Legal terms

Statement of Claim

A statement of claim is an originating document that is used to commence a legal proceeding against another party. This document should include a summary of the key facts that support your case and the relief sought. After issuance it must be served personally within 6 months. If the claim involves foreign defendants than it is important to be weary of the difference in rules and limitations regarding service. Mistakes trigger delays which can expose you to expiring limitation periods. Thus, it is imperative that if you are considering a legal proceeding that you act fast with the right legal counsel to guide you.

Statement of Defence

When someone is served with a statement of claim they are the defendant. The defendant will be responsible for serving a statement of defence within 20 days if in Ontario, 40 days if elsewhere in Canada or the United States or 60 days where the defendant has been served outside of Canada and the United States. Usually, the plaintiff and defendant are represented by counsel and at this stage the defendant can instruct their lawyer to contact the plaintiff’s lawyer if there is a need to request a reasonable extension for delivering a statement of defence. These requests are very common and usually granted. However, if the extension is not granted it is important for defendants to act according to the time limitations to avoid a default judgement. If a default judgement has been obtained than the defendant must act quickly to set aside this aside by providing a reasonable explanation for failing to defend as well as shows that their defence has sufficient merit.

Examination for Discovery

Discovery refers to the evidence that support each party’s arguments. This includes whether a party must answer a question or produce a requested document. All parties must deliver an affidavit of documents with a list of all documents relevant to the matter and must attest that it is complete to the “full extent of the party’s knowledge, information and belief.” Privileged documents must only be identified, the actual documents do not need to be disclosed to the involved parties, though all other relevant documents must be listed and disclosed. Once the affidavit of documents has been completed then the examination for discovery can begin. This is where lawyers for each party can examine any party who is opposite in interest to that of their own client and ask questions relevant to the matter on record. During this process lawyers are basically trying to find out what the other party is trying to say, whether they agree at any parts and to attempt to obtain any admissions from another party that could help their argument.

Motions

A motion is the process of requesting a judge to make an order. This is basically done by a party that would like to have a matter addressed by the court typically before the final judgement is made but it can also be done sometimes after judgement or to support an enforcement process. It is important to consider whether the motion is necessary and if it will provide a real benefit as motions cause significant delays and add to the costs greatly. Further, the loosing party can potentially be responsible for paying the costs of the winning party.

Arbitration & Mediation

In Ontario mediation is mandatory for most cases. This is meant to be done at an early stage as it will be more effective this way. Mediation is a way for the parties to discuss the issues and see if there is a way they can settle without the need for a full trial. It is important to attend mediation because the court has authority to dismiss the action, strike out the Statement of Defence or order costs for failing to participate.

Arbitration is much like a trial but does not involve the courts. Instead, the parties agree to an independent and impartial arbitrator who will give a decision that they will be bound by. This option is usually chosen as an alternative to trial to reduce costs and delays.

Summary Judgement

This procedure can be used to allow a party to obtain a judgement on part of the claim or defence or even the entire claim through a motion. The evidence is presented to a judge or a master in writing and the decision can be made without the need for a trial. If the judgement is made on the entire claim or defence, then this will be the end of the action. A motion for summary judgment can be brought anytime after the party has delivered its statement of claim or defence even after examinations for discovery have been conducted.

Stay Proceedings

A stay of proceedings is a ruling made by the court to halt any further legal proceedings. This can be temporary or permanent. The court may stay a proceeding on its own initiative, on a motion by any person or on such terms the court considers just. Basically, the court has very broad discretion in determining whether a stay of proceedings is appropriate or not.

Trial

A trial is conducted by a judge alone or a judge and jury. In Canada most civil lawsuits are tried without a jury. Typically, the Plaintiff will have opening statements first then evidence will be called, and examinations and cross-examinations of the plaintiff’s witnesses will be conducted. Next the defence has a chance to make opening statements if they have not done so already and examinations and cross-examinations on the defence’s witnesses are completed. Finally closing submissions are made. At this point the court may grant judgement immediately or may reserve its decision and give it on a later date.

Appeals

An Appeal is a process that can be taken to have a decision reconsidered by a higher court. The higher court has the authority to uphold, reverse, or modify the trial decision. Depending on the facts a new trial may also be ordered by the appeal judge. An appeal is not simply an opportunity to have a “redo” of the trial with the same submissions and evidence. The appeal process can be different depending on the facts of the case, so if you are considering an appeal give us a call to discuss your options!

ILA

Independent Legal Advice (ILA) is provided by a lawyer who has no relation to the client legal issue or any conflicting interests. ILA is for providing advice that is educated, unbiased and objective. The lawyer providing this advice is retained in a limited scope to give their legal opinion and ensures the client understands the nature of the matter. This is different then independent legal representation because with ILA the lawyer is only offering advice and is not representing the client in a proceeding or transaction.

Consultations

At ME Law Professional Corporation your free consultation will be with our principal lawyer Mayssia (May) Elajami. After hearing about the legal issue, Ms. Elajami will ask the prospective client some questions to get a better understanding of the issues. Ms. Elajami will advise what routes are available to resolve the issue and what she believes is the best. She will also discuss the fees, terms in the Retainer Agreement and next steps (if you choose to move forward).

Source:

Actions: Basic Steps (ON) Founding Authors: Patrick O'Kelly and Glenn Zacher, Stikeman Elliott LLP. Updating Author: Practical Guidance.