Civil Litigation Lawyer in Brampton, Toronto, Mississauga and GTA courts, small claims court trials and appeals to Divisional Court Ontario

Ravinder Sawhney, ESQ.
B.A., LL.B., LL.M. (Cornell)
Barrister and Solicitor.
Attorney-at-law, New York
905-569-1314
  "To fight and conquer in all battles is not supreme excellence; Supreme excellence consists in breaking the enemy’s resistance without fighting." Sun Tzu
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CIVIL LITIGATION LAWYER, TRIAL LAWYER





This section explains the civil litigation process which is useful to understand before you retain a lawyer in a court or a tribunal.  

It will guide you to determine in which court your case should be filed, and will outline the nature of evidence that is required in the court system for a case to be successful.  It also explains (a) the difference between arbitration and a court process; (b) the process of starting a claim and filing a defence, required in all civil cases; and (c) the nature of the discovery and pre-trial that follows. 

If you are facing a tribunal hearing, this section will also touch upon  the principles involved in judicial  review of tribunal decisions when challenged. Tribunal decisions are decided in a manner similar to the court, though the process is less formal.  

At the end of this section, a  link will connect you to the blog on How to Prepare for a Court or Tribunal Hearing. 

Civil litigation involves the bedrock of principles under which disputes are started through the legal system. The rules and regulations that control the legal process have some central requirements without which a court cannot address a claim.  These are part of what are called "causes of action", explained below.

Civil litigation lawyers seek remedies which are non-criminal in nature. Civil litigation is the huge challenge that our courts face, correlating with the efficiency of procedures that reflect upon the range of time for completiing cases, as well as your confidence as a member of the public in the pursuit of justice.

Civil litigation cases arise in the small claims court within the jurisdictional limit of $25,000, or in the Superior Court of Justice where two streams exist: Simplified Procedure claims upto $100,000 and Ordinary Procedure claims above $100,000.  Monetary limits thus define the scope of litigation in Ontario courts, given varying expectations of the court within this monetary classification. 

Canadian courts are now mandated by an early 2014 Supreme Court of Canada decision, to determine civil cases under the proportionality principle.  Proportionality relates the amount and complexity of litigation matters at stake to the procedural time and judicial resource allocation that the case deserves. Though this principle does not have specifically outlined content as a one size fits all solution, it is a tremendous guide to the target of attaining affordable justice.  

The Supreme Court of Canada has noted that our civil courts need to make justice accessible to the general population in civil matters.  This challenge, it has prescribed, must be met through such proportionality.  This recent emphasis on proportionality from the highest court will have an increasingly larger bearing on how the courts may expect a litigant and her lawyer to conduct a trial.

Throughout the country, courts are applying this principle rapidly, bringing about a transformation in our civil courts.  This can encroach upon one's right to represent freely, and adversely impact on self-represented individuals, who will confront the challenge of sharing judicial  resources and the pressure of efficiency in case presentation and argument.  

This underlines the importance of lawyer consultation, even if full representation is unaffordable, to prevent extreme prejudice to self-represented parties in a process that can easily compromise justice by the strain of efficiency, leading to unjust decisions and appeals.

Civil wrongs under what is called tort law, and contract law, are the subject of civil litigation in the courts. The trial process itself remains similar in all types of civil courts, despite some  variation in the court's procedures within the range of cases that are routed within the monetary classification stated above.  

A notable exception with respect to the rules of evidence is the more flexible procedure adopted in the small claims court where hearsay evidence can be admitted due to the relatively informal procedural character of the court.  

Hearsay evidence refers to out of court statements that cannot be cross-examined in court and are therefore not generally admissible in evidence on account of being untrustworthy.  Where circumstances show some trust can still be placed on such evidence that may not be capable of being cross-examined, the small claims court permits such evidence to be considered by the court.  

The idea is that claims upto $25,000 should not take too long to prove due to cumbersome, even if important, legal procedures.  Still, evidence that cannot be tested by cross-examination does not have much value, since the judge will not likely place much weight on it. 

