Civil Litigation

This firm handles the following types of civil disputes:

  • Insured Parties’ Claims Against Insurance Comapnies
    • Accident Benefits and Personal Injury
    • Fire or Other Loss
  • Claims by Property Owners
    • Purchase and Sale – Boundary Disputes – Construction Issues
  • Claims Regarding Wills, Estates, and Powers of Attorney
  • Other Contractual and Damage Claims
  • Guardianship Applications

Civil litigation is a legal dispute between two or more parties that seek money damages or specific performance rather than criminal sanctions. A lawyer who specializes in civil litigation is known as a “litigator” or “trial lawyer.” Lawyers who practice civil litigation represent parties in trials, hearings, arbitrations and mediations before administrative agencies, foreign tribunals and federal, state and local courts.

In civil matters the disputants can be individuals, corporations, estate trustees, governments or their agencies and other legal entities.

There is an endless array of types of civil disputes. No one court or tribunal is given authority to resolve all of the different types of civil problems. The Ontario Superior Court of Justice is the primary court in Ontario for civil matters which go to court. There are however, many other courts and tribunals charged with the specific authority to deal with specialized disputes. Examples include the Ontario Municipal Board, the Ontario Rental Housing Tribunal, the Ontario Consent and Capacity Review Board, etc.

Mediation and Arbitration of Civil Disputes

Mediation (also see Family Mediation)

Mediation is a process in which the parties resolve issues themselves with the assistance of a mediator. The mediator’s role is to act as the neutral facilitator. The mediator meets with the parties to identify the issues, listen carefully to each other’s point of view, consider options for settlement and create an agreement to resolve the dispute.

Parties can mediate with or without counsel present. Mediation, other than the mandatory mediation referred to above, is a voluntary process. The mediator, who may or may not be a lawyer, is not a legal advisor to either or both of the parties and has no decision making authority. In mediation, unlike almost any other process, the parties are given the chance to express themselves and be heard. Because the decision making authority rests with the parties, they will tailor a solution to their own needs. Parties are more likely to be satisfied with and bind themselves to a resolution which they have created themselves.

Mediation has a high success rate. It is said that 80 per cent of all issues taken to mediation are successfully resolved. Generally, mediation is a much faster and less costly process than litigation.

Mediation can be employed by parties at any stage in a dispute. Sometimes parties who were not willing to consider mediation at the beginning of a dispute (and who may be well along in the litigation progress) recognize that despite their investment in the litigation progress it will still be to their mutual advantage to resolve matters using litigation.

Arbitration

Arbitration is a process in which the parties choose an arbitrator to whom they give the authority to decide the issues in dispute. Parties will normally choose an arbitrator who has familiarity with the type of issue in dispute.

Civil Court Proceedings

The procedures for actions brought in the Ontario Superior Court of Justice are governed by the Rules of Civil Procedure (Regulation 194 Ontario E-Laws).

In general terms the steps in a civil court proceeding may be summarized as follows:

  1. A case is started by the service and filing of a Statement of Claim or Notice of Application. The defendant has twenty days to file a statement of defence and, if appropriate, a counter claim. Other parties can be added where necessary and appropriate.
  2. In some parts of Ontario, including Ottawa, the parties must participate in mandatory mediation before the case can proceed. A mediator meets with the parties and counsel to assist the parties to settle their dispute if possible.
  3. Each side has an opportunity to learn the details of the case to be presented by the other side before trial. This is called the discovery stage. Each side provides the other with a list of the documents to be used, witnesses to be called and a summary of their expected testimony, experts reports and particulars of damages being claimed. Each side has the right to examine (question) the other party under oath.
  4. Before the case goes to trial there must be a pretrial held before a judge who would not be the trial judge. The purpose of the pretrial is to give the parties a chance to settle with the assistance and encouragement of the pretrial judge. Each side provides the pretrial judge with a case brief. The judge meets with counsel (and occasionally the parties) to encourage settlement and where that is not possible to narrow the issues to go on to trial.
  5. Cases which are not settled go on to trial before a single judge or a judge sitting with a jury. Each side has an opportunity to call its witnesses and make submissions, following which the judge makes a decision.
  6. A successful party will normally be awarded costs, meaning that the loser has to pay part of the winner’s legal costs.
  7. Trial judges are required to apply the relevant and current Ontario law pertaining to the specific subject matter. The law is derived from the Ontario Statutes (see Ontario E-Laws) and case law. After a judge considers the facts, he/she normally will consider the facts in relation to the relevant statute and then look to the case law to see how other judges have interpreted the statute in relation to similar facts.
  8. Civil actions are a necessity in cases where the parties are unable to reach a private settlement. Civil actions tend to be slow moving and very expensive, but in cases which cannot settle, they are the only means to obtain a resolution to the dispute.
  9. In virtually all cases the losing party has a right of appeal either to the Divisional Court or the Court of Appeal. The appeal courts deal only with errors in law as trial judges are considered to be at a much better position to determine the facts.

Hammond Osborne can offer advice and representation for Civil Disputes.  Contact our law office to arrange a consultation.  We would be happy to answer any questions you have about your legal situation.