Welcome to the Frequently Asked Questions (FAQ's) portion of our website. Please select the link below for more information on that particular subject.
- What is the difference between civil and criminal court?
- Is the civil court system only used for lawsuits to recover money?
- Is civil court expensive?
- If I win, will the other party pay all my expenses?
- Does it take a long time to bring a case to court?
- What are the Rules of Court?
- What does plaintiff mean?
- Who is the defendant?
- What are pleadings?
- What is the purpose of the pleadings?
- What happens if the defendant does not want to be involved in a legal action and ignores the Statement of Claim?
- What happens if the defendant forgets to serve a Defense, or did not get a lawyer in time?
- What happens if the pleadings leave out some important facts?
- What else must the parties do before they can go into court?
- What is an expert report?
- Why should you have to disclose parts of your case to the other side?
- Can my opponent's lawyer question me before I go to court?
- Why do they record the Examinations for Discovery?
- Is there anything else that might happen before there is a trial?
- Once the parties have said they are ready for trial, how long do they have to wait?
- Once you start a legal action, do you have to keep pursuing it through to trial?
- If the parties settle the legal action before trial, do they do this by talking directly to each other?
- Does the legal system have an alternative process so I do not have to wait so long?
- What happens when you actually get to trial?
- Does the plaintiff give evidence?
- Do you have to swear an oath before you can talk in court?
- What happens if a witness takes an oath to tell the truth and then lies when giving evidence?
- Does the lawyer for the defendant also question the plaintiff's witnesses?
- What happens when the lawyer for the plaintiff has called all of their witnesses?
- If the parties have reports from experts such as engineers or doctors, will the experts come to court?
- When witnesses are giving evidence to the court, can they talk about anything?
- What would be an example of one rule of evidence?
- If the rules of evidence can exclude important information from the case, why do we use them?
- What happens in the trial when both plaintiff and defendant have presented their case to the judge?
- In summary what are the main features of the process when you start a legal action?
What is the difference between civil and criminal court?
There are two court systems: civil and criminal. For lawsuits in the civil court system, judges do not usually use the terms "guilty" and "innocent". When a person accused of a crime appears before a criminal court, the court will find him/her either guilty or not guilty of the crime. When a person is suing another to recover money, the lawsuit takes place in the civil courts. The judge in the civil court will decide whether the person being sued must pay the money. This is an issue of liability. The judge decides if the person is liable to pay the money.
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Is the civil court system only used for lawsuits to recover money?
No. Other lawsuits are dealt with in the civil court system. These might include: divorce adoption custody lawsuits to request that a person be ordered to take certain action e.g. make a decision lawsuits to request that a person be ordered to stop taking certain action.
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Is civil court expensive?
Although people can go to court without a lawyer, many do hire one to handle their case. So, one of the costs would be the lawyer's fees. It also costs money to start court proceedings. The court sets certain fees the parties must pay. Finally, witnesses may have to come to court. These witnesses are there to give expert evidence about the case. They are called "expert witnesses". Witnesses can add to the cost of a case.
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If I win, will the other party pay all my expenses?
No, if you win the case, you might get a portion of your expenses back, or you may receive none. However, if you lose the case you might even have to pay your opponent's costs. The outcome is never certain. The process will involve you having to spend money before a case goes to court. Even if the judge orders your opponent to pay most of your costs, there is no guarantee that you will get the money. Your opponent may not have enough money to pay you.
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Does it take a long time to bring a case to court?
Before a case goes into court, follow the legal process set out in the Rules of Court. Every province and territory has its own Rules of Court. The rules are all similar but you should check for differences in your province.
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What are the Rules of Court?
The Rules of Court govern the way in which legal actions are conducted. They set out each step of the process. For example, a person who claims or sues another person must file a document called a Statement of Claim with the court and give a copy to the person they are suing. The Statement of Claim sets out the details of the case against the other party. The other party can then file a Defense to the claim. People must follow strict time limits when filing these documents with the court. The other party must also receive the documents. The Rules of Court set out these rules and many others in detail.
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What does plaintiff mean?
The "plaintiff" is the person who starts the legal action. The plaintiff puts together and serves the Statement of Claim.
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Who is the defendant?
The defendant is the person against whom the plaintiff begins the legal action. The defendant must answer the Statement of Claim by compiling and serving a Defense.
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What are pleadings?
