Litigation (pg 29)
• Litigation - dispute resolution in court
• The risks
o time consuming
o frequently fatal to business relationships
• Litigation is therefore rare.
Who can sue and be sued? (pg 29)
• Basically, a “legal person”, i.e. an adult, or a corporation.
• Unincorporated organizations are not legal persons. Individual members must take
• The exceptional case of trade unions.
• Traditionally difficult to sue government. Today, statutory authority is required.
Class Action (pg 30)
• Allows a single person, or small group to sue on behalf of a larger group of claimants.
• Class Action Claims (pg 31)
• Most provinces have legislation:
o Issue must have commonality
o Representative plaintiff will act in interests of all members
o Preferable procedure to individual claims
• Once Court is satisfied re the above, the action (lawsuit) will be certified.
• Possible in other provinces (Western v. Dutton).
Legal Representation (pg 32)
• Self representation
o Required to complete training
o Governed by provincial law societies
o Must carry professional liability insurance
o Communications are confidential and privileged
o Traditionally, no formal training, no mandatory code of conduct, and no assurance funds
or mandatory insurance.
o 2007 Reform in Ontario: training, code of conduct, liability insurance.
o Still, confined to certain type of work and cannot work on a contingency fee basis. How a Lawsuit begins: Pleadings (pg 34)
• Pleadings are the documents that identify the issues and clarify the dispute.
• Initially, the plaintiff who begins the action prepares the statement of claim, files it with the court
and serves it on the defendant.
• The defendant then prepares a statement of defence, files it, and has it served on the plaintiff.
• This is the period of time within which an action must be started.
• Legislation has changed traditional limitation periods.
• Most claims must be started within 2 years from day on which plaintiff discovered or should
have discovered the cause of action.
• Much shorter periods to sue municipalities or the Crown.
• Late claim is generally unenforceable.
• You should get to a lawyer quickly if you think you have a cause of action.
• Statement of Claim: the plaintiff outlines dispute and states desired remedies.
• Statement of Defence: the defendant denies facts or liability.
o Counterclaim: if the defendant wants, may make claim against the plaintiff. The plaintiff
will in turn issue a statement of defence to the counterclaim.
• Reply: a response by the plaintiff to a statement of defence.
• Demand for particulars: used by either party to demand additional information.
Pre-Trial: Discovery Process (pg 36)
• Discovery of principal witnesses and documents
• Examination for discovery: conducted under oath before a court reporter.
• Eliminates the surprise element we see on TV.
• Reveals the strengths and weaknesses of claim.
• Settlement often follows.
• Pre-trial conference: judge meets with parties to summarize case
• Mandatory mediation program (Ontario)
• Settlement: parties avoid trial by agreeing to resolution
Trial (pg 36)
• In Canada, jury trials are not common for civil cases. If used, jury is confined to deciding issues
of fact and the judge makes decisions on the law.
• Evidence is heard from witnesses – ordinary or expert, and only in trial courts.
• Rules of evidence ensure that unreliable evidence is excluded, e.g. hearsay evidence.
• Burden of proof in civil cases is a “balance of probabilities”, unlike criminal cases where it is
“beyond a reasonable doubt”. So you won: Remedy (pg 37)
• Potential remedies: compensatory damages, punitive damages, nomin