CIvil Prodocedure

The rules of court- part 1

foundational rules, sets out purpose and intent, puts and obligation on the parties to facility the quickest means of resolving a dispute

cause of action

the event that caused loss or damage to the plaintiff for which ther is a remedy of law

limitation period/act

usually 2 years from discoverability to issue your statement of claim, ultimate limitation period is 15 years

who can sue

adults, children, mental capacity, deceased, corporations (individuals, considered a person at law)

statement of claim- commencement of a claim WHAT IS INCLUDED

document outlining the parties involved, the material facts, the legal causes of action, the relief requested

statement of claim- time

must be served within 6 months of having been issued of leave must be sought to extend the time for service

statement of claim- method

registered mail, fax or email, acknowledgement of service, substitutional service per court order,

after receipt of statement of claim, 3 choices for the defendent:

defend (statement of defence within 20 days in sk, 30 days if served in canada or us, 40 days if served outside of canada or us), extend time for defense (a. notice of intent to defend which extends period by 10 days, b. demand for particulars which requests for more particulars and details of the claim, pauses the time until the defendant gets more details, c. have council ask for more time through an undertaking), do nothing (may get noted for default of defence

statement of claim- purpose

provide material facts needed for a defence, determine what is relevant

other types of pleadings

reply (deliver a reply disputing any new facts alleged by the defendant and adding anything that helps with defense), counter claim made by the defendant, cross claim (claiming against other defendants), third part claim (defendant can thirs party another party that they feel is responsible for the relief of the claim)

mediation

the only mandatory step, everything else is optional

at the close of the pleadings, mandatory mediation sessions happen, parties and lawyers meet with independent mediator paid for by the government to have discussions, confidential, not rulings (you facilitate settlement discussions), without prejudice (you cannot say “you said this at mediation”)

can save a lot of legal costs, and helps come to a resolution without going any further legally

affidavit of documents- document disclosure

disclosure (sworn statement of litigation attaching list of documents relevant to the action in the custody), production (each party has an opportunity to examine the other party’s documents that are not subject to privilege)

questioning

dene away from the courtroom, after document disclosure, many actions settle after this step, meant to lock you into your answers so that if someone later changes their answer your can hold them accountable,

pretrial conference

held if trial would take more than one day, parties complete a joint request for pre trial conference or the court can impose a date, parties lawyers and judge meet, parties prepare and exchange written briefs of law no less tan 10 days prior to the date of the pretrial

most matters will settle at pre trail

Trial

• the final step

• hearing of witnesses

• two types of methods of trial:

  • judge alone

  • judge and jury

• civil jury trials are made up of 6 jurors

ONUS or Burden of proof (civil trials)

• you’re required to prove every element of the case on Balance of Probabilities.

• more likely than not

• 
  

Beyond a reasonable doubt

for criminal trials

trial- set up and order

opening statements (plaintiff then defendant), plaintiffs case (plaintiffs examination in chief, cross examination, re examination), defendants case (defendants examination in chief, plaintiffs cross examination, defendant re examination), closing statements, verdict by judge (usually reserved but may occasionally get an oral judgement from the bench), verdict by jury (you get a decision quicker than not)

alternatives to kings bench trial

expedited procedure (still trial but much quicker), summary judgement application (were not hearing from witnesses, instead all signing affidavits and judge looks at those), settlement offers (without prejudice discussions, formal offers), small claims (prov court),

arbitration

used is business often, seperate process than kings bench, you’re hiring an arbitrator to settle the matter, more flexibility, promotes autonomy and is confidential

small claims procedure

claims under 50 000, less formal quicker and cheaper proceedings

business considerations- is it worth it to start a lawsuit

court costs (lawyer fees, plaintiff who is unsuccessful pays the costs, award vs cost amount), business costs (time and effort, promotes negotiation, business might be impacted in the future, reputation)