So you’ve read Some Things You Should Consider before Deciding Whether To Sue and have carefully considered your options.
You’ve also read Is It Too Late To Sue, Or Be Sued? Limitation Periods in Ontario and your lawyer has advised you that it is not too late to sue (i.e. your claim is not barred by the applicable limitation period).
You know that you may need to spend a lot of time and money in bringing and concluding a civil action. You know that you may not always be able to get what you want in the end. You know that you may be held responsible for the other party’s legal costs if you lose.
With this knowledge, you decide to go for it. But you can’t do it alone.
Wisely, you have decided to seek professional legal advice to commence your claim.
What do you need to do?
What can you expect?
The initial steps to commencing an action are outlined below.
1. Gather what you will need
• Provide copies of relevant documents to your lawyer, e.g. contracts, correspondence, receipts, invoices, medical reports and any other proof of loss.
2. Meet face-to-face with your lawyer
- First, ensure your selected lawyer does not have a conflict of interest. Confirm that he has done a conflicts search of his internal records using the legal names of all the parties to rule out a conflict of interest.
- In many situations your lawyer will be required by the Law Society’s rules to identify and/or verify your identity. Don’t take this personally. He is just doing his job.
- Provide a detailed version of the events, including relevant dates, locations, parties and other information. Prepare an event chronology. Include references to key documents.
- Provide any written notes you have prepared.
- Ask the lawyer his opinion about whether the facts in your case give you the right for redress in court (“cause of action”); i.e. whether you have a sound legal basis for a claim.
- Tell the lawyer what relief you want. Discuss various remedies with the lawyer, such as damages, a declaration, an injunction, restitution and any other remedies you think might be available in your particular case.
- Be aware of your obligation to preserve any original, relevant documents in your power, possession or control, including electronic documents.
- Ask questions and take notes. Ensure that you know the next steps to be taken by both you and your lawyer and when they must be taken.
- Review the lawyer’s retainer agreement and be sure you understand it.
- Review and approve the demand letter your lawyer has prepared before he sends it.
- Discuss with your lawyer the court and place where the proceeding will be commenced.
- If the claim is for damages (see Types of Damages in Civil Litigation), your lawyer will advise you whether the action falls within the particular court’s monetary jurisdiction; for instance, whether the action falls within the monetary jurisdiction of rule 76 ofthe Rules of Civil Procedure (Simplified Procedure) or the Small Claims Court under section 23 of the Courts of Justice Act.
- Ask whether you may be required to pay security for costs under r. 56.01.
- If your claim is of a nature that permits a jury trial, discuss with your lawyer this option.
- Discuss with your lawyer whether your opponent might have a valid “counterclaim” against you. For example, suppose you have entered into a contract to sell some sports equipment to your customer. Your customer did not pay you because some of the equipment manufactured by you were defective. If you sue your customer to recover the price of the goods sold, your customer might “counterclaim” against you in the same civil action. Your customer might seek monetary compensation from you for any damages that she has suffered because some of the equipment was defective. If this happens, you may have to face a prolonged lawsuit and may end up gaining nothing.
3. Review the draft statement of claim prepared by your lawyer
- You lawyer will draft a Statement of Claim and ask you to review it.
- Read it carefully and identify any errors, omissions and inaccuracies.Ensure that all material facts have been included.
4. Your lawyer will issue and file the statement of claim
- Once your Statement of Claim has been finalised, your lawyer will look after having it issued by the Registrar at the court office where the proceeding is being commenced and paying the applicable fee to the Minister of Finance.
- The Registrar will date, sign and seal the statement of claim with the court seal. This is called “filing”. The claim will be assigned a court file number that must appear on all subsequent documents in the proceeding.
- Once the statement of claim has been issued, your lawyer will file a copy with the court.
- Your lawyer will retain a copy of the claim for his file and send a copy to you.
5. Your lawyer will serve the statement of claim on the defendant (s)
- Your lawyer will ensure that the statement of claim is properly served on the defendant. The formal process by which a party named in a legal action receives a copy of the legal documents filed to start or to defend a legal action is called “service” or “being served”.
- The statement of claim must be served on the defendants within six months after being issued unless you have obtained a court order directing otherwise.
6. Your lawyer will advise you when the statement of defence must be delivered
- As your lawyer will explain, where the defendant is served in Ontario, the defendant must deliver a statement of defence within 20 days of being served with the statement of claim (r. 18.01(a)). The term “deliver” here means the service and filing of a document with proof of service (r. 1.03(1)).
- The defendant has an additional 20 to 40 days to deliver a statement of defence where the defendant has been served outside Ontario, North America or elsewhere (rr. 18.01(b)–(c)).
- Your lawyer will diarize the applicable date so that he is in a position to note the defendant in default if no defence has been delivered within the required time period (r. 19.01(1)).
- If a defence is received, your lawyer will advise you whether a reply is necessary (r. 25.08).
Your lawyer will keep you posted of next steps as the litigation progresses. For instance, your lawyer might suggest bringing a certain motion or motions about the statement of defence. Examples include: summary judgment, particulars, strike out (no reasonable defence), strike out (scandalous, frivolous or vexatious), strike out (abuse of process), point of law, stay, and special case.
We at HLF take pride in assuring that we keep our clients informed every step of the way. We understand that your decision to sue is important to you and that you deserve to know what is happening to your case. We will take the time to explain to you what is the current status of your action and whether there is anything you need to do, and if so, when.
If you’re thinking of suing, or have already decided to sue, give us a call. We can help get your action on track and achieve success.
If you are involved in a dispute requiring legal assistance or if you have received court documentation requiring a response, obtain legal advice immediately.