What is litigation?
Litigation is a legal dispute between two (or more) parties. One party (the plaintiff) claims that they have suffered some sort of injury or loss, that the other party (the defendant) is responsible for. As a result, the plaintiff seeks some form of compensation (damages) from the defendant.
What do the first steps of litigation look like?
After an initial meeting, next steps typically involve gathering information and documents to develop a clearer picture of a potential claim. Sometimes, such as in a claim for personal injury, these documents are in the possession of health care providers, which the law firm requests on the client’s behalf. Depending on the type of claim, the lawyer may start by writing a letter to the other side in order to attempt to resolve the matter before commencing a lawsuit.
How does a plaintiff start a lawsuit?
In order to commence a claim, the plaintiff’s lawyer issues a document at the courthouse called a Statement of Claim which outlines their grounds for the lawsuit. This Statement of Claim is then served on all defendants. Each defendant then has the opportunity to file a response (a Statement of Defence), which describes their version of what took place. These documents are collectively referred to as the pleadings.
What happens next?
Once pleadings have been exchanged, the process proceeds to Discoveries. In this phase, both parties attempt to learn more information about each other’s case. This typically includes both parties’ lawyers asking questions of the opposing party (so the plaintiff’s lawyer would question the defendants, and vice versa.) This is referred to as Examinations for Discovery, and takes place at a court reporter’s office. This process also includes parties exchanging any relevant documents they have with the other side.
I’ve been served with a Statement of Claim. What do I do?
This means that someone has commenced legal action against you. You should contact a lawyer as soon as possible as there is usually a limited amount of time to be able to respond to a claim before the plaintiff can take additional steps against you. Whatever you do, do not ignore it!
How long will my case take to resolve?
There really is no specific answer to this. The amount of time it will take depends on the particular set of facts surrounding the case. Some simple cases may see a quick resolution within a few months, where others may take several years.
Do all cases go to trial?
No. In fact, the vast majority of cases settle before trial.
What is a settlement?
A settlement simply means that both sides have come to an agreement about how to resolve the dispute before trial. Commonly, a settlement involves negotiation between counsel and a compromise by both sides. These settlements are often preferred over trial because both the plaintiff and defendant have a say in what the ultimate outcome will be. Further, settlements can save parties considerable expenses that would otherwise be incurred if the case went to trial.
What happens if I go to trial and lose?
Typically, the losing party is required to pay the winning party’s legal fees. If the losing party is the defendant, this is on top of any damages for which the court may have found them responsible.
How do your fees work?
Most clients bringing a personal injury claims prefer it to be handled on a contingency basis; the firm is paid a percentage of your eventual recovery amount. Contingency agreements do not include disbursements (expenses incurred on the file by the law firm). Legal work on other files (including defence matters) are performed on an hourly basis. We would discuss this in more detail during our initial meeting.
What is a Limitation Period?
In most situations, the Limitations Act in Ontario governs the amount of time a party has to start a claim. If you fail to commence your claim within that period of time, you will likely be barred from being able to recover your claim. The current law states that a party has two years to file a claim from the day the claim is discovered. There are, however, some nuances and exceptions for specific circumstances.
What is Small Claims Court?
The Small Claims Court is a branch of the Ontario Superior Court of Justice that hears claims up to $25,000. The Small Claims process mirrors the regular litigation process in several ways, but is intended to be more simple, expedient, and accessible to the public. Although many parties in Small Claims Court hire lawyers, many are also self-represented. However, oftentimes cases can be more complex than initially assumed. A lawyer will provide valuable strategic advice, ensure documents are properly drafted, and engage in negotiations with the other party.