Small claims court decisions are appealed to the Divisional Court in Ontario with its many branches spread out throughout the province in different regions.  Divisional Courts are not separate buildings but comprise of judges who sit on the Superior Court of Justice, the court of general jurisdiction, which is the umbrella under which the courts in Ontario are constituted.  

The same judges that try civil lawsuits outside of the small claims court also hear appeals and judicial review applications, except of cases which they themselves tried as trial judges. 

In a broad sense, the work of civil litigation lawyers integrates with litigation that takes place in tribunals as well, where specific matters are conferred upon boards, commissions and agencies, which are bodies constituted to decide matters legislated within their exclusive jurisdiction.

Since  the Divisional Court in Ontario, apart from hearing small claims court appeals, and appeals of matters valued at less than $50,000, also has jurisdiction to hear judicial review applications from such tribunals, these tribunals apply judicial principles laid down in courts, which intergrates the courts with the tribunals.  

Nevertheless, these provincial tribunals of various subject matter ranging from workers compensation claims to traffic tickets, often exercise substantial expertise to which the court will defer, on account of their exclusive jurisdiction, in reviewing judicial matters of hearings conducted before the panels of these tribunals.

Successful judicial review applications often show breaches of fundamental justice, such as natural justice, and such overriding principles of law which deserve to be observed throughout the judicial system, regardless of exclusive jurisdiction of tribunals.  Civil litigation is thus a very broad spectrum of law since it attracts a remarkably large set of legal principles that lawyers practising in this area need to be familiar with.

With regard to the level of evidence required to prove a case, these principles overlap and are often inspired by criminal law, though distinctions are observed in this process between the two proceedings.  In particular, the standard of evidence is the most significant distinction since criminal matters, unlike civil matters, must be proved beyond reasonable doubt.  

This is not to say that the lesser standard of proof in a civil case, called the balance of probabilities standard, which examines whether a set of facts is more likely to have occurred than not,  is a cake walk for a lawyer representing in a civil lawsuit. 

CAUSE OF ACTION TO EXIST:

One of the requirements in establishing a civil case in a court, including the small claims court,  is the existence of a cause of action. This is the basis necessary to maintain a lawsuit. It is important that there be a reasonable foundation for what is being claimed from the court against another party.

The legal elements of causes of action must be satisfied to exist on the evidence to raise the next legal question as to the relief that they justifiably bring to a party by the court.  For example, if you are claiming a breach of contract, you must show that there was a contract, which means proving that an offer and acceptance of terms took place amounting to a meeting of the minds between you and the other party as to those terms.

Causes of action are based on judge-made law through interpretation, and statutes.  You can try to have causes of action recognized though the court may not yet have recognized them.  For example, the Ontario Court of Appeal in early 2012 recognized the tort of privacy, allowing Ontarians to exercise their breach of privacy rights for damages.

Similarly, civil litigation lawyers often try to have new duties of care imposed on persons and entitites believed to have breached such duties toward others, though the relationship between the potential litigants may not yet have been a precedent for recognizing such duties of care leading to negligence and other claims. 

GENERAL LINK TO DAMAGES:

Causes of action must generally also be shown to link to damages. Damages must be proven to pin down liability to an amount that a court would consider proper for a party at fault to pay. The evidence required for such damages must be proven to be more likely than not, meaning, a court must be convinced that the events giving rise to damages did likely occur.

As stated above, and worth emphasizing, in civil cases, you need not prove beyond reasonable doubt that your allegations are true in order to have your claim accepted by the court.

The amount you will be entitled to as damages is in keeping with the trends of the courts in the province, and to some extent, across the provinces. This research to estimate the damages is beneficial and provides a realistic groundwork for bringing about a lawsuit. It involves matching expected damages against the legal fee that would be incurred in initiating and maintaining the lawsuit or claim.

LIMITATION PERIOD:

A general limitation period of two years within which claims or actions (as these are called in Ontario) must be filed in court, is an important deadline. There are shorter periods for some claims. These should be carefully checked.

