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Civil Litigation is aptly described as not being a tea party. Rather than placing reliance on “might is right”, rules of procedure were seen to be required to promote the orderly ways of settling disputes between persons. The practice of civil litigation in Ontario is regulated by the Rules of Civil Procedure. Every Canadian Province has its Rules, and they are very similar. These rules are easily located on the internet and immediately they are not seen as being for the faint of heart. I continue to learn as the rules evolve and as the Rules Committee makes the changes necessary to adapt the Rules to the realities of modern-day litigation, access to Justice, conservation of Judicial resources, proportionality, all of which are very important themes. Proportionality is a competition between alternatives. It is not a buzz word that is spouted out at every opportunity leaving the listener to rely on their own experience to give meaning to the use of the words in the context in which they are used.
In money matters, in Ontario, the amount of money involved in the dispute dictates what court you can use to initiate your claim. When I started to practice, the monetary limit of the small claims court was maximized at $2,000.00. Right now, in Ontario claims up to $35,000.00 are issued in the Small Claims Court. The next level of court in the Simplified Rules Process for claims between $35,000.00 and $200,000.00. For claims above $200,000.00, the Superior Court of Justice is the court mandated by the Rules. Not surprisingly, there are penalties for issuing in the wrong court. This usually happens when a party seeks to avoid the small claims court in favour of the simplified rules, or to avoid the simplified rules in favour of the Superior Court. The small claims court is best suited for self-represented parties but as the amount of the claim increases, so does the complexity of the court assigned to decide the claim and the suitability for self-representation decreases. There is no automatic examination for discovery in the Small Claims Court and the Simplified Rules. Only in the Superior Court can one be guaranteed a right to examine the other party for discovery. In practical terms, what the lack of discovery means is that your case will be decided on the documents and oral evidence you can muster. The fishing expedition is only available in the Superior Court and currently the maximum time allowed without asking the court for more time, is 7 hours. The small claims court is the least expensive to have a dispute decided; then come the Simplified Rules in the Superior Court; then the Superior Court. Lawyers are not required in any of the three courts unless one of the parties is a corporation that must be represented by a lawyer. In general terms, the expense to litigate a dispute increases as the amount of money in dispute increases.
There are many situations where the choice of court is mandated by the rules or by a statute or by the common law. Often these situations are not tied to the amount of the claim. Certain relief can only be obtained in certain courts.
I wanted to give you a taste of the complicated decisions that must be made and the expense involved in implementing some of the decisions. There is much more than I have outlined above to the world of civil litigation. What I recommend to you is to seek out a lawyer who will discuss your situation with you, often on the phone first time around, and if there is suspected merit to your claim and there are no barriers such as language or location or lack of congeniality, often you will be invited to come into the office, or to send your documents to the lawyer to be reviewed further when the lawyer has time to take a look. At that time, you will likely be advised of the lawyer’s initial impression of the strength of your case and there will often be an invitation to meet with the lawyer in person to go over the situation in a more formal setting than on the telephone. You will then receive a better idea of how much work is involved, your role, many of the factors I have already raised and if the claim has merit and you can afford the fees, then your journey will begin, but it will not be a holiday. Even the most compelling cases can be reduced to nothing with just a few changes in the facts. If you issue a claim, one should never make any serious decisions about outcome until the statement of defence has been received and then your lawyer will have a much better idea of the future of your claim, the cost to you, and the possibility of success. If you do not have a lawyer, you will probably not be able to fully appreciate what the pleadings are saying to you.
My recommendation is to try and resolve your difficulties before going to court which I agree may not be possible but try. I realize that there are circumstances that mandate that you issue against the defendants immediately to preserve a limitation period or to prevent the liquidation of assets or the removal of assets from the jurisdiction of the court. You cannot obtain an order to freeze a bank account unless the reasons for the freezing are relevant to the issues at hand. However, once the pleadings have become part of the process, the next best step is to reconsider your alternatives and your ability to pay for them. If you are a plaintiff or a defendant, you want to give serious consideration to mediation and arbitration as alternatives methods of resolving disputes. You will in almost every case need a lawyer to help you but be warned, the courts are looking for ways to make going to court not a very attractive choice. Rightly so. The backlog of litigation is immense in Ontario. Some of our courts are the busiest in the entire world. The courts can no longer offer us the full panoply of services they were designed to provide, and the rules contemplate. We must become masters at the art of the deal, always with the threat of going to court driving the process.
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