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Steps in a Lawsuit: Appeals

If, following a Supreme Court trial, a party is unhappy with the decision of the judge, they have the right to appeal the decision to the Court of Appeal. This must be done within 30 days of the decision being rendered.

The two typical grounds on which a party would appeal a trial decision are either that the judge got the law wrong or got the facts wrong. The level of scrutiny the Court of Appeal will give to the decision depends on which of those two grounds are alleged. This is called the standard of review. The Court of Appeal expects that judges will get the law correct and, as such, will more heavily scrutinize their decision to make sure they got it right. When it comes to the facts of a case, the Court of Appeal is more deferential to trial judges because, of course, they got to sit through the trial and hear the evidence. It’s only when the judge clearly got a fact wrong and, had they not, the decision would have been different, will the Court of Appeal intervene.

The appeal process consists of the appellant filing a notice of appeal. They will then be responsible for ordering and filing a transcript of what was said at the trial and books of exhibits that were entered into evidence. The appellant and the other party resisting the appeal, called the respondent, will then file factums that set out their position on the appeal.

The parties will then make arguments before the Court of Appeal. The Court of Appeal will consist of a panel of judges, usually 3 although in important cases 5 judges will hear the appeal. The appellant makes their submissions first followed by the respondent. The appellant is then offered an opportunity to respond.

As with trial judges, the Court of Appeal will usually reserve making their decision to a later date and, when that time comes, issue written reasons. The Court of Appeal’s options are generally to allow the appeal in whole or in part, or dismiss the appeal. If the appeal is allowed, the Court of Appeal can overturn the trial judge’s decision on the issue under appeal and replace it with their own decision. Another option is to send the matter back to trial to have the issue re-determined.

Steps in a Lawsuit: Costs and Cost Assessments

Once a lawsuit has settled or been decided after a trial, the parties must still deal with the matter of court costs. Known simply as “costs”, these are an amount of money meant to compensate a party for the time and expense of having to participate in a Supreme Court case. When a party has a lawyer, costs help offset the party’s legal fees. Generally, only the party who is successful is entitled to costs, which are payable by the unsuccessful party. A party does not have to win at trial to be successful. If a case settles before trial and involves the payment of money from the defendant to the plaintiff, the plaintiff is still entitled to costs. Conversely, if a plaintiff discontinues a lawsuit against a defendant, the defendant would be entitled to costs. The amount a successful party will receive for costs depends on the stage of the litigation at which the case resolves and the difficulty of the case. For each step in the litigation, the Supreme Court Civil Rules provides a range of units that the successful party can claim. The more time spent or work done on a particular step, the more units the party can rightfully claim. Those units are then multiplied by one of three set dollar amounts. The more difficult the case, the higher dollar amount the party can attempt to claim. The product of this equation is the amount of money the party will receive as costs for that particular step. For example, if a party claims 5 units for exchanging documents at a rate of $110 per unit, the party could be entitled to $550 + tax for the time and expense of having to exchange documents. If the parties cannot agree to the amount of costs payable, they can apply to a Registrar of the Court to assess the amount of costs the successful party should receive. It should be noted that there are a number of rules relating to a party’s entitlement to costs, the amount, and when they are to be paid.

Steps in a Lawsuit: Trial

If the parties are unable to resolve their dispute themselves, the matter will proceed to trial. Trials will either be heard by a judge alone or by a judge with a jury.

In essence, a trial consists of each party presenting evidence that they believe proves the point they’re trying to make. The other party always has an opportunity to challenge that evidence to see how it holds up under scrutiny.

Evidence typically comes in the form of testimony given by witnesses. The party who calls a particular witness to give evidence will begin by asking questions of the witness. This is known as direct examination. The opposing party will then get to cross-examine the witness. Unlike direct examination where the witness can’t be asked leading questions, in cross-examination, suggestions and propositions can be put to the witness to test the credibility and reliability of what they are saying. If something arises on cross-examination that could not have been dealt with by the party calling the witness, that party will be able to re-examine the witness on those discrete points.

