Civil Litigation Chapter 1

Third-Party Claim

A claim by a defendant against someone in addition to the persons the plaintiff has already sued.

1. Start an Action - by issuing a Statement of Claim; 2. Start an Application - by issuing a Notice of Application.

There are two ways for a Plaintiff to commence proceedings (in civil matters), they are:

Proportionality

They are also expected under Rule 29.2 to consider and apply the concept of ___________ to the discovery process as a contact on the process becoming more complicated and expensive than is warranted by the nature of the case and what is at stake for the parties.

The Superior Court

To bring some consistency and uniformity to practice direction, the power to authorize and approve a regional practice is vesting in the Chief Justice of which Court?

Damages

compensation awarded by the Court for harm done

Cause of Action (def)

Legal right to sue to obtain legal remedy

Judge, Master

A _______ or in some cases a junior judicial officer called a _______, will hear submissions from counsel on a motion, read submitted material and decided the issue by making an order.

Motion

A ________ is a proceeding brought within the main action to settle a procedural issue that has arisen at the pre-Trial stage.

deposit

A lawyer may also ask a client to pay a _____ to be applied to future fees and disbursements. This ______ is also called a Retainer

Substituted Service

A type of service in which the summons and complaint are delivered to the defendant's agent, mailed, or published in a newspaper

1. Do nothing (really only if the Defendant is Judgment-proof) 2. Bring a Motion to dismiss on the ground that the claim discloses no known cause of action or that it is frivolous and vexatious or an abuse of court 3. Serve and file a Statement of Defence.

After reviewing the SOC, the lawyer (or lawyers) for the Defendants may advise of one of three possible responses:

Court Reporter or Stenographer

Other than the Lawyers and Planitffs and Defendants, who else is present at an Examination for Discovery?

Disbursements

Amounts lawyers pay on behalf of clients to third parties that lawyers can recover from clients.

In an Application, the trial is more like a hearing without oral evidence. The lawyers spend time on legal arguments, with the evidence introduced through the use of sworn written statements called affidavits An action is largely devoted to to giving the parties the opportunity to review evidence and determine facts before trial.

An action has a much longer and more complex pre-trial procedure than an application, why?

legal privilege (ex. lawyer-client privilege)

An exception to the disclosure rules exists with respect to documents for which s party claims ________ ________

an Award of Costs

As a successful litigant, the Plaintiff will receive monetary compensation called damages. The Plaintiff will also recover some of her legal fees and disbursements for the Defendants because a Judgment usually gives a successful litigant an order for payment of some legal costs. What is this called?

copying on a copy of the SOC the information the Court Clerk has put on the original.

As the Registrar is issuing the SOC, the lawyer's clerk makes a True Copy, of the SOC by

be admitted

Because a party can only introduce evidence relevant to the facts as pleaded, evidence relating to facts that were not pleaded but should have been pleaded cannot

2003

Contingency Fees have been permitted in Ontario since ____, but have been long permitted in most other Canadian Provinces and the United States.

True Copy

Copy of an original document that is like the original in every particular way, including copies of alterations signatures and Court file numbers; signatures or other handwritten parts of the original are usually inside quotation marks on the copy.

listed

Documents or reports prepared specifically because of the litigation are also privliaged and need not be produced. If privilage claimed for a document, it must be _______ but does not have to be produced at Trial.

Choice of Forum

Even within Ontario, there can be issues of territorial jurisdiction that may arise as a result of the Plaintiff's choice of place to sue, also referred to as ____ __ _____

Affidavit of Documents

Following the creation of a Discovery Plan, each party is to prepare an ___________ __ __________ in which each party discloses under oath the identity and nature of every document they now have or had previously that might be relevant to the action.

1. hiring of a lawyer; 2. preliminary investigations and research; 3. commencement of proceedings; 4. exchange of proceedings ( Statement of Claim and Statement of Defence) 5. Examinations for Discovery of the parties, Discovery of Documents and, where relevant, other forms of Discovery; 6. Motions to determine Pre-Trial issues; 7. Trials; and 8. Appeals

Generally, Civil proceedings can be divided into the following stages:

1. Recommendation from friends or family; 2. Contact the lawyer referral service at the Law Society of Ontario; or 3. Check the Ontario Court of Justice Website for information about hiring a lawyer

How does one go about choosing a lawyer?

$229 (if over $6,000) and $99 ( if under $6,000)

How much does it cost to issue a Statement of Claim?

By serving a Statement of Defence

How must the Defendants respond to the SOC once properly served?

produced

However, where a document is not privileged it must be listed in the AOD and

start all over from the beginning with added expense and delay. Therefore it is important that the Plaintiff have proof that the Defendant was properly served.