BENEFITS OF EARLY MEDIATION:

Early settlement attempts when a dispute is simmering may be useful to bring the parties to the negotiating table. The passage of time can harden the positions of parties, making them less willing to negotiate differences. Mediators do not need to be lawyers, though the role of a lawyer should be assessed as well, given that it is cheaper to settle early.

COURT ACTION, ARBITRATION AND APPEAL ROUTES:

Some agreements may force arbitration as the route to settle disputes. Arbitration is a parallel process to the court and generally does not easily permit appeal rights as do court decisions made in the first instance. This is a vital difference between the two processes. Sometimes, an agreement contains a forced arbitration clause in fine print. The validity of such clauses in the context of consumer protection legislation is often a debated issue in the courts.

Different courts have different appeal routes. Small claims appeals of amounts in issue above $2,500 go to the Divisional Court in Ontario whereas Superior Court of Justice trial decisions go directly to the Court of Appeal if the amount at stake exceeds $50,000 while appeals of lesser amounts go to the Divisional Court. 

TO COUNTERCLAIM OR NOT TO COUNTERCLAIM:

A question that often arises is whether you should counterclaim in the process of defending yourself. Some are of the view that a counterclaim will position a defendant strongly for negotiation. A counterclaim should not be filed if there is not sufficient basis for it. A baseless counterclaim reflects on credibility and can cause an otherwise good defence to be lost.

A successful defendant is entitled to seek reasonable costs from the plaintiff for bringing on the lawsuit. The perception that this may not be sufficient in the end is not a proper ground to frame a baseless counterclaim since this would not likely get better results in the court. A court will likely award costs against the party bringing a counterclaim that is not supported by the evidence.

SPECIAL RULES FOR CORPORATIONS:

Special rules exist for corporations engaging in lawsuits in the courts. In Ontario, a corporation must have a lawyer represent it in court. Court permission is needed to have the corporation represented by its director or anyone else, as an exception.

DISCOVERY IN CIVIL LITIGATION:

In the second  stage of a civil litigation matter, after service of the claim and defence respectively, a party should discuss and understand the process of discovery with her lawyer.  The discovery process is designed to enable the parties, and specially the lawyers, in the civil litigaton matter, to discover the scope of the evidence that supports the allegations made in the claim and the defence.

 By being forced to provide such evidence, each party is able to assess the strength and weakness of the other party's case. Questions are asked of each party by the other in the discovery room through the other party's lawyer. A transcript is made that primarily serves to show contradiction with trial evidence in the court.  Questions are explorative in the discovery process rather than a cross-examination of the party, though cross-examination is permitted during discovery.

On the other hand, the court process of cross-examination is a rigorous one on which the case can succeed or fail.  The foundational character of the evidence presented in discovery is test material for the final time of cross-examination in court.  Therefore, it is important for you to appreciate the opportunity that discovery presents in the overall litigation process culminating in the trial since it is an intermediary step that connects the given evidence at discovery with the outcome of court findings in a trial.

Given the wide-ranging character of discovery in civil litigation, you should practise focused questions with your lawyer on key issues such as basis of liability, amount claimed by a party under various heads of damages with their evidentiary basis, nature of the allegations, and the quality of proof the other party intends to present to the court.  

Every case has crucial facts which will test the truth spoken by a party.  Contradictions that arise, the facts that make them seem to arise, factors that explain and minimize the contradiction, factors that reiterate the theory of a party in presenting its case, are all part of the discovery process.  

The cross-examination in the court is often built around the answers of the opposing party in the discovery, which typically takes place much ahead of the trial.  Discovery facilitates early identification of issues and also provides your lawyer sufficient notice to prepare for the trial in respect of the law that becomes relevant with the appreciation of issues raised in the discovery.

Relevant documents must be produced by each side for the discovery which permits exploring issues raised in the statements of claim and defence by the parties. Parties must promise to give documents that arise under relevant issues raised in the discovery, or state the legal basis of refusing to provide them.  This promise is called an undertaking.  Courts consider undertakings important, not to be breached.