Documents are another common type of evidence. These can go into evidence either by agreement or a rule of law, or through a witness who identifies the document.

The plaintiff always goes first. After giving an opening statement to tell the court what the case is about, the plaintiff will call their witnesses who will be subject to cross-examination. At the end of the plaintiff’s case, the defendant will give a brief opening statement and call their witnesses. Once both parties are done presenting their cases, the plaintiff will give his closing submissions. The defendant will then give his closing submissions. As with questioning witnesses, the plaintiff will be given an opportunity to briefly respond to what the defendant said.

The judge or jury will then give their decision, known as the verdict. There is no telling how long it will take for a verdict to be rendered. Juries typically give their decision quicker than a judge sitting alone. Judges typically reserve judgment meaning they go away for a while to ponder the evidence and come to a considered opinion. When this happens, the judge will issue written reasons to both parties.

Steps in a Lawsuit: Trial Management Conference

A trial management conference (TMC) is required in practically all Supreme Court civil lawsuits. A TMC is a hearing before a master or judge to ensure that the parties are ready to proceed to trial as scheduled.

Before a TMC occurs, each party must file and serve a trial brief. A trial brief summarizes the matters at issue in the lawsuit and the filing party’s position on them. Importantly, the trial brief lists the witnesses the filing party intends to call at trial. For each witness, the party must provide their address, the issue about which they will be testifying, and the anticipated length of their testimony. If a party intends to call a person to testify at trial, they generally have to be listed in that party’s trial brief. If not, the trial judge may prevent a proposed witness from testifying. Trial briefs also set out any expert reports the party intends to tender at trial, any orders already made that will affect the trial, and any orders the party intends to ask for at the TMC.

While parties do not have to attend TMCs in person if they are represented by a lawyer, they do need to be available by telephone. This is because, at a TMC, the preside master or judge can be asked to facilitate settlement discussions. However, this rarely happens.

Steps in a Lawsuit: Negotiation and Settlement

Once all the facts of a case are known, the parties can begin negotiating to see if a settlement is possible. While this can happen at any stage of the litigation, it most generally happens after examinations for discovery.

Negotiations are conducted on a without prejudice basis. This means that anything a party says during negotiations cannot be used against them at trial. This allows the parties to have a frank discussion about the merits and weaknesses of the case.

If the parties or their lawyers are unable to reach a negotiated settlement on their own, they can enlist the help of a mediator to help them bridge the divide.

If the parties are able to reach a negotiated or mediated settlement, the party paying or giving up something (usually the defendant) will require the other party (usually the plaintiff) to sign a release essentially stating that they won’t sue that person again based on the same subject matter. Another document called a consent dismissal order may also be filed with the court registry depending on where in the litigation the case settles.

Parties who are unable to settle their disputes will proceed to trial.  

Steps in a Lawsuit: Applications

At any point during a lawsuit, a party can make an application to the court seeking any number of things. Generally, a party makes an application to get something that will help them either prosecute or defend against the lawsuit. For instance, if a party wants more documents, they can make an application for them. If a party wants to adjourn a trial, they can apply to do that. In personal injury cases, defendants or their insurance companies can apply for an order that the plaintiff submit to an independent medical examination by a doctor of the defendant’s choosing. The list is endless.

The person making the application is called the applicant. The application is made by filing and serving a notice of application, which sets out the factual and legal basis for the orders sought by the applicant on the application. The applicant must also file and serve affidavits in support of the orders they are seeking. Once served with these materials, the party responding to the application files an application response and any affidavits they want to file in support of their position on the application.

Depending upon the orders sought, applications will be heard by either a master or judge of the Supreme Court. The parties or their lawyers will then attend at court to argue the issues and the master or judge will then give their decision.

Steps in a Lawsuit: Examinations for Discovery

Examinations for discovery, commonly referred to as simply discoveries, allow one party or their lawyer to question the other party under oath about matters at issue in the lawsuit. Short of a trial, this is probably the most intense and important part of a lawsuit for parties.

