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Civil Cases – Suing and Being Sued

Steps in a civil action

The following is a general overview of the components of a civil action in the Superior Court. Each case will vary. Note that applications follow a different procedure. More information on applications may be found in the Rules of Civil Procedure.

Overview of a civil action
Bringing a claim
Defending a claim
Discovery
Setting an action down for trial
Pre-trial conference
The trial

Note that your case may follow a different procedure because one of the following rules apply:

  • Simplified procedure under Rule 76 – Simplified procedure under Rule 76 is mandatory for all civil actions where the plaintiff's claim is (a) for $50,000 or less and (b) exclusively for money, real property, or personal property. Simplified procedure is available for other actions if the defendant does not object. Rule 76 does not apply to actions under the Class Proceedings Act, 1992, actions under the Construction Lien Act (except trust claims), or actions under Rule 77.
  • Civil case management under Rule 77 – Civil case management under Rule 77 applies to civil actions and applications in Ottawa and Windsor. See Rule 78 with respect to when Rule 77 may apply to civil cases in Toronto. Rule 77 does not apply to family law actions, class proceedings, estates, bankruptcy and insolvency proceedings, mortgage actions (Rule 64), construction lien proceedings (except trust claims), Toronto Commercial List matters, or simplified rules (Rule 76) proceedings.
  • Mandatory mediation under Rules 24.1 and 75.1 – Rule 24.1 of the Rules of Civil Procedure establishes mandatory mediation for civil, non-family, case managed actions. The mandatory mediation program is in effect in Toronto, Ottawa and Windsor. Mandatory mediation under Rule 75.1 applies to certain estates, trusts, and substitute decisions proceedings in Toronto, Ottawa, and Windsor.
  • Civil case management under Rule 78 – Rule 78 applies to civil cases in Toronto only. Under a 3-year pilot project (ending May 2008), all civil cases in Toronto will not automatically be assigned to case management under Rule 77 or mandatory mediation under Rule 24.1.
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Overview of a civil action

Step Description
Bringing a claim The plaintiff prepares a statement of claim, which contains a concise statement of material (i.e. legally significant) facts on which the plaintiff relies. The court issues the statement of claim.The plaintiff serves the statement of claim on all defendants and files an affidavit of service with the court. If the defendant does not defend the action, this affidavit of service is necessary for the plaintiff to obtain default judgment.
Defending a claim The defendant prepares a statement of defence and serves it on the plaintiff, and files a copy with the court together with proof of service. The defendant may counterclaim against the plaintiff, crossclaim against a co-defendant, or make a 3rd party claim against a non-party. Where a defendant fails to deliver a statement of defence within the prescribed time, the plaintiff may obtain default judgment from the court registrar or a judge, depending on the type of claim.
Discovery Within 10 days of the exchange of all pleadings, the parties must deliver to all other parties an affidavit that lists all relevant documents in the party's power, possession or control. Copies of the documents are to be made available at a party's request. A party may serve a notice of examination on an opposing party, indicating a time and place where the party must attend to answer questions under oath. The examination is recorded, and where requested, transcribed. Generally, only parties may be examined.
Setting an action down for trial A trial record is required to set an action down for trial. Either party may set the action down for trial by serving and filing the trial record. A trial record includes a copy of all pleadings and orders relating to the trial.If the action is proceeding under Simplified Procedure (Rule 76), a Notice of Readiness for Pre-Trial Conference should be served and filed in order to set the action down for trial.The registrar places the action on the trial list 60 days later, or in some locations, trial dates are fixed by a judge in assignment court.
Pre-trial conference The judge, on his or her own initiative or at the request of a party, directs the parties to attend a pre-trial conference before a judge or court officer to attempt to settle the case or narrow the issues.
Trial The plaintiff and defendant make opening statements. The plaintiff's witnesses are examined and cross-examined. The defendant's witnesses are examined and cross-examined. The plaintiff and defendant make closing arguments.

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Steps in a civil action:  Bringing a claim

The Rules of Civil Procedure set out requirements for statements of claim, including what they need to contain and what their format should be.

To start your action, you must have your statement of claim issued by the court. You can do this by bringing your statement of claim to the court counter along with:

  • The appropriate fee payable to the Minister of Finance. This fee is for the cost of handling your claim. If you win your case, any fees you have paid may be added to the money you are entitled to collect.
  • Enough copies of your statement of claim. One copy will be retained in the court file until you return the original with proof of service. You will require one copy for yourself and one copy to serve on each named defendant. Copies can be made at the court office; however, the court charges a photocopy fee for each copy required.
  • A completed Form 14F (Information for Court Use).

You or someone acting on your behalf must come to the court in person to file these documents. Documents sent to the court by mail or courier will not be accepted.

Once your statement of claim is issued, it must be served on the defendants within 6 months, unless you have obtained a court order directing otherwise. Service (delivery) of documents is a very important requirement in processing your claim. Consult the Rules of Civil Procedure as to how you may serve your claim. The Rules of Civil Procedure also set out how you can prove that your claim was served, which may be necessary if the defendant does not respond.

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Steps in a civil action:  Defending a claim

How you respond to a claim depends on a few factors. Do you agree that you owe the money claimed? Do you disagree completely, or with just part of the claim? Do you feel the person suing you owes you money, or that it is someone else's fault altogether? Depending on how you answer these questions, there are different ways to respond to a claim.

