Chapter 2 - Litigation andAlternative Dispute Resolution
The Litigation Process: Who Can Sue and Be Sued?
Who has access to the courts in Ontario? Who can be sued in an Ontario court?
• All adults, regardless of their citizenship.
• Corporations, even if they are incorporated outside of Ontario. (Remember that the law treats
corporations as legal persons for some purposes.)
• Trade unions.
• Special cases:
o Children: children can sue and be sued, but a parent or litigation guardian must represent
o Adults suffering from a mental incapacity (e.g., dementia orAlzheimer’s): they can sue
and be sued, but a litigation guardian must represent them.
- Unincorporated organizations: clubs, amateur teams, and community groups, are generally not
recognized in law as “persons” so they can’t sue or be sued as an organization
o If you want to sue a club, you must sue individual members of the club
o If members of a club wish to pursue legal action against another party, they must bring
their legal action as individuals – can’t sue in the name of the club or organization.
o Trade unions are an important exception to this rule.
- Legislation has now made it possible to sue the government under some circumstances
- Plaintiff: the person who initiates a law suit
- Defendant: the person being
- Action: The law suit as a whole
- Aclass action: allows a single person or a small group of people to bring a legal claim on
behalf of a larger group of people
o The class is the group of people on whose behalf the legal claim is brought; a class can
range in size from very small (even just two people) to very large (thousands of people). o In Ontario, the Class Proceedings Act governs class actions
o In order to bring a class action, a representative plaintiff must take steps to have the
class certified – Certification: the Court has decided to allow the claims of the
individual members of a proposed class to be joined together;
o The Class Proceeding Act states that a judge will certify a class if requirements are met:
• There is a “cause of action” (a legitimate claim recognized by the law). The
representative plaintiff doesn’t have to prove his case during the certification
phase, but must show that there is some basis in law and for the claim being
• Members of the proposed class must have common issues - the claims of class
members must involve similar (not necessarily identical) questions of fact or law.
o The class members are all suing the same defendant in relation to the
same product line or service or in relation to the defendant’s employment
o The class members all suffered the same sort of injury.
o The class members suffered different injuries, but the injuries arose from
the same incident.
- Sometimes they have diff types of injuries, but their claims still have a lot in common with each
o The class might be certified with sub-classes that divide the class members into
different sub-groups, based on the type of injury with its own rep. plaintiff - the facts of
the representative plaintiff’s case must be typical of all the members of the class
o Responsibilities of rep plaintiff:
Must have a workable plan for fairly representing the all members of the class
Must demonstrate that s/he has a workable plan to notify all potential members
of the proposed class
- People aren’t required to be part of a class action - they can sue the defendant on their own.
o In Ontario, class actions are “opt-out”, people are deemed to be included in a class
action unless they specifically opt-out – rep. should notify everyone they can opt-out
• Aclass action must be the preferable procedure for addressing the various claims
- if the members of the proposed claim don’t have enough in common or if joining the claims together would result in a complex proceeding, the judge may
not find it appropriate
- As with all legal class proceedings, someone has to pay for the costs of the action, including the
o Section 31(2) of the Class Proceedings Act – Rep. Plaintiff alone is liable for costs
related to the action; other members of the class aren’t liable for the general costs of
o Section 17(7) of the Act allows a Rep. Plaintiff to ask the court for an order that permits
him or her to ask other members to contribute to the cost of lawyers’fees and
disbursements. The Rep. isn’t entitled to any special form of compensation such as
payment for the time and effort expended on bringing the class action.
o The Class Proceedings Act also permits a lawyer to charge contingency fees in class
actions - fees that are only payable if the case is successful
The Litigation Process: Legal Representation
3 broad options for obtaining legal representation in the litigation process:
1) You can represent yourself
2) You can hire a paralegal
3) You can hire a lawyer
- In Ontario, the Law Society of Upper Canada regulates both lawyers and paralegals
o You must obtain certain credentials and meet certain requirements in order to be
licensed to practise as either a lawyer or a paralegal
o The licensing process is ensures that lawyers and paralegals are competent and remain
o Clients can sue their lawyers and paralegals for carelessness (negligence) and for
The lawyer or paralegal may not have enough money to compensate the client.
There are mechanisms in place to protect clients
Lawyers and paralegals in Ontario are required to hold professional liability
insurance - provides compensation to clients who have suffered losses as a
result of a lawyer’s or a paralegal’s carelessness
The Law Society maintains an Assurance Fund to compensate people who have
suffered losses as a result of a lawyer’s or a paralegal’s dishonest conduct. The Litigation Process: An Overview of the Life of a LegalAction
The basic steps in a legal action:
Cause of Action occurs.