If a Defendant claims he or she was not served with an originating process, and has been sued or a Judgment has been obtained, they may move to set aside the proceeding or set aside the Judgment. If successful the plaintiff may have to

lost

If a party decides to waive the privilege and rely on document for the party's own case at Trial, then the privilege is _____, and the document must be disclosed.

undertake

If a party does not know the answer to a question, they may _____ to provide an answer or produce a document later.

Counterclaim (plaintiff)

If either Defendant can argue that the Plaintiff acted in some way to cause them a legal recognizable injury, the Defendant can file a ___________ with the Statement of Defence. The Plaintiff would then have to respond with their own Defence to _________.

Crossclaim

If one Defendant has a claim against the other Defendant in an action, that is related to the events or transactions of the main action, the defendant with the claim should file a _________ against the other Defendant.

handed directly to them

If the Defendant is an individual, personal service means that the SOC must be __________________. Service is effective even if they refuse to take the document, tears it up or throws it away.

Trial

If the Mediation is not successful, the mediator reports so and the matter proceeds to, what?

Mandatory Mediation

If the Plaintiff brings their case in Toronto, Ottawa or the County of Essec (Windsor) or transfers it there from another County or region (unless a court orders otherwise or the exemptions set out in Rule 24.1) the parties are required to participate in a, what?

Reply

If the Plaintiff finds the Statement of Defence raised an issue or facts related to that issue that were not dealt with in the Statement of Claim, the Plaintiff may serve and file a _____ to the Statement of Defence. If the Plaintiff simply wishes to deny the Defendant's Defence, there is no need to serve and file a _____.

any party

If the Plaintiff's choice of Forum is much more inconvenient to other parties than to her, or it is impossible to get a fair trial in a chosen county, __________ may apply to the Court to have the case transferred to another County or Region.

on a Motion

If the parties cannot come to an agreement on a Discovery Plan, ___________, the Court can, as of January 2019, impose a Discovery Plan including the scheduling of examinations, with limits on Discovery rights under Rule 29.1(2)

backsheet

If the there are many Defendants or Plaintiffs, the case is generally referred to by the short title of proceedings, used on the __________ of Court forms.

evidence

If there is cause of action, the lawyer must then consider whether there is sufficient _______________ to prove the facts.

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If time is running out to serve a Statement of Defence, a party can serve a Notice of Intent to Defend, which provides them an extra __ days for filing.

Balance of Probabilities

In Civil Litigation, the Plaintiff is obliged to make out a case and prove each factual and legal element on the _________ __ _________. This means that if the Plaintiff is successful , their version is more likely than not, the correct version.

Plaintiff

In a Civil Case, the burden of proof is on the _______, who is obliged to prove their case on the balance of probabilities that their version of the case is true. The _________ establishes their version if the facts through evidence.

beyond a reasonable doubt

In criminal cases, the accused is presumed innocent , unless the crown can prove its case ______ _ _______ ____, a much higher standard of proof and a much greater burden for the Crown to bear.

contract

In general, Courts in Ontario have territorial jurisdiction over cases where the event given rise to the lawsuit took place in Ontario or if the parties agreed to give Ontario Jurisdiction as a term in a

1. Jurisdiction over Subject Matter; 2. Jurisdiction over the monetary amount claimed in a lawsuit; 3. Territorial Jurisdiction;

In order to decide which Court a Plaintiff should sue in, it is necessary to understand the basis for a Court's Jurisdiction - its power to hear a case and grant remedies. There are three types of Jurisdiction:

trier of fact

In the end, the evidence must lead the ________ ___ ____ to conclude that is more probable than not that the facts set out by the client are correct. To put it another way, the facts are conclusions that can be drawn by assessing the evidence.

Balance of Convenience

Is a practical fact-based test in which the Court examines how difficult, expensive oor time-consuming it is for the parties to try a case in one location rather than another. If the Plaintiff has chosen a location, a Defendant who wishes to change the location needs to show that he or she is at a great disadvantage because of where the witnesses live, travel costs and similar matters,

consent

It is now also possible to serve documents on other parties by email or by use of an electronic document exchange under the Rules 16.01(4)(b), 16.05 and 16.06.1(1) but both the party serving and the party served must _______ to either mode of electronic service

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Now that the SOC is issued the Plaintiff must serve a copy of the SOC on the Defendant(s) within ____ months from the date on which the claim was issued. Because the Defendants may not know that they have been sued until they are served with the first document in the lawsuit against them, the Rules are strict about ensuring that they are properly served with the first or originating document.

