Civil Litigation / Corporate Commercial Law
Selwyn Pieters has significant litigation and trial experience in the followwing areas: Employment Litigation; Defamation; False Arrest/False Detention; Breach of Contract; Breach of the Charter of Rights and Freedoms; Lawsuits against public authorities (Experience include: drafting legal documents; attending on motions, mediations, discoveries, trials and appeals).
Before I begin to explain this procedure, I would like to point out to you that there are always two sides to every case. I caution you not to be overly confident about the outcome of your case, especially since the unsuccessful party is usually required to pay the successful party a portion of his or her legal costs. I will discuss the strengths and weaknesses of your case throughout the course of the litigation. No matter what the outcome of the case, you will be responsible for my entire legal account, which is based upon the hourly and per diem rates set out in the Retainer Agreement.
I rely heavily on my client throughout for information to facilitate my preparation. This saves me time and consequently saves you money. Remember also that you know much more about the details of your case than I do. Accordingly, I require that clients provide me with a written report setting out the circumstances leading up to the case (i.e your history of the matter) , so that I might be as fully informed as possible.
The process involving litigating a matter under the Ordinary and Simplied rules are almost similar, except with the simplified procedure there is no examinations for discovery:
• Statement of Claim or Notice of Action
The filing of any Statement of Claim or Notice of Action is subject to any existing Statutory Limitation Period. You must inform our firm if it has been more than 1 year since the incident giving rise to the action took place.. If your matter does not violate any limitation periods, either a Notice of Action - a document that allows for an action to be initiated before submitting particulars regarding your claim - or a Statement of Claim, which particularizes your claim will be issued. The Statement of Claim will set out the issues of the case, the damages you are seeking, and the jurisdiction where your case will be heard.
• Service of Documents
All documents must be filed within the court and served upon the other party.
•Statement of Defense
If a Statement of Defence or a Notice to Defend is not received within 20 days of service of the Statement of Claim, a motion for Default Judgment will be made to the court. The Statement of Defence explains how the opposing party intends to defend the claim, and the Notice to Defend provides the party with additional time to complete their pleadings.
• Default Judgment
A default judgment is a motion that can be brought if the opposing side failed to defend against the issues articulated in the Statement of Claim. The court will deem the facts set out in the Statement of Claim as true and render a judgment based on those facts.
•Counterclaim, Crossclaims and Third Party Pleadings
Once a claim has been issued, the opposing party has the right to respond on the same facts indicating that they are entitled to damages. This is known as a Counterclaim. Furthermore, if the original Statement of Claim has more than one Defendant the two Defendants can sue each other, this is a Crossclaim. Finally if a party that was not originally involved in the original Statement of Claim takes issue with the Statement of Defence, they too can respond with a claim, this is a Third Party Claim.
A reply is a pleading which addresses issues that were raised in the Statement of Defense that were not addressed in the Statement of Claim.
• Affidavit of Documents
It is important that after the pleadings have been made that the list of all documents which we intend to use for trial are compiled and sent to the opposing party. The Affidavit of Documents is a collection of all the material which you indicate under oath, reflect was, and has been, in your possession. Certain documents may warrant continued privacy, these documents are known as privileged. The name of these documents must also be disclosed but not their content unless the court orders otherwise. By completing the Affidavit of Documents it allows for you to begin questioning the other side in what is known as Examination for Discovery.• Examination for Discovery
An examination for discovery is a very important step in the civil process. Preparation for Discovery requires your involvement and review of our questions as well as your suggestions. This step involves both sides meeting at an examination center, and taking the opportunity to question the opposing side’s clients and witnesses. The process can be very lengthy and can span days per potential witness. To shorten the length and cost to you, certain admissions regarding documents, place, and time will be asked of you before proceeding.
Within the Civil Process disagreements can arise between the opposing sides which can hinder the progress of the claim, such as production of documents, failure to satisfy promises that were made during the Examination of Discoveries (known as Undertakings). When this occurs, motions are brought before the court and a judge makes a determination on that specific issue. Once a judge renders a decision the issue has been disposed of and any cost rulings are final. If costs for a motion are not satisfied, the party who is in breach of the order cannot proceed without reprisal.• Pre-Trial Conference
Pre-trial hearings are meetings with the two opposing sides and a judge. It is here that there is a discussion regarding the potential witnesses for trial and what the issues will be. The Judge will opine regarding his impressions of the case and possible room for resolution.
All trials take place in the Superior Court of Justice.