Typically in Ontario, the Ontario Superior Court of Justice is a major forum for civil lawsuits. There are two ways a lawsuit proceeds through the Superior Court: either through an Application or an Action.*
Notice of Application
Applications are started by a Notice of Application, and proceed by way of written materials. These materials include affidavit evidence that can be the subject of cross-examination by the opposing party. The parties typically also agree to a general timeline for when the materials are exchanged and cross-examinations take place. The judge hearing the Application relies on this material in making his or her decision. Usually, Applications proceed to the hearing faster than a trial of an Action. Applications in many jurisdictions can be heard within a year of serving the Notice of Application.
Notice of Action
An Action, on the other hand, is started by way of Notice of Action and/or Statement of Claim. Usually, the primary relief sought is a monetary award. Actions are much more involved and can be much more unpredictable than an Application. It can take several years for an Action to be tried, which can be before a judge or a judge and jury. There are several mandatory stages in an Action that must be completed before heading to a trial, including:
- Examinations for discovery,
- Mediation (in Ottawa, Toronto and Windsor)
- A pre-trial conference.
During the course of litigation, there may be disputes that arise, such as whether a particular document should be produced by one of the Parties. Disputes such as these that occur under the umbrella of a litigation are often settled by way of a motion. Motions can lengthen the time it takes to proceed to the hearing or trial of the matter and often significantly increases the cost of litigation.
It should be clear by now that a Party to an Application or an Action must be familiar with the procedural requirements involved with litigation. Knowing the procedural ins and outs are arguably more important than the merits themselves—a point which often confuses litigants. If a Party feels they have a winning or defendable case on the merits, they often do not understand the quirks of procedure, which impacts whether certain evidence is admissible or whether a case is ready for trial (these examples go beyond the scope of this article).
A highly knowledgeable and skilled litigator is the most important asset when proceeding with a civil lawsuit.
*There are separate rules and forms for applications in Family Court or Landlord and Tenant Board, for example, which are not being discussed here.