Civil Trial Procedures

A Civil lawsuit involves two parties: 1. Plaintiff – who is suing 2. Defendant – who is being sued

Civil Trial Procedures If more than one person, or party, has suffered the harm, they should sue together as plaintiffs. If more than one person, or party, is responsible for the loss, they should be sued as defendants. The process of suing is called litigation and the parties in the action are the litigants

Civil Trial Procedures Minors may sue on their own for up to $500. If the minor is suing for more than $500, then a litigation guardian (responsible adult – not necessarily a parent/guardian) must act for the minor.

Civil Trial Procedures All litigants prepare and present the facts of the case. The burden of proof – onus – is on the plaintiff. The plaintiff does not have to prove the case beyond a reasonable doubt. The plaintiff must prove the case on the balance of probabilities.

Civil Trial Procedures Balance of Probabilities – the basis of the greater likelihood. The defendant will then try to show that his, or her, version of the story is what really happened. It is up to the Judge to decide which litigant is more credible or believable.

Filing and Serving a Claim The plaintiff must decide if there is a cause of action (a valid reason for suing). The court in which the action will be heard depends on the amount the plaintiff is suing for. Small Claims Court -- $3000 to $10 000 depending on the province. Provincial Supreme Court if the amount exceeds the small claims limit.

Filing and Serving a Claim Not all actions go to court, but it is often the only way when the litigants have different versions of the same event.

Filing and Serving a Claim When a claim is filed, it must include the following: The plaintiff’s full name and address. The defendant’s full name and address. The amount of money being claimed. A brief, and clear, summary of the reasons for the claim. The claim must be mailed, or hand delivered, to the court clerk, along with a filing fee.

Filing and Serving a Claim The plaintiff chooses the location of the court (eg. Hamilton, Niagara, etc.) The plaintiff receives a copy of the summons and the court clerk keeps a copy. The defendant is served with a copy of the summons.

Filing and Serving a Claim If the defendant agrees to the full amount of the claim, he/she can pay the amount, plus the court costs, to the Small Claims Court office. This must be done within 10 to 30 days (depending on the province). The court will then pay the plaintiff the full amount of the claim. The dispute is now settled.

Filing and Serving a Claim The defendant can prepare a defence/reply is he, or she, does not believe that the plaintiff should receive the claim. If the defendant disputes the claim, he/she must do so within 10 to 30 days of receiving the summons. A copy of the defence will be sent to the plaintiff by the court office.

Other Options: Payment into Court The defendant can pay part of the amount to the court office and the plaintiff can either accept this amount or continue the action in hopes of receiving the full amount.

Other Options: Counterclaim The defendant is saying that the plaintiff is responsible for the damages. The defendant must defend the original claim before the counterclaim is proceeded with. The Judge will then determine which claim is more credible, or likely, and who will receive what from whom.

Other Options: Third Party Claim The defendant can claim that another person, or party, is responsible for the problem. The case will then proceed with all three parties present. The Judge will then determine which claim is more credible, or likely, and who will receive what and from whom.

Other Options: Out-of-Court Settlement Either litigant can make a formal, or informal, offer to settle instead of going to trial.

Pre-Trial Conference Last chance to resolve the dispute before trial. Both litigants have an informal meeting with the Judge to negotiate an understanding. A basic summary of each case must be made to ensure that there are no surprises in court. The Judge can give an opinion as to a possible judgement. (This is not the Trial Judge). If an agreement cannot be reached, a trial date will be set.