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.
Also, there are different procedures under the following rules:
- Simplified Procedure under Rule 76 (PDF)
- Civil Case Management under Rule 77 (in Toronto, Windsor and Ottawa only) (PDF)
- Mandatory Mediation under rules 24.1 and 75.1 (in Toronto, Windsor and Ottawa only) (PDF)
For more information about these procedures, including flowcharts which summarize the processes, visit the Ministry of the Attorney General website at: http://www.attorneygeneral.jus.gov.on.ca/english/courts/. You may also wish to consult the Rules of Civil Procedure.
Overview of a civil action
The plaintiff prepares a statement of claim, which contains a concise statement of material 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.
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.
The parties must agree on a discovery plan if they wish to obtain evidence through the discovery process.
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 must be made available at a party's request.
A party may serve a notice of examination (Form 34A - PDF) 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 for discovery. The maximum time limit each party has to examine persons for discovery is seven hours. This time limit applies regardless of the number of persons to be examined for discovery.
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.
The registrar places the action on the trial list, or in some locations, trial dates are fixed by a judge in assignment court.
The parties must attend a pre-trial conference before a judge or court officer to attempt to settle the case or narrow the issues.
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.
A judge may give judgment in court right after both sides have finished presenting their cases. Sometimes, however, the judge may not give the judgment right away but will give the decision later (this is called reserving judgment).
a. 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 the following to the court:
- The appropriate Court fee payable to the Minister of Finance. This fee is for the cost of handling your court 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 - PDF (Information for Court Use).
The claim can also be filed electronically through the Ministry of the Attorney General’s Civil Claims Online portal at: www.ontario.ca/civilclaims. The online filing service allows you to submit all required court forms online, see Rule 4.05.1. You will need to pay your court filing fees through the online service and a court-issued claim is sent to you by email from the court. For a list of all documents that can be filed electronically see Rule 4.05.1(2).
If you will be attending a hearing or conference, you must provide a paper copy of any document you filed online and wish to use at the hearing or conference [r. 4.05.1(6)].
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. To determine how you may serve your claim, review the Rules of Civil Procedure. 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.
b. 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. The options might include:
- File a statement of defence;
- File a notice of intent to defend, followed by a statement of defence within ten days;
- Try to settle all or part of the claim with the person suing you.
- Counterclaim against the person suing you,
- Cross claim against another defendant in the action, and/or
- Start a third party claim against someone who is not a party to the action.
Your statement of defence (Form 18A - PDF) 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 should respond to a statement of claim, and which documents should be served and filed with the court.
You should not ignore the claim. 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.
The purpose of discovery is to obtain information about the opposing party's evidence prior to trial. There are two main types of discovery: discovery of documents and examinations for discovery (where parties are asked questions).
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 help parties to reach a settlement.
- It makes the trial process more efficient and fair.
If you wish to obtain evidence using discovery then you and the other party must agree to a discovery plan.
The discovery plan must include specific information (see rule 29.1.03(3)). In preparing the discovery plan, the parties must consider the Sedona Canada Principles addressing electronic discovery .
The plan must be agreed to within 60 days after the close of pleadings and before making any attempts to obtain the evidence through the discovery process.
An affidavit of documents must list all documents relevant 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 in electronic form, 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 serving a supplementary affidavit (Form 4D - PDF).
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.
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. There are limited circumstances in which a non-party can be examined as well.
Each party may examine other parties for a maximum of seven hours in total. This seven-hour time limit applies regardless of the number of persons to be examined by a party. A party may be granted more time for discovery examinations if the parties agree or through a court order.
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 and things as well.
d. 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 trial 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 (see Rule 48.03). 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.
As of January 1, 2015:
- actions not set down for trial or concluded within five years from their start date will be automatically dismissed, unless ordered otherwise
- actions that have been struck off of the trial list and not restored to the list within two years will automatically be dismissed, unless ordered otherwise
- the Registrar will not provide notice that an action will be dismissed
- once an action is dismissed, the Registrar will serve an Order Dismissing Action for Delay (Form 48D)
- actions started before January 1, 2015 will be dismissed as set out under rule 48.14(11), (12) and (13).
If you are unable to have your action set down for trial within five years, or placed back on the trial list within two years, you can keep your action from being dismissed if you:
- have the consent of all the parties, or
- bring a motion for a status hearing.
If you have the consent of all parties, you can draft a timetable that:
- identifies the steps you need to complete before the action can be set down for trial or restored to the trial list,
- shows the date(s) by which you need to complete the steps, and
- shows a date (no more than seven years after the claim) before which the action must be set down for trial or placed back on the trial list.
If all parties consent to the timetable, you can file the timetable and draft order with the court. You need to file the timetable and draft order at least 30 days before the five or two year deadlines.
If all parties do not consent to a timetable, you can bring a motion for a status hearing to ask the court for an order allowing the action to move forward. This motion may be brought at any time before the five or two year deadlines.
e. Pre-trial conference
A pre-trial must be held in all actions before a trial is held. A pre-trial 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. A judge who conducts a pre-trial conference will not preside at the trial unless all parties consent in writing.
Within 180 days of an action being set down for trial, the parties must schedule with the registrar a date and time for the pre-trial which is acceptable for all parties. If the parties do not schedule a pre-trial within 180 days of the set down for trial, the registrar will schedule a pre-trial date (unless there is any earlier court order which provides otherwise).
f. 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 (Form 53A - PDF) 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.