Civil Litigation FAQ

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How do I sue someone?

You may commence an Action or an Application in the Superior Court of Justice if the claim is over $25,000.00.  If the claim is under $25,000.00 you prepare a Plaintiff’s Claim in the Small Claims Court.  An Application is permitted for certain specific types of claims and can shorten the length of time to bring the matter before a Judge for a decision to be made.

What can I sue for?

You can sue for almost anything.  If you have suffered a loss or your rights have been infringed you may be able to sue the person who caused the loss or infringed on your rights.

How long does it take to bring a claim to Court?

The length of time it takes to have a Court hear your dispute varies on a number of factors.  If, as indicated above you are able to proceed by way of Application you may be able to have the Court make a decision regarding your Claim within a matter of months.  If the claim cannot be brought pursuant to an Application then it may take years.  Once a matter is set down for trial it joins a queue.  Civil trials are held several times per year.

Are there other ways to resolve my claim?

Claims may be resolved by arbitration or mediation or simply negotiation between the parties.

What are pleadings?

Pleadings are comprised of the Statement of Claim, the Defence or Defence and Counterclaim and any response to the Defence called a Reply.  The Statement of Claim sets out the claims of the Plaintiff.  In other words, the reason why the Defendant is obligated to the Plaintiff.  The Defence is the Defendant’s response to the claims of the Plaintiff.  If the Defendant claims the Plaintiff owes him/her money then the Defendant may make a counter-claim claiming payment from the Plaintiff.

What are the Rules of Civil Procedure?

The Rules of Civil Procedure are rules established by the Courts for the conduct of civil litigation.  They govern every step of the litigation. They are available online at

Can I get the other side to pay my legal expenses?

The general rule is that the losing party pays a portion of the legal expenses called costs, of the winning party.  You will not likely recover 100% of your legal expenses.  It is estimated that if you are the successful party you will recover approximately 50% to 60% of your actual out-of-pocket legal expenses.  Each party is encouraged to serve an Offer to Settle and if the party “beats” the amount in the Offer to Settle the other side will usually have to pay a greater portion of that person’s legal bill.

What are Examinations for Discovery?

Examinations for Discovery occur when the lawyer for one party asks questions of the other party who is under oath just as if the person were testifying in Court.  The purpose is so that the party questioning can obtain additional information from the opposing party regarding the case and the evidence supporting the other party’s position.

What Court fees will I need to pay?

Court fees are incurred at various stages of a legal proceeding.  A fee is paid to start the legal proceeding and to file a Defence.  There is a fee to set the matter down for trial and if there are any Motions that is a request of the Court to make a temporary Order regarding the litigation such as to require a party to disclose information that they are refusing to disclose.  Generally an Order made in respect of a Motion deals with a particular aspect of the litigation and is not a final determination of the dispute between the parties.

I received a Statement of Claim, what do I do?

If the action was commenced in Ontario you have 20 days to file a Statement of Defence.  You need to gather together all of the documentation and information you have respecting the claims made by the Plaintiff and prepare and serve a Statement of Defence.

What if the defendant does not reply to my claim?

Where the claim is clearly a claim for money owed, e.g. a claim on a Promissory Note, the Court office may in the event of a default sign a Judgment in your favour.  If it is not simply a claim for money you may note the Defendant in default and bring a Motion asking the Court to grant you Judgment.

The defendant made a counterclaim, now what?

You have to defend the Counterclaim.  This is done by way of a Reply and Defence to Counterclaim.  In this document you have to set out your position.

What is a simplified trial?

Where the claim is under $100,000.00 the Courts allow a simplified trial.  In a simplified trial the parties put forward their evidence by way of Affidavit and the opposing party is allowed to cross-examine the person who has sworn the Affidavit.  There are restrictions on the length of time you can take to cross-examine the individual who has provided their evidence by way of Affidavit.

What is mediation?

Mediation is an attempt to resolve the matter prior to a trial.  An independent third party works with the parties to the litigation in an effort to resolve the litigation.  Generally, both parties will have to compromise their position in order to reach a resolution.

What is a pre-trial conference?

Prior to a trial there will be a Pre-Trial Conference before a Judge who will not be the Judge at trial in an effort to resolve the matter or if the matter is not resolved to determine the length of trial and to determine if any of the issues can be resolved.  In the Small Claims Court this process is called a Settlement Conference.

What is the Small Claims Court?

The Small Claims Court is the court that hears claims up to $25,000.00.  The Small Claims Court cannot hear claims regarding family law matters and some other matters where a Declaration is being sought.

What is the protocol in the Court?

In all Courts only one person is to speak at a time; the person speaking is to stand and address the Judge and not the other parties; the person speaking is to be respectful of the Court and of the other parties and all parties must listen to the Judge.  The Judge is addressed as “Your Honour”.

Do I need a lawyer?

Generally it is wise to have a knowledgeable representative who can put forward your case in a concise and coherent manner.

What are the main steps in a lawsuit?

  1. The action is commenced by having the Claim issued at the Court.
  2. Once served the Defendant must file a Defence.
  3. Each party must collect all of the documents relating to the issues in the legal proceeding. In the Superior Court each party is to prepare an Affidavit of Documents that lists all of the documents that you have.
  4. The parties are entitled to review the documents that you have listed and to obtain copies of them.
  5. There may be an Examination for Discovery.
  6. If there are questions asked at the Discovery which the person being questioned cannot answer they may undertake to do so and will answer the undertakings within a reasonable time following the completion of the Examination for Discovery.
  7. Once the Examinations for Discovery are complete and any undertakings given have been answered the matter may be set down for trial.
  8. Once the matter has been set down for trial the Court will arrange for a pre-trial conference.
  9. After the pre-trial conference the matter may be called for trial.