Civil litigation refers to litigation of cases in the courts in Canada that are not criminal in nature. Civil litigators are lawyers who deal with civil matters such as contracts, torts, bankruptcy and estates. These are private actions between parties. Torts alleged against the government in the courts are also civil litigation matters within this category, sometimes raising constitutional challenges. Various types of motions prior to and during the conduct of a case also arise in such a civil litigation practice. Civil litigators spend considerable time dealing with such motions since they are part and parcel of civil litigation. A prominent feature of civil litigation is that most cases eventually get settled and do not reach trial.
Civil litigation courts in Ontario are distributed throughout the province. Our civil litigation practice is in the courts in Toronto, Brampton, Hamilton, Newmarket, and the GTA. The Superior Court of Justice is the umbrella court under which civil litigation cases are filed and fought. If you see old references of cases in this court, it used to be called the General Division in the Ontario court system. This court does not have specific divisions in Ontario. In most courts, there is a single window or set of windows for acceptance of the forms and filings. Of course, after Covid, filing of documents and issuance of claims and applications is done through the JSO portal, and all courts have an email address to send documents for urgent matters. It is a good idea to check with the court before sending documents when not sure.
Civil litigation lawyers are central to the court system. They have a very wide familiarity with the Ontario Rules of Civil Procedure and the Courts of Justice Act in which a huge chunk of procedures are embedded to be tapped for different subject matters involved. To these two sources of rules are added specific statutes that become relevant to the particular type of civil litigation matter at stake. If you are trying to familiarize yourself with how the law works in the civil courts in Ontario, the two sources will give you the meat which you should try to digest to understand how your case would commence and unfold. If you are a vegetarian, you will benefit by chewing the relevant provisions to use them as needed.
This civil litigation section is a broad based information session that summarizes these general procedures. It has a commentary to help you understand in the beginning the new principles under which the court system operates. While it is important to know how Covid has changed the court system largely through electronic documentation and filings, it should also be noted as to how the Supreme Court of Canada now expects civil litigation to proceed. Familiarize yourself with this expectation so you can better manage your case with your lawyer. If you are venturing into litigation entirely on your own, then it is even more important to understand how the courts are expected to operate in civil litigation matters.
Civil litigation has been noted in world justice project reports to be a slow process and not within the reach of ordinary citizens. The expense is tied up with procedures and also with the lack of judicial resources. Most countries face this challenge and Canada is no exception. Wait times are of grave concern. Modernization of the courts remains a constant theme of judicial reform, in which civil litigation justice reform is significant. The Supreme Court of Canada has noted all of this and wishes to change things around. More on this below.
A large part of the public uses the courts at some time or another. The Small Claims Court now accepts cases up to $35,000 in Ontario to make justice accessible for matters without lawyers in most part. The family courts also have self-representation in a great proportion. In many courts, the family court challenges are clubbed with civil litigation courts since only in some geographical areas do we have Unified Family Courts as separate branches.
Civil litigation lawyers in Toronto enjoy a special Commercial List which follows somewhat distinct procedures and is meant to speed up matters of commercial cases before it. Procedure in civil courts should always be checked with the particular court in question and by examining its Notices to the Profession. Given that court filings can take considerable time to be accepted, it is important to review the Notices carefully to make your case at times of rejection. These Notices to the Profession are a guideline in different courts challenged with managing their caseloads but cannot conflict with the Rules of Civil Procedure which apply uniformly in all courts and prevail over the Notices in instances of conflict.
Civil litigation cases in Ontario arise under three monetary limits. First, small claims court matters are within the jurisdictional limit of $35,000. Second, in the Superior Court of Justice, Simplified Procedure claims can be filed upto $200,000. Third, Ordinary Procedure claims above $200,000 can also be filed in the Superior Court of Justice. It should be noted that equitable relief such as an injunction can only be claimed in the Superior Court of Justice, not in the small claims court, regardless of the amount in question.
Canadian courts are now mandated by Hryniak v Mauldin, a 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. It has prescribed that this challenge must be met through such proportionality. This recent emphasis on proportionality from the highest court is a game changer. It has revolutionized judicial thinking and is increasingly impacting new procedures being devised to shorten trials and enable access to justice.
Talk to your lawyer about this factor. Courts look for judicial efficiency. The challenge of limited judicial resources to process the backlog of cases, however, cannot go away. Reasonable approaches to permit efficiency with fairness of procedure will continue to be the framework and theme of our judicial system. So think through your facts. Don't invent wishful thinking. No matter how difficult, choose to be realistic and be diligent in preparation.
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.
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 $35,000 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. Divisional Court is not a separate building but comprises judges who sit on the Superior Court of Justice, the court of general jurisdiction in Ontario.
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. These are bodies constituted to decide matters 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. This factor integrates 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.
Statutory language is important in analyzing judicial review and appeals. Recently in 2019 the Vavilov case by the Supreme Court of Canada has clarified that a judicial review would be analyzed under an appeal standard if the statute uses the word “appeal.” The Appeals section of this website explains this point further.
With regard to the level of evidence required to prove a case, distinctions are observed between civil and criinal proceedings. In particular, the standard of evidence is the most significant distinction. 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.
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. More recently, in Ontario, the tort of internet harassment in Kaplan v Atas in 2021 was recognized, and has also been accepted in certain other provinces in Canada as well.
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.
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.
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.
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.
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 decisions where liability of at least $2,500 is imposed, go to the Divisional Court in Ontario. Appeals of trial decisions of the Superior Court of Justice also go to the Divisional Court if the amount is of less than $50,000, and go directly to the Court of Appeal if the amount at stake exceeds $50,000.
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 insufficient 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 compensation 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 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.
In the second stage of a civil litigation matter, after service of the claim and defence, 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, 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 during discovery are designed to understand the facts and issues in dispute, rather than to conduct 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.
Parties significantly contradicting themselves within the discovery process, thus exposing their weak cases, should consider settling to prevent wasted trial resources.
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.
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 it 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.
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. However, a party must be prepared to litigate vigorously if justice demands it. We walk you through this process where a reasoned strategy is key to success.
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If there is one thing lawyers of distinction emphasize, it is the benefit of overall experience in diverse practice areas that enables one to undertake novel matters that challenge existing precedent. Law breaks new ground every now and then, but I believe this is easier done by lawyers who have substantial experience in court matters of trials and appeals.
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