Overview

The common manner that a civil dispute is brought to court is by filing a Notice of Civil Claim. This article gives a brief overview of the steps associated with a civil claim. It is not intended to be legal advice or a complete explanation of every step. The other main way to bring a claim is by filing a Petition, which is not covered in this article.

Pleadings

Pleadings are court documents that outline the dispute, including:

• who is responsible,
• what is being sought,
• what facts are alleged to have taken place, and
• the law that supports each party’s position.

Rules govern how to plead a case, what to include, and what to omit. Generally, Pleadings set the boundaries of what a court must decide, outlining the relevant facts and law needed to establish a claim (without presenting evidence). A claim starts by filing a Notice of Civil Claim (NOCC). This form identifies the parties, the orders sought, and the supporting facts and law. It informs the other parties and the court what is being sought and why. To obtain relief, details must be included in the NOCC. Proper research ensures the NOCC is complete. The NOCC is then served on the opposing parties, who usually have three weeks to respond with a Response to Civil Claim (RTCC). If the defendant wants to make a claim against another party, they may file a Counterclaim. To seek contribution or indemnity from others, they can file a Third Party Notice. Each form must be filed and served on the respective parties, who then have specified times to respond. Sometimes, the defendant's RTCC raises issues that require the plaintiff to file a Reply. A NOCC should be issued early. There are limitation periods that govern when a lawsuit can be brought. If the deadline is missed, the right to sue may be lost. Typically, the general limitation is two years from the date the right to sue arose, though there can be exceptions. It's better to start a lawsuit sooner rather than later.

Discovery

Discovery refers to the processes available to parties to learn about the other party’s case. Some steps are mandatory; some are not. Thirty-five days after pleadings are closed (meaning that the NOCC and RTCC have both been filed and served on all parties), each party must provide a List of Documents. This list includes documents relevant to the matters being decided. "Document" has a broad meaning and includes electronic communications such as emails, texts, and social media. The list must include documents the party intends to rely on, documents no longer in their possession, and privileged documents (with special rules for privileged documents). If a party believes the list is incomplete, they can request updates. Any party can apply to obtain documents from a third party by applying to court on notice to the third party. Additionally, parties can apply to inspect documents and physical objects. Examinations for discovery allow parties to ask questions of the other party under oath, with answers transcribed by a court reporter. This process helps to learn the other side’s case and obtain admissions. Questions from the transcript can be used at trial to impeach a witness or read as evidence. Third parties can be examined before trial, but their transcripts are not evidence without court approval.

Trial

Generally, there are two main ways to resolve a dispute at trial: a summary trial or a traditional (live) trial. A Summary Trial is conducted by affidavit without live witnesses. Summary Trials are often cheaper and quicker, as evidence is gathered and presented by affidavit. Scheduling a regular trial can take a while, often about 18 months from the request. Summary trials can be set 12 business days from the service of the application. However, scheduling can still take a few months due to court and counsel calendars. Summary trials are not suitable for complex cases, those with conflicting evidence, or where credibility is at issue. Courts have refused to hear summary trials in such instances. Prior to a trial, preparation is essential. In addition to discovery procedures, other steps include refining issues, meeting with witnesses, researching legal issues, drafting arguments, obtaining expert evidence, and conducting settlement discussions. Obtaining expert reports is often crucial for trial preparation. If opinion evidence (specialized or technical evidence) is required, it must be presented in an expert report, served at least 84 days prior to trial. Collaborating with opposing parties can sometimes make pre-trial applications unnecessary, but applications to court are often needed to prepare for trial or understand the case. These are called interlocutory applications. The scope of these applications is vast and includes applications for security, documents, examination of witnesses, compliance with rules, investigations, timelines, striking pleadings, and more.

Costs

A common misconception is that a successful party is entitled to have their legal fees paid by the losing party. This is not correct. Legal fees are a contractual obligation between the client and lawyer. Costs are a court-ordered remedy to help address the cost of litigation. The normal order for costs is party/party costs a tariff based on steps taken in the litigation. Generally, party/party costs are a fraction of actual legal fees. (Offers to settle can increase cost consequences). Special costs, sometimes called solicitor-client costs, reflect what an objective client would pay a lawyer and can be ordered in specific circumstances. They are generally ordered where a party has engaged in reprehensible behavior or where an action is brought on behalf of someone or involves a pool of money (e.g., a committeeship or estate claim).

Collections and Enforcement of Orders

In litigation, it is crucial to remember the risk of a dry judgment if the defendant lacks sufficient assets to satisfy the order. To ensure an award can be paid, a search of assets should be considered. Sometimes a garnishing order before or after judgment can be applied for, directing funds owed to the defendant to be paid into court. If the dispute involves land, a Certificate of Pending Litigation (CPL) can be registered against the title to prevent transfer or encumbrance. Parties must respect court orders and make payments as required. However, some parties don’t comply with court orders, or practical circumstances make enforcement impossible, such as the debtor lacking funds to honor the judgment. After a judgment, several methods can compel compliance with an order. Common steps include:

• Conducting searches of assets available to satisfy judgment
• Demand letters for payment
• Garnishing orders, to have money owed to the judgment creditor paid into court,
• Hiring a bailiff
• Registering the judgment against land and compelling the sale of land
• Examination in Aid of Execution (examining a debtor to learn what assets they have)
• Subpoena to Debtor (a payment hearing before a Registrar)
• Contempt of Court applications – which can include fines or imprisonment for failure to comply with the order
• Bankruptcy and/or appointing a receiver

Settlement

A dispute can be settled at any time: before an action is commenced, after an action has been commenced, during trial, and after judgment. Practical and tactical considerations influence when a settlement should be made. Three important considerations are the cost of litigation, the risk of proceeding to trial, and having sufficient knowledge to make an informed decision. There is no set method to reach a settlement. It can include informal settlement discussions, demand letters, formal offers to settle, and mediation. Formal offers to settle, per Rule 9-1 of the Supreme Court rules, can affect costs. If an offer is made using specific language, the court can order additional costs to the party making the offer. For example, it can order double costs to a successful plaintiff who made the offer, or award costs to a defendant if their offer was greater than the amount ordered. Mediation, either agreed upon or initiated by issuing a Notice to Mediate, is a structured negotiation facilitated by a mediator. The mediator focuses on outcomes rather than positions and helps parties understand the benefits of settlement. Different mediation styles exist, including mediation with arbitration. Preparation for mediation involves gathering information to influence the other side’s perception of the case, usually exchanged via Mediation Briefs and sometimes in pre-mediation conferences. The mediation process itself can vary widely, involving remote or in-person meetings, caucuses, or shuttle diplomacy. Mediation is often a helpful way to resolve disputes without the cost or stress of a trial.

A Brief Note About Petitions Petitions are a court process supported by affidavit evidence.