Discoveries are done for several reasons. First, they are an information-gathering exercise. Up to this point, much of what one party knows about another is limited to what’s contained in the documents that have been exchanged between the parties. These often don’t illuminate the entire picture and questions naturally arise out of these documents. Second, discoveries are a great opportunity to get admissions out of a party. Admissions are things that, generally, help one party and hurt another. Finally, discoveries give the examining party a chance to see what kind of witness the party being examined would be if the case proceeded to trial. Does the party seem credible? Reliable? Likeable? All these things are relevant to how the lawsuit proceeds going forward.

While answering questions might sound easy, there are several things that parties being examined should keep in mind. First, because the discovery is done under oath, it is critically important to tell the truth and be as accurate as possible. This is so because a party who says one thing at a discovery then says a completely different thing at trial can have their credibility impeached. Second and as a corollary, the party being examined should ensure they understand the question being asked. If a party doesn’t understand the question, they risk giving an inaccurate answer that could later be used them at trial.

There are many other tips that a party being examined needs to remember before proceeding to a discovery. Overall, it requires a great deal of thoughtfulness and should not be approached lightly.

Steps in a Lawsuit: Exchanging Documents

Once pleadings have been filed and exchanged, the next step in a lawsuit is for the parties to compile and exchange all documents in their possession or control that are relevant to the lawsuit. Given that the pleadings define the matters at issue in the lawsuit, they will form the basis for determining what documents are relevant and should be disclosed. For instance, in a personal injury case, a plaintiff’s medical records would be relevant to whether they were injured or not. In a breach of contract case, the contract alleged to have been breached would be relevant to establishing that there (a) was a contract between the parties, and (b) what each party’s rights and obligations were under that contract.

Each party, once having compiled all such documents, will list each of them on a list of documents. This list serves as a quick and easy reference for determining what documents the parties have. These lists are provided to the other parties who can then determine what documents they would like to request.

If a party who receives a list of documents from another party thinks that the list does not contain everything that it should, the party can demand the other party amend their list of documents and provide the documents that the party thinks should have been listed.

Just because a document is relevant to a lawsuit doesn’t mean that it has to be disclosed. Notably, any documents that fall under one or more categories of privilege need not be exchanged. For instance, any communications between a party and their lawyer, while relevant, would fall under solicitor-client privilege and therefore need not be exchanged.

Parties to a lawsuit have a continuous obligation to let each other know of relevant documents as and when they become available. In cases where new documents arise or become known over time, a party can serve an amended list of documents.

Steps in a Lawsuit: Starting and Responding to a Lawsuit

A lawsuit involves one person suing another person for something. In Supreme Court, the person who starts a lawsuit is called the plaintiff. The lawsuit is started by filing a notice of civil claim with the court registry. The notice of civil claim sets out the factual and legal basis for the claim, and what the plaintiff is seeking.

The person being sued is called the defendant. Once the notice of civil claim is served on the defendant, the defendant can file a response to civil claim that, similarly, sets out the factual and legal basis for opposing the claim.

If the defendant believes he has his own claim against the plaintiff, he can file a counterclaim, which is similar in form and content to a notice of civil claim. The plaintiff, once served with the counterclaim, can file a response to counter claim.

If the defendant believes that another person is to blame for the plaintiff’s losses, he can bring that person into the lawsuit by filing a third party notice. Once served with the third party notice, that person, now called the third party, can file a response to third party notice, setting out their position on the matter.

Collectively, these documents are called pleadings define all matters at issue in the lawsuit.

I have Separated from my Spouse. Can I make a New Will?

If you and your spouse separate, you can make a new will before you have finalized your divorce and other related matters such as property division and support. However, if you were to pass away, your family law claim must be resolved before any family assets that are supposed to pass through your estate are distributed.

Estates are often distributed by way of the “residue” as opposed to distribution of specific assets. The residue of your estate is the value of your estate after payment of debts. Distributing your estate by way of the residue can help to avoid the need to update your will if your assets change.

Upon resolution of your family law claim, any family assets that you were entitled to would pass to and form part of your estate, and be distributed to your beneficiaries in accordance with your new will.