litigation law I

Service

To provide document with the other side in accordance, to the Rules of Court. For example, the legal assistant at the Defendant’s law firm must arrange for service of the Defendant’s filed

pleading or pleadings on the Plaintiff.

Statement of Claim/originating document needs to be served in the following ways:

a) leaving a copy of the document with the individual

b) sending the document with registered mail or courier sent to receiver

Service

To provide document with the other side in accordance, to the Rules of Court. For example, the legal assistant at the Defendant’s law firm must arrange for service of the Defendant’s filed

pleading or pleadings on the Plaintiff.

Statement of Claim/originating document needs to be served in the following ways:

a) leaving a copy of the document with the individual

b) sending the document with registered mail or courier sent to receiver

Personal service delivered by the process server

By delivering a copy of a document. With a separate fee the process service will deliver the Affidavit of Service

Applications Without Notice may only be brought up if:

there are exceptional circumstances which are fully disclosed to the court; and

the application is about service

Making an application without notice

in desk application - means that the paperwork is sent to the courthouse and lawyer decides not to make the application in court

Desk application

courthouse staff deliver the documents to an Applications Judge who considers the application for his/her office

Private chambers

office of the applications judge or justice at the courthouse

Desk Order granted in private chambers

If the Applications Judge grants the draft order he/she will sign

•The courthouse will file it and upload filed copies of your documents to your digital filing account

chambers

a court room of the Court of King’s bench where civil interlocutory applications are heard and decided

Serving the Respondent

the respondent must be served with filed copies of the Affidavit and Order

Substitutional service

service using a method that is not in the Rules of Court

When impractical to serve the other side, lawyer may get an Order for Substitutional Service for the Plaintiff

Drafting an Affidavit

witness - is the deponent

Commissioner - gets the Deponent to affirm or swear

must include relevant details, dates, complete address

Documents needed for Applications Without Notice

Affidavit - has relevant facts about the application

Draft Order -a doc, which sets out what lawyer expects the Applications Judge or justice to decide

Applications for Substitutional Service

decided by Applications Judge

Interlocutory Application

A court application about a procedural issue, which may occur anytime before the trial of a case.

Applications Notice

•Application on notice means that the Applicant gives the Respondent advance notice of the application. 

Applications without notice (also known as ex-parte applications)

application without notice, the Applicant does not inform either the courthouse or the Respondent about the application before it occurs

Pleading

a document filed in court by Counsel for a party which sets out the particulars of the party’s claim and the allegations against the other party. (eg. civil claims, counter claims, third party claims)

particulars

the essential details of the claim or defense

Pleadings examples include:

Statement of Claim, Statement of Defense and a Counterclaim

Statement of Claim

header, statement of facts, and remedy sought (ie. damages)

Statement of Claim

follow naming rules,

Statement of Claim - when to serve

must serve the defendant within 12 months of the filing date

-an extension possible, lawyer must make an interlocutory application for this extension and a court order is needed, must have a good reason why the claim has not been served yet, an extension up to three months can be given

interlocutory application

application is an application in court during a lawsuit, for an Order from an Applications Judge or Justice to resolve a procedural issue in your lawsuit.

expiration of a statement of claim

if service deadline expired it cannot be extended and claim expires.

interlocutory application

• the party making the application is called the Applicant

• Respondent is the party on the other side

Chambers

Applications are made here, a court room at the Court of King’s Bench, proceedings are informal and fast

What are different types of service

personal service - someone must give the document to the individual - by the process server. The person served is not required to read or understand the document.

Recorded mail - any method where the recipient must sign the document

Recorded Mail

any method where the recipient must sign the document

Lawyers may use this

• If a person is afraid of being sued, they may not sign for the document

• someone else may sign the document

• you must obtain the signature copy (can be difficult)

Service out of AB

You must either:

a) serve as set in AB Rules

b) Serve by the following rules of other jurisdiction in which the document is served ie. Ontario

Serve outside of Canada

•To serve a party who is outside of Canada, you need a Court Order. 

This involves an interlocutory application, without notice, so you will prepare an Affidavit and draft Court Order. 

This application is most likely a desk application.

Service about subsequent documents

You can serve all documents from now on in either of the following two new ways:

by fax to the number on the pleading; or

by leaving the document at the address for service. There is no need to get the party’s signature.

The Rules of Court do not say anything about service by email.

What are the Defendant’s pleadings

Statement of Defence, or

Demand for Notice

Possibly

Counterclaim

Third Party Claim

Notice of Claim Against Co-Defendant

Request for Particulars

Statement of Defence

Purpose is to deny liability and damages

You can exaggerate the defendant’s one-sided situation

The lawyer claims why the defendant is not responsible (why its called a Statement of Defence)

-state the facts particulars necessary to establish any defence

Demand for Notice

•This pleading is filed when the admits liability (fault) but disputes damages

Judgment Proof Defendant

If a person has few assets, a low income and no insurance, the person is called judgment-proof, because it would be impossible for a Plaintiff to collect in this situation.

You cannot leave an individual destitute by taking all their possessions or salary.

Counterclaim

Pleading used if Defendant is suing the Plaintiff. A Statement of Defence also must be filed. 

Remedy is damages interest and costs.

Third Party Claim

•The Defendant must also file a Statement of Defence or Demand for Notice, and may also have a Counterclaim.

•This document has the same purpose as a Statement of Claim.