Motion to Compel

On a lawyer's advice, the party either accpts to rejects the undertaking. If the undertaking is rejected , the party asking the question may bring a ______ __ ______ the other parry to re-attend at their own expense to answer the question, provided that the Judge on the Motion agrees that the question is a proper question.

Proved

Once a Rply has been made to every Defence filed, or the time for replying has expired, the pleading stage is complete. Facts that are admitted do not have to be proved at Trial. Facts that are not admitted must be ________.

Retainer

Once a choice of lawyer is made, one should formally engage the lawyer's services by signing a __________. A __________, is a contract between a lawyer and a client that sets out a description of the work to be done by the lawyer and the terms and conditions for the payment of FEES and DISBURSMENTS by the client.

Cause of Action

Once a person has obtained a lawyer, they will be interviewed at some length by the lawyer or law clerk to determine the facts of the case, who the witnesses are, and who the other parties are. From this information, the lawyer has to decide if the client has a good _____ __ ______ or not.

1. Mailing a copy to the opposites party's law firm ( deemed delivered after fifth day) 2. By physically delivering a copy to lawyer's office and leaving it with an employee; 3. by depositing a copy at a document exchange of which the lawyer is a member if the copy is dated-stamped as received by the document exchange (this is deemed to be served on the dat after the document exchange receives it); 4. By faxing a copy to the lawyers office, including a cover sheet setting out info that the documents is being served by fax and showing who served it (not all documents may be faxed however); 5. by sending it the lawyer's office by Courier( deemed to be served two days later) 6. by emailing a document to a lawyers office, provided that the sender indicates in the email message who they are and provided that the lawyer served in this way emails back an acceptance of the document served ( this is deemed to be accepted on the following day the message is sent.

Once service of the originating process is complete, service of subsequent documents are more relaxed. Ways in which you can subsequently service are:

General Heading

Once the SOC is issued, all further filed documents must bear the appropriate _____ ____ identifying the Court, the Court file number and the names of the Parties

Registrar

Once the SOC is ready, it is taken to the local office of the Superior Court to be issued. After paying the prescribed fees for issuance of the claim, the ________ opens a Court file, assigns the claim a Court file number (placed on documents) and issues the SOC by sealing and signing the document on behalf of the ___________ of the Court.

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Once the documentary discovery has taken place, the parties, following the Discovery Plan, usually arrange for an Oral Examination for Discovery. Here, each party's lawyer is entitled up to _ hours to question the other parties, under oath, about the case, the Statement of Defence, and the documents disclosed in the discovery of documents process

Viva Voce Evidence

Oral Evidence

Fees

Payment to lawyers for services rendered

Affidavit of Service

Proof of Service of the SOC (and subsequent documents) usually consists of an ______ __ _______, in which the person who served the document swears that they did so and describes the method of service, the date and other details.

practice directions

Rule 1.07 provides a procedure for creating ________ ____. A _____ _______ carries the force of the law and must be followed.

Injunction

Small Claims Court does not have the ability to grant what remedy?

commenced

The Plaintiff's case will be tried in the county or region where it was _________, unless the Court orders otherwise

Discovery Plan

The Rules now require that all parties meet and confer a the earliest opportunity to discuss the nature and extent of Discovery and create a ______ in writing under Rule 29.1, setting out the scope of discovery, dates for service of Affidavit of Documents, information on the cost, timing and mode of production of documents, names of persons to be produced on Discovery and the length and time of examinations.

Courts of Justice Act (R.S.O 1990 c. C.43)

The Rules of Civil Procedure are actualy regulations made pursuant to the _______ __ ________ ___

personally. alternative to personal service.

The SOC must be served _____________ on the Defendants or must be served by a permitted a

Regional Senior Judge

The ____ ___ ____ may create a practice direction for the region. This allows the ____ ____ in a judicial region to customize the application of the rules and create additional procedures to deal with problem that are specific to that region and are not covered by existing rules

1.04(1.1)

The concept of proportionality set out of generically for proceedings in Rule ________ is set out in Rule 29.2, to be used on any motions concerning Discovery

1. Who is liable or at fault; and 2. How much is to be paid to compensate the Plaintiff for the damage done.

The facts, and the evidence that proves those facts, focus on two issues, they are:

180

The first Mediation session must be held within _____ days of the filing of the first Defence.

1. Discovery of Documents; and 2. Oral Examination for Discovery

The main types of Discovery used i almost ever Civil case are, what two things?

