Chapter 2: Litigation and Alternative Dispute
Canadian limitation statutes traditionally drew a distinction b/t claims in contract
(has to be commenced within 6 yrs) & claims in tort (has to be commenced within
2yrs). In recent years, however, in an attempt to simplify the system, most claims
must be started within 2yrs from the day which the plaintiff discovered, or should of
discovered the cause of action.
Depending on the circumstances, the relevant period may vary from days to decades.
For e.g. you must act very quickly if you want to sue a municipality or the Crown.
It may be harsh that a limitation period could prevent a plaintiff from pursuing an
otherwise valid claim against the defendant. Limitation periods are however,
necessary for at least two reasons.
oAfter time memories fade and evidence is lost
oIt is unfair to have a claim permanently hanging over a person’s head.
oStatement of Claim: is a document in which the plaintiff outlines the nature of the complaint.
It states the facts that the plaintiff intends to reply upon and the remedy that it wants to receive.
Like all pleadings, it must be issued by the courts and served on the other party.
oStatement of Defence: is a document in which the defendant sets out its version of the facts &
indicates how it intends to deny the claim.
Depending on the circumstance, the defendant may also include a counterclaim along
with the statement of defence.
oCounterclaim: is a claim that the defendant makes against the plaintiff. E.g. If the plaintiff
makes a claim for the price of the goods that it delivered to the defendant, the defendant may
make a counterclaim if it believes that it was injured due to a defective product.
oReply: is a document in which a party response to a statement of defence. (responses if you want
to disputes something on the defendants pleadings)
oDemand for Particulars: is a document that requires the other side to provide additional
information. (After receiving the basic plead, the parties may still not be entirely sure what is in
the other side mind, thus uses a demand for particulars).
A case doesn’t normally go to court immediately after the pleadings have closed. The
party will first conduct examinations for discovery.
oExamination of Discovery: is a process in which the parties ask each other questions in order
to obtain info about their case.
E.g. If the dispute involves claim against a car comp. for a vehicle that exploded on
impact, the plaintiff’s lawyer might ask the defendant’s chief engineer about the
comp. product safety studies. Although discoveries occur outside of court, they are
conducted under oath and the answers may be used as evidence during the trial.
oSettlement: occurs when the parties agree to resolve their disputes out of court.
The vast major of claims (>95%) are settled out of court. The rules are designed to encouraged
settlements, and every jurisdiction has a system of pre-trail conference. After the parties outline
their position, the judge may indicate which of them is likely to lose if the case goes to court.
oPre-trail Conference: is a meeting that occurs between the parties and a judge.
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