Legl 210 part 2: Litigation process

Litigation

The process of resolving disputes or legal conflicts through the court system.

Involves 2+ parties engaging in a formal legal proceeding to seek a solution to their disagreement.

Involves filing a lawsuit, presenting evidence, arguing legal points, and ultimately receiving a decision from a judge/jury.

Goal of litigation

To resolve the dispute in a fair and just manner according to the principles of law.

Steps of litigation

1. Jurisdiction: Decide which court should hear the case.

2. Pre-trial: Early steps before formal pleadings.

3. Pleadings: Written claims and responses. Plaintiff files Statement of Claim. Defendant files Statement of Defence.

4. Discovery: Exchange of information. Plaintiff provides affidavit of record ti the defendant, then defendant provides affidavit of record to plaintiff.

Discovery involves inspection if documents, questioning of parties and their witnesses by opposing counsel. During this stage, Settlement options may occur.

5. Discovery leads to mandatory mediation. Pre-trial conference.

6. Trial: Formal hearing of the case, counsel summarizes, judge instructs jury. Plaintiff presents evidence'; defendant responds.

7. Decision: Court delivers judgement. Reasons for decision or remedy.

Jurisdiction

When starting a lawsuit, the 1st step is to decide which court has jurisdiction.

2 step analysis:

1. Real and substantial connection: The plaintiff must prove that there is a real and substantial connection. A court may take jurisdiction if there is a strong link to the province. In tort cases, this exists when:

The defendant lives in the province.

The defendant carries on business there.

The tort occurred there or a related contract was made there.

Step 2 of Jurisdiction Analysis

Forum Non Conveniens: Even if jurisdiction is established, the defendant may argue another court is more appropriate. Courts weigh fairness, efficiency, costs, location of parties/witnesses, risk of conflicting judgments, and enforcement issues.

Forum Selection Clauses

If parties agreed in advance to a forum, courts usually enforce it, especially in commercial contracts between sophisticated parties.

Remedies

the plaintiff must decide what remedy to request. The most common remedy is monetary damages, which compensate the victim for losses:

•General damages: For estimated losses, such as pain and suffering or future lost wages.

•Special damages: Reimburse actual expenses incurred before the trial.

•Aggravated damages: Type of monetary award designed to compensate for humiliation, mental distress, or injury to dignity caused by the defendant’s conduct.

•Punitive/exemplary damages: Punish the wrongdoer for extreme or malicious behaviour; not meant to compensate the victim.

Judge enforcement

Once a court has issued a judgment in your favour, you may need to take steps to enforce the court order. This process generally follows three stages:

1.File the Judgment and Obtain Enforcement Documents

•File the Judgment: Ensure the judgment is officially registered with the court. This makes it legally recognized and enforceable.

•Get a Writ of Enforcement: This is a formal court order allowing you to take steps to enforce the judgment, such as seizing assets or garnishing wages.

2nd stage of judgement enforcement

Gather Information About the Debtor
Before enforcement, you need to know what the debtor owns. Methods include:

•Statutory Declaration: A written statement by the debtor about their assets and income.

•Examination in Aid of Enforcement: A formal court process where the debtor is questioned under oath about their finances and assets. This helps you identify what can be seized or garnished.

3rd stage of judgement enforcement

Once you know what the debtor owns, you can take steps to collect:

•Seize Assets: Court officers can take and sell the debtor’s property (e.g., vehicles, equipment, or bank accounts) to satisfy the judgment.

•Garnishment: A portion of the debtor’s wages, bank accounts, or other payments can be redirected to you until the debt is paid.