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The information provided below is offered to help you in your decision to make a claim if you do not have a lawyer. The information provided below is not legal advice, and it may not apply in every situation.
Before making a claim, there are a number of factors you may want to consider, and a number of pieces of information you will need to collect. Here are some of things to consider before you start a claim:
Going to trial to have a judge hear evidence and decide your case may be one of the most expensive ways to resolve your dispute.
Before starting a court case you may wish to consider other options, such as:
Parties can discuss the steps they could take to resolve their dispute. Negotiation can occur directly between the parties or indirectly through agents acting on behalf of the parties, such as lawyers.
Before you start a claim in court you might consider whether it would help to talk to the other party or send a letter to the other party to let that person know what you are seeking and why you feel they should do or pay what you want.
You may be able to settle your dispute with the other party to avoid the time and expense of going to court. This means that you may need to consider a compromise. Think also about the possibility that you might lose the court case and be ordered to pay the other party's costs.
You may also consider whether a complaint to the appropriate body would be an alternative. For general information about complaints against lawyers, a private bailiff, a judicial official, an insurance company, visit the Justice Ontario website at: http://www.attorneygeneral.jus.gov.on.ca/english/justice-ont/.
For general information about your rights as a consumer and on complaints processes under the Consumer Protection Act visit the Ministry of Consumer Services website at: http://www.sse.gov.on.ca/mcs/en/Pages/What_Are_My_Rights.aspx.
Mediation is another way for people to settle disputes or lawsuits outside of court.
If you and the other party cannot reach an agreement, a mediator may be able to help improve communication and help you reach an agreement.
Mediators are neutral third parties who can help you agree on issues. A mediator helps you to work out a solution with the other party. A mediator will encourage compromise.
Mediation is voluntary if it happens before a court case starts. You and the other party must be willing to try to work out a solution. You must both agree to the mediation.
If you do not mediate at the beginning of your civil dispute and decide to sue in court instead, you could still later participate in a mediation session.
During your court case you might be required to participate in a mediation session. Mediation is mandatory in most civil court cases in Toronto, County of Essex (Windsor) and Ottawa. Mediation is also mandatory in these three regions for contested estates, trusts and substitute decision proceedings. For more information about the Mandatory Mediation Program, visit the Ministry of the Attorney General's website at: www.attorneygeneral.jus.gov.on.ca/english/courts/manmed/notice.asp.
The length of time of a mediation session, and the number of sessions required, will depend on many factors, such as:
The mediation session may be held at any location that is convenient and acceptable to the parties, including the mediator's office and the office of one of the parties or one of the lawyers.
The mediator does not take the place of a lawyer. Each party is encouraged to get independent legal advice before and throughout the mediation process.
It is very important for you to know about your legal rights and obligations and how the law affects your issues. Each party should review the final mediated agreement with his or her lawyer before signing.
If you do not reach an agreement during mediation, you can start a court case or continue your court case.
All parties should attend the mediation session. If a party is represented by a lawyer, the lawyer must also attend.
Before the mediation session begins, the mediator explains the mediation process and reviews the terms of the mediation, which may be set out in a written "agreement to mediate". Although mediation is an informal process, the mediator structures the discussion. All parties have a chance to present their side of the story, to explain what is important to them and to ask questions.
The mediator will help parties to reach a fair and lasting settlement. The mediator does not take sides or make decisions for the parties. Mediators cannot give you legal advice.
Parties may share the cost of a mediation session. Parties pay mediators directly for their services. A mediation session is generally less expensive than suing in court.
There are special rules that apply to mandatory mediation sessions under the Mandatory Mediation Program (in Toronto, Windsor, Ottawa). For more information visit: www.attorneygeneral.jus.gov.on.ca/english/courts/manmed/notice.asp.
Generally, everyone involved in the mediation must agree on who the mediator will be.
In Toronto, Ottawa and Windsor, if the parties do not choose a mediator, a mediator may be assigned to certain civil and estates and trust cases under the Mandatory Mediation Program (see: www.attorneygeneral.jus.gov.on.ca/english/courts/manmed/notice.asp)
Mediators come from different professional backgrounds. They may be lawyers, psychologists, or financial professionals, like accountants. Select someone who has the right skills for the issues in your case. You or your lawyer should ask questions to determine if the mediator is right for your situation. The information to ask the mediator includes:
Civil mediation services are offered by private practice mediators. A mediator may be a member of one of the following organizations, each of which provides standards of professional conduct and complaints processes:
For a list of civil mediators on the roster of the Mandatory Mediation Program (in Toronto, Ottawa and Windsor) visit: www.attorneygeneral.jus.gov.on.ca/english/courts/manmed/notice.asp.
