Steps in a Legal Action in Ontario
Many people are shocked to learn that Ontario civil court actions may take anywhere from eighteen months to five years or more before completion. Why so long? Clearly, the steps in a legal action in Ontario's Superior Court are complex and time consuming.
This article will provide you with a brief overview of the steps in a legal action in Ontario, specifically civil court actions in the Superior Court of Ontario where damages are expected to exceed $75,000. Such actions may include motor vehicle claims, contract disputes, slip and falls, disability insurance claims, and medical malpractice claims among many others.
The lawyer will determine at the initial contact whether he or she will proceed with the case, need more information before confirming he will act, or will not take the case. There are many reasons a lawyer may not take your case. For instance, the quantum of damages may be too low, the costs of litigating the case may be too high, you have passed the time (limitation period) to commence legal action, or the lawyer does not have experience in your type of case. If the lawyer decides to take your case he will require that you sign authorizations to enable the law firm to gather necessary medical and income information to commence your case. In addition, the lawyer may request that you sign a retainer agreement, which sets out the fees to be charged
Starting the Court Action:
After the initial meeting, the next steps in a legal action in Ontario include starting the court action. After sufficient information has been collected the lawyer will be able to determine the best claims to be made on your behalf. The lawyer may send a demand letter to the person you intend to sue. Negotiations for settlement may begin at this time. However, your matter is unlikely to resolve at this stage.
Therefore, the lawyer will issue a Statement of Claim with the court. The statement of claim is a formal document that states the amount of compensation you are seeking, from whom you are seeking compensation, describes the incident that led to your injury, outlines your injuries, and sets out reasons that the defendant (the person you have sued) should be responsible to pay you. The drafting of your Statement of Claim may involve intensive research by the lawyer depending on the nature of your claim.
It is important to know that prior to issuing a Statement of Claim in a medical malpractice action your lawyer may require an expert medical opinion confirming that your injuries are the result of medical negligence.
After the defendant has been served with the Statement of Claim he has a limited period of time to file a Statement of Defense in the courts. The Statement of Defense sets out potential defenses to your Statement of Claim. If the defendant fails to file a Statement of Defense, you may seek default judgment against the defendant at this time.
Exchange of Documents:
All documents in your possession that relate to your legal action must be produced to the defendant. Likewise, the defendant must produce to you all information in his or her possession relating to the action. This disclosure of documentation is done by way of an exchange of Affidavit of Documents. The collection of such documentation can take a significant amount of time because lawyers often must rely on third parties (such as doctors, police, and government bodies) to produce the information. Some documents are obtainable only after application pursuant to the Freedom of Information and Protection of Privacy Act. Documents include any written documents, receipts, electronic document or recording, photographs, journals, letters (except correspondence to and from your lawyer), x-rays, films, MRIs, sound recordings, video recordings, pictures, drawings, relevant Facebook and social media posts, etc.
Examinations for Discovery:
Examinations for discovery (or simply, discoveries) are the next steps in a legal action in Ontario. Discoveries provide your lawyer with an opportunity to question the defendant, under oath, about the incident and all matters that are relevant to the incident that led to your injuries. Conversely, the defendant's lawyer will have the opportunity to question you, under oath, about the relevant issues in your claim. The defendant's lawyer may ask you questions regarding anything that is relevant to your claim including questions you may find embarrassing such as medical history, financial history, and family history. Your lawyer will help you prepare for such questions in advance of your examination for discovery. Your lawyer will advise you to listen to the question asked and answer only the question asked. Your lawyer will teach you that discoveries are not an opportunity to "tell your story"
Almost certainly you will be requested to give undertakings at your examination for discovery. An undertaking is your promise to provide those things that the opposing party's lawyer has requested of you such as further documentation or witness names with contact information. Your lawyer may need you to sign further authorizations for release of information at this time.
Discoveries provide both sides of an action with the opportunity to assess the strengths and weaknesses of their own case and the case of the opponent. Therefore, offers to settle are sometimes made after discoveries. Your lawyer will advise you of all offers that are made.
The next steps in a legal action in Ontario include gathering expert assessments. Now the push will be on to 'build your case'. In other words, evidence must be gathered that will support your claims. Often such evidence is only reliable if it is "expert evidence". Experts include professionals who have extensive experience with issues that are important to your case. Your lawyer will choose which experts will conduct your assessments. Expert assessments may be conducted by doctors, specialists, psychologists, physiotherapists, chiropractors, occupational therapists, accountants, or any other professional that is an expert in a matter relevant to your case.
Once the defendant's lawyer has been served with your expert reports, you may be requested to attend assessments with defense experts. Often the plaintiff experts and the defense experts have conflicting opinions.
On occasion, your own experts are not able to provide opinions supportive of your case. It is at this stage that you learn your case may not be as strong as initially contemplated. Your lawyer will advise you how to proceed should he or she not be able to obtain a supportive expert opinion.
