Navigating the Ontario Court System By Joel Levitt

Navigating the Ontario Court System By Joel Levitt Fryer Levitt Lawyers 421 Eglinton Avenue West, Suite 2 Toronto, Ontario, M 5 N 1 A 4 www. fryerlevitt. com

Step 1 : Avoid the Court System • Costs – Legal – Time expended – Man Hours lost • Resolution time – Small Claims Court 6 months to a year – Superior Court - Simplified Rules 1 - 2 years – Superior Court - Ordinary Procedure 2 years and up

Step 2 : Limitation Periods • The Limitations Act, 2002 – Came into force in 2004 – In large part sets two year time limit to commence action – Two years from when • Extending the Limitation period – Acknowledgements of debt

Step 2 : Limitation Periods • Section 13 The Limitations Act • If a person acknowledges liability in respect of a claim for payment of a liquidated sum, the act or omission on which the claim is based shall be deemed to have taken place on the day on which the acknowledgment was made. • An acknowledgment of liability in respect of a claim for interest is an acknowledgment of liability in respect of a claim for the principal and for interest falling due after the acknowledgment is made.

Small Claims Court • Dollar Limitation – $0 -$25, 000. 00 • Legal Limitation – Cannot seek declarations

Small Claims Court • Step A Pleadings – Plaintiff’s Claim include documents • Where to start action • Default Jurisdiction is where Defendant resides • Plaintiff can seek to change jurisdiction – Defence 20 days after service – Defendant’s Claim 20 days after filing of Defence – Default Judgment if no Defence

Small Claims Court • Step B Settlement Conference – Preparation • Documentation and Witness list • Witness Statements • Offers to Settle and Cost Consequences (Double Costs = 30%) – Attendance • Client attendance required – by telephone as an option • Short summary of action • All Documents should be available • Settlement strategy – bottom line

Small Claims Court • Step C Trial – Preparation • Additional Documentation at least 30 days in advance • Witness - Summons, Affidavits, Signed Statements • Offer to Settle - if not previously made – Attendance • All witnesses unless appearing by Affidavit or signed statement

Small Claims Court • Step D - within 30 days Appeal Rehearing Divisional Court Small Claims- Error of law New evidence

Superior Court of Justice • Dollar Limitations – $25, 000 and up • Legal Limitations – None

Superior Court of Justice • Choice of Procedure Simplified Procedure Mandatory if claim under $100, 000. 00 Ordinary Rules Mandatory for certain types of claims Construction Lien

Superior Court of Justice • Simplified Procedure – Must be used for cases under $100, 000. 00 – Cost Consequences if fail to use – Can be used for cases over $100, 000. 00 – Advantages • Speed • Cost – Disadvantages • Difficult for fact or paper intensive cases because of limited discovery

Superior Court of Justice • Simplified Rules (76) – Must be used for cases under $1000, 000. 00 – Can be used for cases over $100, 000. 00 – Advantages • Speed • Cost – Disadvantages • Element of surprise • Difficult for fact or paper intensive cases

Superior Court of Justice • Steps under Simplified Procedure Pleadings Documentary Discovery Examinations for Discovery Mediation Pre- Trial

Superior Court of Justice • Documentary Discovery • Production and delivery of all relevant documents • Delivery of complete Witness list including full contact information for each witness • Examinations for Discovery • Limited to two hours per side

Superior Court of Justice • Mediation • Out of Court • Private without prejudice settlement discussion • Must take place prior to trial • Should take place prior to pre-trial • Toronto Mediation Office as effective tool to avoid a stalling Defendant • Mediation Briefs • Mediation Strategy

Superior Court of Justice • Pre-Trial • In court before Master or Judge • Private without prejudice settlement discussion • Must take place prior to trial • Used to settle and/or narrow issues • Court can make only procedural orders • Court cannot force settlement • Offers to Settle and cost consequences

Superior Court of Justice • Type of Trials Ordinary Trial Summary Trial Limited Exam & Cross Affidavit Evidence 10/50 rule

Superior Court of Justice • Ordinary Procedure • Discovery Plan • Documentary Discovery – Copies only if other side pays – No Witness List required • Motions • Examinations – Limited to 7 hours per side • Trials – Regular trial only – jury trials available

Superior Court of Justice • I MADE IT THROUGH BUT WHERE‘S MY MONEY? • Collection • Garnishments – Bank Accounts, Contracts, Wages (20%) • Writs of Seizure and Sale – Land or Personal Property – 6 years – Sheriffs Sale • Judgment Debtor Examinations – 1 per year