In sum, the discovery is a signficant aspect of the civil litigation party working closely with his or her lawyer, and preparing in advance of the discovery, all issues and pertinent documents that should be produced to the other side as well as obtained from the other side.  The questions arising from these documents are crystallized through the discovery and often lead to other related documents that importantly need to be produced on an ongoing basis after discovery is completed.  

This continuing obligation assures that relevant information remains available to the opposing party before the trial to facilitate true assessment of the merits of the case at all times after the parties have faced each other through the discovery process.  

Signed and unsigned documents often become issues in discovery.  Parties must own up to their signatures or risk being not credible when it is otherwise provable that documents were signed.  Arguing that one did not understand what one signed is a hard sell before a judge since one is expected to ask about contents of documents before signing them.  

A party that contradicts himself within the discovery process, thus exposing his weak case, should settle to prevent wasted trial resources.  Civil litigation lawyers often encourage their clients to settle when that happens.   A reality check should be impelemented immediately if one's own case is revealed to be weak on evidence at the end of the discovery, to prevent legal costs from rising. 


In one matter, I had a sophisticated opposing party with a PhD, whom I was discovering.  She did not have a single document or a credit card expense proof in respect of expenses she claimed she made on basis of which a claim was filed against my client.  When I  asked her to clarify how she expected to convince a court  without any written proof whatsoever, and why she did not demand any signatures from my client as receipt of payments she claimed to have made to him, she had nothing to say.  I did not hear anything further in that matter, the plaintiff evidently giving up her case on the weakness revealed by the discovery.

The discovery process is also important because it enables lawyers to determine the appropriate timing of a range of suitable offers that could seem enticing to the other party to settle.  A nervous party at a discovery without the evidence to support its claim is more likely to accept a low offer than a confident party with proven evidence that shows strength.  

Discovery helps the parties estimate how serious a claim or counterclaim is, and whether it will survive under the evidence shown to be present and available.  It also lays the foundation for the lawyer to prepare issues within the focused law that may have undergone recent interpretation in the courts.  Focused research will assist in uncovering and contextualizing the content of such recent interpretation in the light of the facts of the case.

The prior exchange of the affidavit of documents, which  is a sworn statement that all documents relevant to the claims made, have been listed for inspection of the other side, is necessary before discovery can be held.  These documents are the raw material upon which discovery questions are asked by an opponent's lawyer in the discovery room.  

Discovery is not the dull process that it is sometimes believed to be due to the exchange of routine information, but a cohesive, interactive and charged information session where focused relevance and honing of issues is vital to discovering what a party is often unwiling to provide.

As a party, you should always act naturally in all responses as far as possible, since this rarely gives the wrong impression to the other side. Consider the discovery as a mirror of the  trial process for issues that will be raised in the court.  This makes it important for court preparation.  It should be remembered, though, that the court atmoshpere is quite different due to the scrutiny of the judge at all moments.

The discovery process does not have a judge presiding. Lawyers object to irrelevant questions and create a record of their basis in law for the court to later examine if need be, if the objections are reasonable. 
Motions can be made to the court to have the other side ordered to produce information not being given.  Discovery transcripts are ordered for this purpose to serve as the evidentiary background for court remedies, or "relief", as the term is used, in such motions.

Motions are a useful tool for civil litigation lawyers to further discover the case though the expense and time to be heard in court must be calculated. The law does not encourage uncooperative parties to force lawyers to make such motions.  

It is important to note that losing motions reflects on credibility.  The trial will note all that has happened as part of the case before, and it is best to cooperate at all times and to remain within the Rules if objections are necessary for production of information.  Information that is protected through solicitor-client privilege cannot be ordered disclosed since exchange of communications between you and your lawyer cannot be revealed to the other side.   

Discovery is thus an important phase of the civil litigation matter in which the active role of your lawyer can be instrumental in early settlement or proper advancement of the matter with most relevant issues being speedily forwarded to further the progress of the case in the court system to reach closer to trial.  

