Civil Litigation

Determining jurisdiction is the crucial initial step in the litigation process. It involves selecting the appropriate court where a legal action should be initiated. This decision depends on various factors, including the nature of the claim and the amount in question. For instance, claims under $35,000 typically start in the small claims court, while those over $35,000 should be initiated in the Ontario Superior Court of Justice. Additionally, parties can opt for the Simplified Procedure for claims up to $200,000. Our litigation team can guide you on the appropriate jurisdiction and procedure for your case.​

Mediation is a mandatory step in the litigation process for cases initiated in certain jurisdictions in Ontario. Mediation offers parties an opportunity to resolve disputes through facilitated negotiations, overseen by a neutral mediator. While the mediator does not impose decisions, their role is to guide discussions and encourage mutually acceptable resolutions. Mediation allows parties to explore creative solutions, potentially avoiding the time and expense of a full trial. It's important to approach mediation with a prepared mediation brief that outlines the issues and positions, promoting productive discussions.​

The simplified procedure in the Superior Court of Justice may apply to those matters where the claim for damages is between $25,000 and $100,000. The simplified procedure must be used in a civil action if, the claim being made is only for money, real property or personal property and the total amount of the claim is $100,000 or less exclusive of interest and costs. There are particular types of cases that should not be brought under the simplified procedure, such as class proceedings, construction lien actions, case managed actions, family law actions, and small claims court actions and applications. If the matter should have been started under the simplified procedure and a court later determines this, the individual bringing the claim may not be awarded costs. It is possible to transfer the claim from the ordinary process to the simplified procedure by filing and serving form 76A.

The individual who has been harmed (otherwise known as the “plaintiff”) must prepare a statement a claim. The statement of claim describes the facts and the legal reasons that the plaintiff says they are entitled to in the form of compensation from the other person (otherwise known as the “defendant”). It is essential to file and serve the statement of claim before the applicable limitation period expires. If it is not possible for the plaintiff to issue the statement of claim within the limitation period, the plaintiff can issue a notice of action within the applicable limitation period. The plaintiff has an additional period of time within which to file the statement of claim.

A defendant must serve the plaintiff with a statement of defense within a specific period of time. The statement of defense sets out the reasons that the defendant says they should not have to compensate the plaintiff. If the defendant has a claim against the plaintiff (which is referred to as a counterclaim) this will be included in the same document as the statement of defense. If the defendant finds they are unable to serve the plaintiff in the allotted time provided by the law, they can give the plaintiff a notice of intent to defend, this will provide the defendant with additional time to deliver the statement of defense. Should a defendant fail to file their statement of defense in the allotted time period the plaintiff may obtain default judgment.

The basic limitation period (the time during which an action may be commenced in Ontario) is two years from the earlier of the day on which the essential elements (act or omission by a known person resulting in damages to the claimant) of the claim are known to the claimant and the day on which they are discoverable. There is a rebuttable presumption that a claimant discovered all the essential elements of the claim on the day on which the act or omission giving rise to the subject loss or damaged occurred. In addition to the basic limitation period there is an ultimate limitation period of 15 years from the day on which the act or omission takes place, regardless of whether the essential elements of the claim become known to the claimant or were discoverable during the 15 year period and whether any other limitation period has not run.

In small claims court, an individual may sue for money or the return of personal property valued at $25,000 or less, not including interest and costs. To sue a person or a business in small claims court, the claim must be either claims for money owed under an agreement such as unpaid accounts for goods or services sold and delivered or claims for damages such as property damage. Should an individual want to sue for an amount that is over $25,000 then they will have to start their case in the Superior Court of Justice.

Mediation is a method used to settle disputes or lawsuits outside of normal court proceedings. In this process, a neutral third party (the mediator) will assist the disputing parties find a solution that works for both parties. Mediators do not decide cases nor do they impose settlements upon the parties, rather their role is to help both parties involved in the dispute to communicate and negotiate with each other in a constructive manner and to find a resolution based on common understanding rather than winning and losing. Mediation can be beneficial because it can help the parties save both the time of a long court battle and money. Mediation offers the opportunity to the parties to craft a solution that best meets their needs. For all actions started in Toronto, Ottawa and Essex parties are required to participate in a mediation session within 180 days of the first statement of defense being served.

A motion is a request to the court for an order in some preliminary (also referred to as interlocutory) issue in the case and can be brought at any stage of the proceedings. Any party to a case may bring a motion. Motions are heard by judges or masters as both are judicial officers of the court. Common types of motions include: extending time to file a statement of claim or statement of defense; requiring production of documents related to the case; allowing for the statement of claim or statement of defense to be amended etc. In order to bring a motion a motion record must be prepared that includes a notice of motion, a request to the court, and a sworn affidavit detailing the facts and evidence on which the party intends to rely.

If the parties cannot come to an agreement through mediation, they can set the matter down for trial. However, within 90 days of doing so, a pretrial conference must be held, where a judge will assist the parties in arriving at a settlement. The parties are encouraged to make reasonable offers to settle, and if they don’t, or one party refuses a reasonable offer to settle, there may consequences in the form of costs.