trial.
Pleadings can often be amended during the course of the litigation,
if necessary, but not always. It is important to include as
many facts as possible at the outset.
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What happens if the defendant does
not respond to a Claim?
If a defendant ignores a Statement of Claim, judgment can
be made in his or her absence.
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What are the main steps
in a civil action?
The Rules of Civil Procedure are based on the principle of disclosure.
“Trial by ambush” is a thing of the past, and the Rules create
a scheme whereby each party must disclose the documents and
other evidence, including expert reports, on which they intend
to rely. The first step is the exchange of documents in an Affidavit
of Documents. Next are Examinations for Discovery, followed
if necessary, by the exchange of Experts’ Reports.
Once the parties are ready, a pre-trial will be scheduled before
the matter goes to trial. There may be several court appearances
to deal with matters that arise during the course of the litigation,
particularly in relation to the exchange of information leading
up to trial.
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What is an expert report?
In many cases, it is not enough to present the bare facts.
An opinion regarding the impact of those facts may be necessary.
While anyone can testify as to facts, only experts can give
opinion evidence. So for instance, anyone can say that they
fell and hurt their arm: only a medical expert would be able
to give a diagnosis such as a torn ligament, as well as a
prognosis, such as how long it might take to recover.
If either party wants to call expert evidence, the report
of those experts must be exchanged well in advance of trial.
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What are Examinations
for Discovery?
Each party has the opportunity (through counsel if counsel are
retained) to ask the other party questions about the case, under
oath, well in advance of trial, so that they know what evidence
will be called at trial. The Examinations for Discovery are
recorded and later set out in a transcript.
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How long will you have to wait for
a trial?
It really depends on how long the waiting lists are in that
area. It is not uncommon to wait more than a year. It could
even be longer. Going through the legal process takes time.
Your lawyer also needs time to prepare your case before the
beginning of the legal process. Each case will be different.
Generally, a lawyer needs more time to prepare a complicated
case than one with simple facts.
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Are there other ways to resolve my
case?
Even after a civil suit has been started, the parties can
still reach a resolution. This is sometimes done through informal
settlement meetings with the lawyers present, or more formal
mediation sessions as well as through the court’s own pre-trial
process. The attempts to settle the case do not stop until
the trial has started (and sometimes continue even longer).
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Where can I get more information on
the court process?
The Ministry of the Attorney General has useful information
on the civil litigation process at http://www.attorneygeneral.jus.gov.on.ca/english/courts/civil
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This information is for
information purposes only and is not intended to be legal
advice. Full and complete legal advice can only be given by
a lawyer who has detailed information about your individual
circumstances.
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