Civil Litigation is the legal process that we have in place to seek redress for a wrong done against an individual, a corporation or another organization. The aggrieved party is called the Plaintiff. The Plaintiff starts a Civil Claim seeking a remedy against the other party, who will be called the Defendant in the Civil Claim, often called an “Action”.
Initiating a Civil Claim: Plaintiff vs. Defendant
The Action may be brought in either the Alberta Court of Justice or the Court of King’s Bench. If the amount of the claim is less than $100,000.00 and does not involve an interest in land, it will usually be brought in the Alberta Court of Justice. Actions for claims involving any interest in land, or where the amount claimed exceeds $100,000.00 must be brought in the Court of King’s Bench.
Civil Litigation is complicated. In Alberta, a corporation or other organization must be represented by counsel at the Court of King’s Bench. An individual litigant may choose to be self-represented, but since litigation is complicated, with many Rules of Court and Court Processes to follow, many people still retain Civil Litigation Lawyers from Main Street Law LLP in Spruce Grove, Edmonton, or Drayton Valley to help them with their claims. Most people think of Civil Litigation lawyers as Court Lawyers.
Having a Basic Understanding: Efficiently Assisting Your Civil Litigation Lawyer
Having a basic understanding of the process can help you to help your Civil Litigation lawyer in an efficient manner – and to help yourself.
Unless you have prior experience with litigation, your introduction to the process may be when you receive service of legal documents, or when you consult with a lawyer over a problem that you are having with another. Civil Litigation cases take on many forms, which may include wrongful dismissal claims, contract disputes, Builder’s Lien rights; debt collections, Estate Litigation, and many other types of claims.
Pleadings: Outlining Legal Grievances in a Statement of Claim
The first phase of litigation involves the exchange of the pleadings. These are legal documents that are filed with the Court that outline the specific legal grievances, and Litigation starts with the filing a Statement of Claim by the plaintiff against the defendant. The Statement of Claim distills down the various objectionable actions, or inactions of the defendant into those wrongs that can be legally pursued in the courts. These are the causes of action. In the lower court, this document is called a Civil Claim, but it serves the same purpose as a Statement of Claim.
Not every perceived wrong will amount to a legal cause of action, although many will. There are specific elements that must be proven, with evidence for each cause of action. Your skilled and experienced Civil Litigation lawyer from Main Street Law LLP will help identify the causes of action that are supported by the facts in your case, and to plead these causes of action and the relevant facts in the statement of claim.
Filing and Responding: Statement of Claim, Statement of Defence, and Dispute Note
Filing of a Statement of Claim in the Court of King’s Bench starts the litigation process. The Statement of Claim then needs to be served on every defendant. A defendant served with a statement of claim has a limited time (20 days if served in Alberta) to respond.
Typically, this response will be to file a Statement of Defence, disputing the allegations in the Statement of Claim, and asserting legal defences to the causes of action that may be available. In the Alberta Court of Justice, this document is called a “Dispute Note”.
Importance of Document Gathering: Preparation for the Litigation Process
Whether you are entering as a plaintiff or as a defendant, it is advisable to begin getting together all of the information and evidence that you can, as soon as possible. Memories do not get better over time, nor are documents easier to locate later. It is not a wasted effort to begin gathering every document that you have available early on, as these will be needed soon enough, in the next stage of the litigation.
The defendant will often feel aggrieved on some issues and there is often a Counterclaim, in which the defendant brings an action against the plaintiff, either on some of the same issues as the plaintiff, or on new, but related matters.
The second stage of litigation is known as discoveries. There are processes in place to allow each party to learn about the other side’s evidence for their claim, defence, or counterclaim.
Service of the Statement of Defence starts a timer. The plaintiff has three months from receiving the Statement of Defence to file an Affidavit of Records. The Affidavit of Records is a document in which each party identifies each document in their possession that is relevant to the action.
Once the plaintiff serves their Affidavit of Records on the defendant, the defendant has two months in which to provide their own Affidavit of Records.