Your options include:

  • Filing a statement of defence;
  • Filing a notice of intent to defend, followed by a statement of defence within ten days;
  • Attempting to settle all or part of the claim with the person suing you.

The Rules of Civil Procedure also outline circumstances in which you may be able to file:

  • A counterclaim against the person suing you,
  • A cross claim against another defendant in the action, and/or
  • A third party claim against someone who is not a party to the action.

Your statement of defence must be served on every other party in accordance with the Rules of Civil Procedure, within prescribed time limits. A copy of the statement of defence must also be filed with the court.

A lawyer is in the best position to advise you on how you might choose to respond to a statement of claim, and which documents should be served and filed with the court.

If you do not file a statement of defence, you may be noted in default. Being noted in default has a number of consequences. One consequence is that you will be deemed to admit all allegations of fact in the plaintiff's statement of claim. Once you are noted in default, the party suing you can seek a default judgment against you. See Rule 19 of the Rules of Civil Procedure for more information regarding default proceedings.

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Steps in a civil action: Discovery

Discovery allows parties to be fully informed of the opposing party's evidence prior to trial. Discovery has a number of significant benefits:

  • It enables parties to assess the strengths and weaknesses of each side's case prior to trial.
  • It assists the parties in narrowing the issues for trial.
  • It can facilitate settlement.
  • It makes the trial process more efficient and fair.

There are two major steps in discovery: documentary discovery and examinations for discovery.

Documentary Discovery

Within ten days after all pleadings have been exchanged (or the time for their delivery has expired), you must serve a sworn affidavit of documents. Within this same time period, the other parties must serve you with their sworn affidavits of documents.

An affidavit of documents must list all documents relating to any matter in issue in an action that are or have been in your possession, control or power. Documents are defined broadly and can include videotapes and information recorded electronically, such as e-mails.

There can be serious consequences for failing to disclose a relevant document. After you serve your affidavit of documents, you must still disclose any new documents that you find if they are relevant. You can do this by a supplementary affidavit.

You may be entitled to inspect a document in another party's possession, and another party may be entitled to inspect your documents. The circumstances in which a document must be produced (i.e. provided to another party) are outlined in the Rules of Civil Procedure. There are also limited circumstances in which the court can order production of a document in the possession, control or power of a person that is not a party to the action.

Examinations for Discovery

Examinations provide parties an opportunity to ask each other questions, under oath, in advance of the trial. There are limited circumstances in which a non-party can be examined as well.

A party may serve a notice of examination on an opposing party, indicating a time and place where the party must attend to answer questions under oath before a private reporting service. The examination is recorded, and where requested, transcribed. Generally, only parties may be examined.

You must bring to your examination for discovery all of the documents listed in your affidavit of documents that are not privileged. You may be required to bring other documents as well.

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Steps in a civil action: Setting the action down for trial

Once you are ready, and provided you are not noted in default, you can have your case set down for trial. This notifies the court that the case is ready to be tried, and the scheduling process can begin.

To have your case set down for trial, you will need to prepare and file your trial record. The Rules of Civil Procedure outline the requirements of a trial record. A trial record includes documents such as copies of the pleadings and copies of any orders previously made in your case.

If you are the plaintiff in an undefended action, you can have your case set down for trial by filing your trial record with the court. Undefended actions go to trial when other avenues to obtain default judgment have been unsuccessful. See Rule 19 of the Rules of Civil Procedure for more information regarding default proceedings.

If your action is defended, you can have your case set down for trial by serving your trial record on the other parties and filing it with the court with proof of service, and upon payment of the appropriate fee.

The registrar places the action on the trial list 60 days after the case is set down for trial, or in some locations, trial dates are fixed by a judge in assignment court.

If you do not have your action placed on the trial list within two years after the defendant files his or her statement of defence, your action can be dismissed for delay. You will be given notice of this impending dismissal.

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Steps in a civil action: Pre-trial conference

If a pre-trial conference is held in your case, it will take place before a judge or officer. It is an opportunity for the parties to discuss a number of matters, including: settlement, whether the issues can be simplified, and how long the hearing is expected to last. Any party can request a pre-trial conference, or a judge may direct that one take place.

A judge who conducts a pre-trial conference will not preside at the trial of the action.

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Steps in a civil action: The Trial

A civil trial may proceed before a judge alone, or before a judge and jury. Unless a statute provides otherwise, a party may request that a judge and jury hear the action by filing a jury notice in accordance with the Rules of Civil Procedure.

At a trial, each party will present his or her evidence by calling witnesses and entering documents or objects as exhibits. There will be an opportunity to introduce the judge or jury to your case at the outset of the trial during opening statements. At the end of the trial, you will be given an opportunity to make closing arguments about the evidence heard during the trial and how the law applies to your case.

An order can be requested and made, generally at the beginning of the trial, to exclude witnesses from the courtroom until it is their turn to testify. This ensures that their evidence is not affected by what other people say during the trial.

If any of your witnesses are reluctant to attend the trial, you can require them to do so by serving them with a summons to witness along with the required attendance monies. You may be required to file an affidavit of service of the summons.

There can be serious consequences for failing to attend a trial. For example, the trial could proceed in your absence or your claim may be dismissed.

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