You should determine whether mediation services are available for the type of dispute at issue. For instance, you can:
No. For information about mediation in family cases (eg. divorce, child custody and access, support), visit: www.attorneygeneral.just.gov.on.ca/english/family/divorce/mediation/.
Arbitrators are neutral third parties.
Parties who arbitrate a case must agree to be bound by any decision made by the arbitrator. A decision made by an arbitrator is legally binding and enforceable against the parties. Arbitration is a less formal process than a trial and many people find it a more comfortable process than going to court.
An arbitrator considers the evidence presented to him or her by the parties. The arbitrator cannot exclude evidence that a court would otherwise admit. Arbitration is governed by the Arbitration Act.
In terms of cost, an arbitration process may be more complicated than a mediation and is generally more expensive than mediation. Arbitration can be faster and be less expensive than suing in court.
Arbitrators may be members of one of the following organizations, each of which provides standards of professional conduct and complaints processes:
You should determine whether arbitration services are available for the type of dispute at issue. For instance, you can:
Another thing to consider before deciding to start a lawsuit is whom you want to sue. Some of the things you may want to think about include:
Even if you "win" (obtain a judgment in your favour), you may have to enforce the judgment. In order for you to collect, the person/business must have one of the following:
There may be other creditors who are already waiting to collect their judgments against the person/business. You may be able to find out by contacting your local credit bureau, enforcement office, land registry office, and/or court offices (a fee may be payable).
Even if the person/business does not have money now, you may be able to collect your judgment in the future.
You will need correct information about whom you are suing to properly prepare and serve your claim, and to enforce a judgment if you are successful.
For information about how to search a corporation or registered business name, contact the Companies Helpline, Ministry of Government Services at (416) 314-8880 or toll free in Ontario at (800) 361-3223. You must pay a fee for the search and you must have the exact name of the registered business or corporation or the Ontario corporation number.
Another thing to consider before deciding to start a lawsuit is where should you sue? Some of the things you may wish to think about include:
If your claim is for $25,000 or less or for the return of personal property valued at $25,000 or less, not including interest and costs, you may wish to bring your claim in Small Claims Court.
If the amount of your claim is worth more than $25,000, you can still choose to use Small Claims Court because it is simpler and less expensive. However, if you choose Small Claims Court you cannot claim more than $25,000. You will have to give up any amount over $25,000 and cannot start a claim at a later date for the amount in excess of the $25,000.
For more information about Small Claims Court, visit the Ministry of the Attorney General website at: http://www.attorneygeneral.jus.gov.on.ca/english/courts/scc/.
If you are proceeding with a claim for more than $25,000, you must start your claim in the Superior Court of Justice.
The Superior Court of Justice deals with almost all types of civil cases except:
Unless a statute or rule directs otherwise, you may commence your proceeding at any court office in Ontario. Note that a defendant may ask the court to have the case transferred to a different court location.
For a list of court addresses, click here or visit: http://www.attorneygeneral.jus.gov.on.ca/english/courts/Court_Addresses/.
You will have to prove your case. Consider what witnesses and/or documents you have to support you. If you do not have supporting documents (e.g. you entered into a verbal agreement) or witnesses, your claim may still be successful. However, if it is just your word against the other person's, it may be more difficult to prove your case.
You will be required to include in your statement of claim a short, clear summary of the events that took place and the reasons you think you are entitled to judgment against the defendant.
Remember, the other party is able to respond to your claim and may give evidence that will affect the judge's view of your entitlement.
There may be a time limit on how long you can wait before starting a lawsuit, which is set out in the Limitations Act. If you are uncertain about what limitation period applies to your case, you should consult a lawyer.
To pursue your claim you must attend court on a number of occasions. You or someone acting on your behalf must attend the court office to have documents issued. For more information on issuing documents, see Bringing a claim. You will also be required to attend court for any case conferences, for a pre-trial and for a trial.
Court fees must be paid to file a claim and for most steps in a proceeding, such as filing documents for a motion. These fees are payable to the Minister of Finance and may be paid at the court counter. The number of steps in a proceeding varies from case to case.
If you are successful and are granted a judgment, the judgment may include the Court fees you have paid.
If the debtor refuses to pay even after you have a judgment, additional fees must also be paid to enforce (attempt to collect) the judgment. You may also incur expenses to enforce a judgment.
If you are not able to afford the Court fees, you may be eligible for a Fee Waiver.
You should expect to pay other costs related to your lawsuit as well. These might include fees charged by your lawyer for legal services, photocopying fees for relevant documents, and fees paid to expert witnesses. The cost of a lawsuit will vary from case to case.
For more information on Court Fees and Fee Wavier visit: http://www.attorneygeneral.jus.gov.on.ca/english/courts/default.asp#fees.