You will be happy, when the deadline for filing your Affidavit of Records is approaching, that you had started getting all your documents together early on. The deadlines for filing the Affidavit of Records are strict, and if a party does not abide by the deadline, the other party may be entitled to an order for costs.
Once the Affidavits of Records have been exchanged, each party is entitled to question the other party. In the case of an individual litigant, the individual is subject to being questioned. For a corporate litigant, the corporation must designate a corporate representative to be questioned.
Questioning is a formal process. A court reporter is booked to attend and create a transcript of the questioning. Questioning is usually scheduled by agreement, however, if one party is not being cooperative, it is also possible to serve an Appointment for Questioning to require the other party to submit to questioning.
The scope of questioning is very broad. It is an opportunity for each party to ask the other any question that might help to shed light on any of the issues in the action. Some questions might not be within the ability of the party to answer immediately or might involve additional documents that have not yet been provided. In this case the questioning party may as for undertakings. Undertakings are promises to look for the answers, or to look for and provide additional document, after the Questioning. Questioning is commonly concluded subject to undertakings, and a brief follow up questioning scheduled after the answers to undertakings are provided.
Processes in the Court of Justice as not quite as rigid or formal, serving the same purpose of having the case evidence and argument being better understood by the parties before trial.
Participation in a form of dispute resolution is mandatory before an action can proceed to trial. This may involve a Judicial Dispute Resolution meeting, which is scheduled through the Court, or mediation with a private mediator.
Settlement offers can be exchanged at any stage of the litigation process, whether before the Statement of Claim is filed, or even up to the eve of trial. Settlement offer can be made informally, or can be made formally. Usually, each party will serve an offer in the form of a Formal Offer to Settle on the other party. A Formal Offer to Settle is made is a specific form, and is an important step in the civil litigation, as there are consequences to not considering a reasonable settlement offer that is made as a Formal Offer to Settle. A party that makes a Formal Offer to Settle and then ultimately does better that what had been offered will be entitled to an enhanced award of costs for the action.
While the skilled and experienced Civil Litigation Lawyers at Main Street Law LLP will do their best to achieve an optimal settlement of your Civil Litigation case, the final step in litigation is the hearing of the action. This might take the form of a trial following discoveries and dispute resolution, an application for summary judgement after the close of the pleadings, or other hybrid processes.
In a summary judgement application, the Court is asked to make decisions on the action based on written affidavit evidence submitted by the plaintiff and defendant. In a straightforward action a summary judgement application might be brought early on, even before the exchange of documents. Either party might decide to make an application for summary judgement after reviewing the other party’s documents, or after questioning.
Summary judgement might not be appropriate where the documentary evidence is lacking, and much of the evidence is going to be testimony from witnesses, and where the witness evidence is contradictory. In such situations a trial will probably be the more appropriate process. A trial involves calling witnesses to give evidence. Witnesses are called to testify in Court and under oath. Each witness is questioned by the party calling them, and then cross examined by the other part. The judge hears the testimony and will make findings of credibility for each witness.
Whichever process is used, the result will be a judgement being issued by the Court. This will usually involve an award for damages, and may include an order that a party do, or refrain from doing, some act. There is also typically an award of costs for the action.
Please contact any of our Civil Litigation Lawyers, Estate Administration Litigation Lawyers, Family Law Lawyers, or our Business Law Lawyers in any of our Spruce Grove, Edmonton, or Drayton Valley offices today to schedule your initial consultation.
Please be advised that this article was prepared by Patrick Hopf, Civil Litigation Law and Business Law Lawyer with Main Street Law LLP in Spruce Grove in June of 2023. This article is intended as a general overview and general information on a legal subject as the law exists at the time of writing and is not intended to be legal advice. Often the specific facts of your legal matter may change or impact the applicability of this information. For legal advice related specifically to the facts of your concern, please consult with any of the Civil Litigation Law or Business Law Lawyers at Main Street Law LLP at any of our Spruce Grove, Edmonton, or Drayton Valley locations.