Title of Proceedings

The names of the parties and the status in which they are suing or being sued that appears within the General Heading is referred to as the _____ __ _________

Counterclaim

The recipient of a crossclaim may ______ against the crossclaim or serve and file a Defence to _______. A __________ is not dependent on the main action but is usually tried with it.

document

The term "__________" is given a broad interpretation and may include digital files, computer disks and thumb drives, audio and video tapes, photographs, and other media of communication.

Testimonial Evidence Documentary and demonstrative evidence Physical Evidence Expert Evidence

There are four main types of evidence, what are they?

A manager or to a Director or Officer of the Corp Defendant

There are special rules for serving individuals on behalf of a corp. Here a process server can seve the corporate defendant by handing a copy of the SOC to who?

1. if the Party has a lawyer, the Plaintiff can serve the lawyer's office provided that they sign a document stating that they accept service on behalf of the Defendants; 2. Send a copy of the Claim to the Defendant's last known address by ordinary mail with an acknowledgement receipt form (Prescribed by the ROCP). Service is vailed as of the date of serve if the form is returned by the recipient. 3. If the Process Server attempted personal service, you can deliver the SOC in an envelope to the Defendant's Residence and leave it with an apparently adult person who appeared to be a member of the household and then mail a copy to the Defendant the next dat. - this only applies when serving an individual

There are three alternatives to personal service, what are they?

20 days if they are in Ontario 40 days if they are outside of Ontario or in the continental United States 60 days if they are anywhere else in the world

What are the time limits for serving and filing a Statement of Defence?

1. The remedies the Plaintiff is asking for - referred to as the "Claim for Relief" 2. The identification of the Parties in terms of their legal status; and 3. The facts on which the Plaintiff relies, as well as statements of the laws that entitle them to a remedy.

What does a Statment of Claim set out?

about the case, the Statement of Defence (or SOC), and the documents disclosed in the discovery of documents

What is each party's lawyer allowed to question about during Discoveries?

Orders for the return of personal property and payment of money

What is the SSC orders limited to?

To restore a person to the position that he or she was in prior to the harm being done - to the extent that the payment of money damages can accomplish this.

What is the general goal of Civil Litigation?

To punish wrongdoing and maintain public order, usually by the imposition of fines payable to the Crown (and not the person harmed, although in some cases the criminal may be ordered to pay restitution), or by the imposition of terms of imprisonment

What is the goal of Criminal Litigation?

In Criminal Litigation, The criminally accused is presumed innocent and the Crown is obliged to provide its case on its own and is not permitted to extract information from the accused In Civil Litigation both parties are obliged to make full disclosure of everything that is relevant to the issues in the dispute, both helpful and harmful

What is the major difference in terms of the procedure between Criminal and Civil Litigation?

$35,000.00 (as of January 2020)

What is the maximum that can be claimed in the SSC?

1. Admit the those paragraphs in the SOC with which they agree; 2. Deny those paragraphs which they disagree; 3. Then, if applicable, must identify those paragraphs in the claim about which they have no knowledge; 4.Set out their own version of the facts and law that they rely on ( also known as affirmative Defence)

What must be present in a Statement of Defence?

Applications are used when a statute or the Rules require them, or when it is unlikely that there will be any material facts in dispute and the matter turns on an interpretation of law. Otherwise, a Plaintiff must proceed by way of an Action.

When are Applications used?

2018

When did the Superior Court of Justice allow parties to file and issue many Court documents online?

Information for Court Use

When filing the Statement of Claim (physically only - not electronically) a ___________ ___ ______ ___ form must be filed which provides the Court with information about the causes of action and whether the case is using any special procedure.

To preserve a client's rights before the limitation period expires. The Notice of Action will start the lawsuit and "stop the clock" on the soon to expire limitation period

Why would a lawyer issue a Notice of Action before a Statement of Claim?

Judgment-Proof

a Party against whom a Judgment would be ineffective as the party has no assets against which the Judgment could be enforced

contigency fee

fee payable to a lawyer only if they win the case for a client; usually a percentage of the Judgment only if they win the case.

trier of fact (def)

judge or jury whose job is to determine the facts of the case from evidence

backsheet (def)

part of every court document, it contains the name, LSO number, address, email, telephone and fax numbers of the lawyer who prepared the document, the short title of proceedings, the Court file number, the fax number and telephone number of the person to be served (if known) and a large space reserved for Court Officials to make entries on

Chief Justice

practice directions for the Court of Appeal may be created by the _____ ______of that Court and the _____ _______ of the Superior Court to cover the Superior Court generally.

Principle of Proportionality

requires that the time spent on and the expense of a lawsuit be in proportion to the value of the case that is at stake for the parties.