• Action must be commenced within applicable limitation period
- time you have to start an action, take too long action can be initiated
• The parties exchange various filings that outline the issues that they will raise at trial and
the facts upon which they will rely.
- if not in pleading can’t bring it up in court
- limited time - wait too long, plaintiff a can move to default judgement
• Parties have the opportunity to "discover" each other's case through the exchange of
documents and pre-trial examination of witnesses, which occurs under oath. Discovery
gives the parties an opportunity to evaluate the relative strength of the other party's case
and to gauge how much the claim is really worth.
• Parties have a pre-trial conference in which they meet with a judge. The judge may give
the parties a frank assessment of which side is likely to win if the case goes to trial. This
gives the potential losing party more incentive to settle.
• In some cases, there is court-mandated mediation.
Determination of Claim
• The parties either settle or the case goes to trial. The vast majority of cases settle before
trial. • If the case goes to trial, the plaintiff must prove its case on a balance of probabilities -
every impt part of the plaintiff's claim must be shown to be more likely true than not.
(The claim must be probably true.)
• At trial, the defendant is found either liable (and responsible) or not liable. If the
defendant is held liable, the plaintiff will be awarded a remedy. The most common
remedy is compensatory damages.
Enforcing the Judgment
• If the plaintiff wins an award of damages, the defendant becomes a judgment debtor.
The plaintiff now has the difficult task of getting its money from the defendant.
• In some cases, a party may appeal all or part of a judgment. This means that the party
(called an appellant) asks a higher court to review the case and to decide if the judge
made the correct legal decision. Appeals are very different from trials.
In civil litigation, the clock is always ticking. There are rules that require that claims be made and that
various pleadings are filed in a timely way.
- Limitation Periods: the period of time within which an action must be started
o Legal claims must be made within a certain period of time or the court will not allow the
claim to proceed
o Time periods are governed by statute, can range from six days (if you want to sue a city
in tort) to 21 years (if you want to assert certain property rights).
o In Ontario, cases involving torts or breach of contract, common limitation period is two
years from the date on which the plaintiff should have become aware that s/he had a
claim against the defendant.
o If the plaintiff misses the limitation period, she still has a claim, but can’t enforce that
claim through the courts unless there are very special circumstances.
Practical perspective - the plaintiff likely won’t be able to get a remedy. Special exception applies to debts – if a debtor acknowledges a debt after the
limitation period expires, the creditor may bring an action to recover the
outstanding monies even though the limitation period has passed.
- Pleadings: There are strict limits on the time that each party has to respond to the other’s
o The failure to file your pleadings in response to the other party’s pleadings could have
o Ex. if a defendant doesn’t file a Statement of Defence on time, the plaintiff can move for
a default judgment in favour of the plaintiff
The failure to file the Statement of Defence on time is interpreted as meaning
that the defendant accepts all of the plaintiff’s allegations in the Statement of
Claim, including the allegation that the defendant is liable!
o If you are served with a statement of claim or other form of pleading, you should
immediately contact your lawyer. Don’t wait. There are serious consequences to
missing filing deadlines.
The Litigation Process: Remedies and Enforcing Judgment
- If the plaintiff wins its case at trial, the plaintiff will be entitled to a remedy
- In civil litigation, the most common remedy is compensatory damages
- Other remedies:
Remedy Description Example
Compensatory damages Pay the plaintiff money to compensate Provide an injured plaintiff with the
for the plaintiff’s loss amount he lost as a result of not being able
to work and the amount spent on medical
Punitive damages Pay the plaintiff money as a means of Punish an insurance company that made
punishing the defendant for acting very up allegations of arson in order to avoid
badly paying a benefit under an insurance policy
Nominal damages Pay the plaintiff a very small amount Recognize the right of a store that sued for
of money (e.g., $1) to recognize trespass even though the unwanted
symbolically that the defendant acted customer did not do any harm
wrongfully even though the plaintiff
did not suffer any loss
Specific performance Order the defendant to fulfill a Force a defendant who promised to sell a
contractual promise piece of land to the plaintiff to go through
***equitable remedy with the sale
Injunction Require the defendant to act in a Force the defendant to stop cutting
certain way (e.g., to do something or to through the plaintiff’s backyard or force a
stop doing something) construction company to remove its ***equitable remedy equipment from a neighbour’s property
Rescission Terminate a contract Eliminate a contract that was created by a
con artist who tricked an elderly couple
***equitable remedy into signing
- When a defendant is found liable and ordered to pay damages, the defendant becomes a
judgment debtor (b/c the defendant owes the plaintiff a debt pursuant to a judgment)
o If a judgment debtor doesn’t pay, the plaintiff has a few options
o Ex. the plaintiff can garnish the judgment debtor’s income by getting a court order that
requires the debtor’s