For many companies, they have limited experience in a law suit and are overwhelmed with the unknown. I am going to discuss over my next few blog entries the different types of law suits in Ontario and how their procedures differ.
This week’s entry is “Regular Procedure” – let me start off by saying there is nothing actually called the “Regular Procedure”; however, there is something called the Simplified Procedure which I”ll address another time. Before the days of the Simplified Procedure there was just the one type of way to run a law suit and to have a point of reference I”m starting with it here.
Regular Procedure is available for all law suits that are claiming over $ 50 000.00.
A statement of claim is issued and must be served within six months of being issued.
Once served with a claim the defendant(s) must serve and file a defence within a specific period of time (20 or 40 days depending on where they are located). This can be extended an automatic 10 days by filing a Notice of Intention to Defend or longer by agreement.
The plaintiff has the option to serve a Reply within 10 days of receipt of the Defence.
The Statement of Claim, Statement of Defence and Reply are referred to as Pleadings.
Once the Pleadings are exchanged, each party must serve an affidavit of documents which is a 3 schedule listing of all documents relevant to the issues in the litigation.
The next step is examinations for discovery – these are an opportunity for each party to ask a representative of the other party questions regarding their allegations under oath. A transcript is formed from the examination and it can be used to impeach credibility at trial.
At any time during a law suit, but most frequently after discoveries, either party may bring a motion before the Court asking for an Order regarding a step in the proceedings. The most commong motion after discoveries is to ask a Court to Order a party answer a question they refused to answer on discovery.
In certain cases there is mandatory mediation required – this is an off the record meeting with a neutral party who attempts to broker a settlement of the action.
All cases have a pre-trial after discoveries are concluded. The pre-trial is an off the record meeting with a Judge who does not hear the trial of the action – the purpose of pre-trial is to narrow the issues and attempt to see if a settlement is possible.
If the matter does not settle at pre-trial, the final step is trial.
The length of time all of the above takes depends on many factors, lawyer and client schedules as well as Court schedules.
In our firm the above generally takes between 1 1/2 and 4 years to complete, depending on the jurisdiction where the trial is heard.
Next blog from me will be about the Simplified Procedure.
Inga B. Andriessen