Trial Scheduling Court:
Your lawyer will be requested to attend trial scheduling court to request a date for trial. In some regions of Ontario lengthy trials occur during "sittings", which are the only times of year during which trials are heard. In other jurisdictions, trial dates are set at any time of year.
The next stage in your action is usually a pre-trial. The lawyers prepare extensive pre-trial memorandums that are filed with the court and reviewed by the pre-trial judge. The judge will meet with the lawyers to determine if there is any way to resolve this matter without going to trial. A judge may provide the lawyers with his / her ideas of the value of the case in an attempt to encourage settlement. Occasionally issues for trial are narrowed down with the assistance of the judge. Your presence at the pre-trial is not required.
Mediation and Settlement Meetings:
Mediation and Settlement meetings are the next steps in a legal action in Ontario
Mediation: Mediation is an informal process wherein the plaintiff's case and the defendant's case are presented to a neutral mediator who assists the parties in coming to a voluntary settlement. Some mediators are ex-judges and others are lawyers with extensive litigation experience in various types of cases. A mediator cannot force you to settle but merely helps you to understand the strengths and weaknesses of your case in an attempt to help you settle.
Prior to mediation the mediator will have received and reviewed an extensive mediation memorandum from your lawyer describing the issues in your case, evidence you will be relying on at trial, and the quantum of damages that you seek. The defendant will also provide their mediation memorandum.
You will usually be required to attend the mediation with your lawyer. The defendant or the defendant's insurer will attend with the defendant's lawyer. Opening statements are given to the mediator by lawyers for both parties. Opening statements may include verbal statements, video recordings, medical illustrations, or any other compelling evidence that the lawyer may intend to produce at trial. Occasionally, you may be requested to speak to give a brief outline of the ways in which the injuries have affected your life.
Following opening statements you and your lawyer will be separated from the defendant and his lawyer by being placed in a "break-out room". You will likely remain here for the rest of the day and the mediator will go back and forth between the rooms with offers and creative suggestions for settlement.
Settlement Meetings: Your lawyer and opposing counsel may believe that they are able to settle the case without third party assistance. If this is the case, the lawyers will often set up settlement meetings that may or may not require your presence.
Occasionally, settlement meetings merely take the form of a phone call between lawyers. Often this happens after one party makes a formal offer to settle.
In the event that your case settles, you cannot expect immediate payment of settlement funds. There are releases to be signed and court orders to obtain before settlement funds will be forwarded. In addition, the Law Society of Upper Canada requires that funds be held in a lawyer's trust account until the settlement cheque clears the bank. Usually you can expect your lawyer to hold the settlement funds in his trust account for at least seven days before disbursing funds to you.
Occasionally there will be a matter during the course of your case that requires a judge's order. The reasons for motions are endless and can be brought by either party at any stage of the law suit. Motions can involve extensive documentation and often require an appearance in court by your lawyer.
An example of a necessary motion would be for court approval of an infant settlement. The Rules of Civil Procedure require that court approve any settlement when a child is the plaintiff in an action. In order to get such approval the lawyer must bring a motion before the court and produce evidence that the settlement is in the best interest of the child.
Trial:Civil trials may be heard in front of a jury of six persons or in front of a judge alone. Trials are often very complex and lengthy. Your lawyer may or may not require you to be present for the entire trial.
In civil actions, it is the plaintiff that must prove his or her case on the balance of probabilities. It is the plaintiff's responsibility to prove both liability (who is responsible for the alleged injuries) and damages (how much money you should receive to compensate you for your injuries). Often multiple witnesses must give evidence in support of your position at the trial.
At the end of the trial the jury (or the judge if the case has proceeded with a judge alone) will decide on liability and then the quantum of damages. The judge will write the order. Usually, where an insurance company has defended on behalf of the defendant, you will receive the money pursuant to the court order within weeks of the completion of the trial. If an insurance company has not defended on behalf of the defendant, your lawyer may have to take many time consuming steps to get the defendant to pay.
Occasionally decisions reached at trial are appealed. Both the plaintiff and the defendant have rights to appeal. There are strict timelines for filing an appeal or the right to appeal is lost.
In the event of an appeal, you can expect a significant length of time to lapse before a final decision is reached in your matter. Even if you have won at trial, you will not receive any money for your damages until you are also successful at the appeal.
It is clear that law suits are complex. There are many steps in a legal action in Ontario. It is often the complexity of the case, both from a liability and damages perspective, that determines how long a case will take to complete. It is unrealistic to expect any personal injury case to be completed in short order.
Unfortunately, because injuries often prevent a plaintiff from maintaining employment, a plaintiff can experience serious financial issues until the case is complete and damages are paid by the defendant. Lawyers are sympathetic to these financial hardships and, therefore, attempt to process cases as expeditiously as possible. Also in an attempt to ease financial burdens, personal injury lawyers will often fund certain cases up front and agree to payment of fees after the successful completion of a court action.
Despite the difficulties you may encounter as a result of the length of time it may to complete your legal action, you are encouraged to focus on your recovery from injury and allow your lawyer to worry about the details of your case.