Discovery provides your lawyer the first real glimpse into the personality and expectations of an opposing party, which must be measured wisely to structure the continuation of the lawsuit.  It will be helpful to add your knowledge of the other side's attitudes and style to your lawyer's newfound understanding, to provide the necessary insight to posture alternative timings and positions of settlement.

Usually your lawyer will be in a position to accept your insight, or contradict it if the process raises eyebrows on significant responses by the other side that the discovery brings out.  At this point, it is important to weigh factors objectively to capitalize on the knowledge obtained on discovery. There is room for both surprises and established patterns to emerge, depending on the actors and factors that define the dispute.


JUDICIAL PRE-TRIAL:

Prior to trial, there is another opportunity for the civil litigation matter to be reviewed informally with the lawyers by a judge with non-binding views in a pre-trial conference, the term used in civil procedure.  This is the judicial pre-trial, a term used in criminal law, with a parallel civil litigation intermediate process of the  pre-trial conference, that permits an opportunity to settle before the full-blown trial process is drawn up by setting a trial date.  

The presence of a judge makes the process judicial, befitting the term 'judicial pre-trial', though the judge is only meant to persuade upon evaluation of the issues what a party's risk is in going to trial.  Your lawyer will share the judge's views of the case with you, and suggest a proper settlement which often arise at this stage. I have had occasions when  I have found a second meeting and an extended judicial pre-trial upon special request, to be useful in convincing a party of the weakness of its case to save the cost of a trial.  

Gearing up for a trial when the opposing party is unreasonable at the pre-trial stage finalizes many items of challenge, though expert reports are often outstanding and need to be prepared and shared before the trial.  

This aspect of evidence across all kinds of civil litigation matters is now subject to changing interpretation, with the Rules now expecting experts to serve the true purpose of assisting the court rather than restating material prepared as hired guns on behalf of their party.  After several wrongful criminal convictions by the dubious testimony of forensic pathologist Charles Smith in trials upon baby-shaking and killing charges in the not too distant past, the courts have become acutely aware of the dangers of unsupported expert testimony even in civil matters.  

Outstanding matters such as expert reports to be provided to opposing parties can still have significant impact on the outcome of the trial after the pre-trial.  Pre-trial courts can make orders relating to such outstanding matters with respect to deadlines and other aspects, to bring focus on all issues for the trial.  

A partial summary judgment can be sought where suitable even at this stage where the result will have a significant impact on the overall case.  A summary judgment is granted on facts not in dispute and therefore not needing a costly trial. A partial summary judgment is granted on partial but important facts not in dispute, which need not be tried. If such partial summary judgment is granted, then both parties could be persuaded that if would be futile to have a trial on the remaining facts if they would not amount to much in terms of legal remedy arising from them.  An overall settlement may be within your reach if you are under those circumstances.

The idea is for you to continue planning till the end to settle with terms reasonably satisfactory to you and the other side.  Civil litigation lawyers aim to settle by and large.  At the final time of trial, it is important to have tried well to understand the issues that truly still drive the dispute and to prepare carefully the evidence that will make all the difference, to prepare the necessary witnesses, and to complete the research on the fine points of the law that will apply at the trial. 


REASONED LEGAL STRATEGY:

Litigation is not a tea party. It has serious consequences for the lives and well-being of those involved. Reasoned strategies must be devised to contain the emotional charge of the process, and a lid must remain on extreme positions that diminish objectivity.

A moderate approach assists in managing the intermediate and long term impact of litigation. Risk assessment must include the impact on the quality of time that is lost in not resolving differences on a timely basis.  

At the same time, a central component of legal analysis is the focus on issues where justice demands a full-scale trial in the absence of another remedy, and the determination of both lawyer and client to pursue the matter vigorously.  

In these situations, Sun Tzu's dictum may fade, though still applies since it underlines supreme excellence in settling in most, and implicitly not in all, matters.  Arjun's dialogue with Krishna in the Bhagavad Gita may come alive to carve out the issues and content of the dispute, and to apply intelligent legal strategy to seek justice.

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