Ch. 2 Litigation and Alternative Dispute Resolution (TEXT PG: 28)
The Litigation Process: Who can Sue and be Sued? (TEXT PG: 29)
• All adults regardless of citizenship
• Corporations - even when incorporated outside of Ontario
• Trade Unions
• Special Cases: MUST BE REPRESENTED BY A PARENT, LEGAL GUARDIAN OR
o Adults suffering from mental incapacity
PLAINTIFF - the person who initiates the lawsuit
DEFENDANT - the person being sued
CLASS ACTION (TEXT PG: 30)
A class action allows a single person, or a small group of people, to sue on behalf of a larger
group of claimants.
Legislation on class actions will vary from province to province.
CLASS ACTION CLAIM EXAMPLES:
Product liability; prescription drugs that have bad side effects
Mass torts; contaminated water that affects an entire town
Workplace discriminations; corporation pays female employees less than male employees
Clubs and churches; sexual abuse of children by clergy
CLASS ACTION LAW SUIT REQUIREMENTS FOR CERTIFICATION:
1. CAUSE OF ACTION
a. A legitimate claim recognized by the law
b. Does not have to prove case during certification stage
1. COMMON ISSUES (usually costs $75)
a. Must be common issues amongst the various members of the class
b. Can be the SAME ISSUE among all claimants in class; EX. Patients receive
tainted blood from the same clinic
c. ISSUES CAN VARY among claimants but those issues all arose from the same
instance; EX. A prescription drug may cause various terrible side effects in users
1. REPRESENTATIVE PLAINTIFF
a. One PLAINTIFF to REPRESENT the entire class
b. Must demonstrate a workable plan for fairly representing the issues of all
claimants in class
c. Must have best interests of entire class at heart 1. NOTIFICATION
a. Representative Plaintiff must have a workable plan for NOTIFYING potential
b. Notices can be in newspapers or magazines
c. Most actions include all potential claimants and individuals must OPT-OUT of the
suit within a certain amount of time
d. All members bound to court's decision
e. Those who have opted out cannot bring separate actions on their own
1. PREFERRABLE PROCEDURE
a. Court must be convinced that class action is the preferable way to deal with
b. Is it too complicated? Are there enough similarities among claims?
a. Assuming all above requirements have been met, they can certify
b. Represents the court's decision to allow the various claims to be joined together
and to proceed as a class action
c. Most important step
d. Demonstrated that the court believes that there is a serious and genuine claim to
e. Certification often convinces defendants to settle
1. SELF REPRESENTATION
2. LAWYERS (regulated by Law Society of Upper Canada)
1. PARALEGALS (regulated by Law Society of Upper Canada)
PROFESSIONAL LIABILITY INSURANCE & ASSURANCE FUND
• For lawyers & paralegals, allows clients to receive compensation from a lawyer's
Insurance company if the lawyer has acted carelessly
The Litigation Process: An Overview of the Life of a Legal Action
The basic steps in a legal action are set out below.
Cause of Action occurs.
• Action must be commenced within applicable limitation period
• Limitation Periods; period of time within which an action must be started IN
ONTARIO; COMMON LIMITATION PERIOD IS 2 YEARS (can range from 6 months to
Pleadings • The parties exchange various filings that outline the issues that they will raise at trial
and the facts upon which they will rely.
• 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
• If the case goes to trial, the plaintiff must prove its case on a balance of
probabilities. In other words, every important 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 therefore 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. See
Figure XX below for more details.
If the plaintiff misses the limitation period, she still has a claim…but she cannot enforce that claim through the courts
unless there are very special circumstances. From a practical perspective, this means that the plaintiff likely will not
be able to get a remedy. A special exception applies to debts, however. 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. Consider Ethical Perspective 11.1 on page 264 in the textbook in this regard.
Pleadings: There are strict limits on the time that each party has to respond to the other’s pleadings. The failure to
file your pleadings in response to the other party’s pleadings could have disastrous results. For example, if a
defendant does not 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!
If you are served with a statement of claim or other form of pleading, you should immediately contact your
lawyer. Do not 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, along with a brief description of these remedies, are set out in the table
Remedy Description Example
Compensatory damages Pay the plaintiff money to Provide an injured plaintiff
compensate for the plaintiff’s with the amount he lost as a
loss result of not being able to
work and the amount spent
on medical bills
Punitive damages Pay the plaintiff money as a Punish an insurance
means of punishing the company that made up
defendant for acting very allegations of arson in order
badly to avoid paying a benefit
under an insurance policy
Nominal damages Pay the plaintiff a very small Recognize the right of a store
amount of money (e.g., $1) to that sued for trespass even
recognize symbolically that though the unwanted
the defendant acted customer did not do any
wrongfully even though the harm
plaintiff did not suffer any loss
Specific performance Order the defendant to fulfill Force a defendant who
a contractual promise promised to sell a piece of
***equitable remedy land to the plaintiff to go
through with the sale
Injunction Require the defendant to act Force the defendant to stop
in a certain way (e.g., to do cutting through the plaintiff’s
something or to stop doing backyard or force a
something) construction company to
***equitable remedy remove its equipment from a neighbour’s property
Rescission Terminate a contract Eliminate a contract that was
***equitable remedy created by a con artist who