"Pleadings" is the collective term for the documents that both sides give to each other to state the claim and to defend it. The pleadings may simply be the Statement of Claim and the Defense, or they can be longer. When one side gives the other a copy of their own pleadings, we say that they are serving the pleadings. The Rules of Court set out the way to serve the pleadings. When the defendant gets a Statement of Claim, he/she may feel that he also has a claim against the plaintiff. He/she can then serve a Defense and a Counter-Claim on the plaintiff. The plaintiff can then serve a Reply to the Defense and a Defense to the Counter-Claim. The pleadings close when the parties finish stating the issues between them in this way.
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What is the purpose of the pleadings?
The pleadings allow each side to know what the other side is claiming and why they are claiming these facts. For example, if the case is about a road accident, the Statement of Claim will include the following information:
- the names of the plaintiff and defendant where and how the accident happened.
- why the plaintiff blames the defendant for the accident.
- details of the injuries the plaintiff suffered.
- details of the expenses the plaintiff incurred.
- details of the money the plaintiff claims for the injuries suffered.
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What happens if the defendant does not want to be involved in a legal action and ignores the Statement of Claim?
The defendant really has no choice once he receives a Statement of Claim. He must serve a Defense within the time limits the Rules of Court set out. If he does not, the plaintiff can ask the court to enter judgment against the defendant. This means that the Plaintiff has, in a sense, won the case.
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What happens if the pleadings leave out some important facts?
The pleadings can be changed during the legal action if the other party agrees. If the other side does not agree, the court may still give permission to change the pleadings. When the parties reach a trial, they are restricted to the details in the pleadings when they argue their case. The judge may allow them to change an item that is not very important or if it would cause an injustice not to allow the amendment. Normally a judge will not allow a detailed change at such a late stage if, for example it changed the whole nature of the case. It would not be fair to the other side.
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What else must the parties do before they can go into court?
Further steps are necessary before the case goes into court. Both sides must disclose certain parts of their case to the other side. For example, they would show the contents of any expert report that they will rely upon to prove their case.
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What is an expert report?
Many times people who are involved in a legal action will ask for the opinion of an expert in that field and ask him to write his opinion in a report. That is because they want to provide the best possible information to support their position on the conflict to the judge. For example, the expert may be a doctor, an engineer, a handwriting specialist, or an architect. Both sides might get their own opinions. The expert writes the opinion in a report. Sometimes, the parties will exchange their reports and find that they can agree on what the expert evidence is. If they do not agree and a party wants to rely on the expert's opinion, the expert must come to court. The expert will be called as a witness. If both sides call an expert, the judge will have to decide which opinion he prefers.
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Why should you have to disclose parts of your case to the other side? Wouldn't that give away any advantage you might have?
There are several reasons for the parties to disclose details of their expert evidence before a trial. The main reason is to encourage agreement and perhaps settlement of the case. When parties know the details, they can see how their opponent intends to argue the case. This can cut down time at trial. The parties might come to an agreement on some or all parts of the expert evidence. Any agreement might result in the expert spending less time in court, and that reduces the expense. Disclosure may make the issue clearer, so that the parties might agree and settle the case. Also, disclosure of expert evidence may show one party that his own case is not as strong as he thought. For that reason he may settle the case. Also, the disclosure process helps avoid what is called "trail by ambush". This term describes what can happen when parties surprise each other with evidence in court. Disclosure makes the whole process more open and fair.
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Can my opponent's lawyer question me before I go to court?
Yes, we call this part of the legal process "Examinations for Discovery." It means that each party may question the other about the case. If a party has a lawyer, the lawyer normally conducts the questioning. This process allows the parties to clarify the issues between them and assess how strong their own case might be. The Examinations for Discovery are recorded and later set out in a transcript.
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Why do they record the Examinations for Discovery?
An accurate transcript allows the parties to look at the answers and to use them in planning their case. Also, the transcript can be used at the trial if the other party gives different information than was given at the Examinations for Discovery. The transcript will show that a party is now changing their story.
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Is there anything else that might happen before there is a trial?
When the parties have completed all steps as set out in the Rules of Court, they let the court know that they are ready for trial. Before the court sets a trial date, they may have to attend a pre-trial meeting with a judge. The purpose of the meeting is to clarify the issues between the parties and to see if they can come to an agreement. A trial can be very expensive and time-consuming. Even at this late stage, it would still save time and money if the parties come to an agreement.
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Once the parties have said they are ready for trial, how long do they have to wait?
It really depends on how long the waiting lists are in that area. It is not uncommon to wait more than a year. It could even be longer. Going through the legal process takes time. Your lawyer also needs time to prepare your case before the beginning of the legal process. Each case will be different. Generally, a lawyer needs more time to prepare a complicated case than one with simple facts.
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Once you start a legal action, do you have to keep pursuing it through to trial?
No. The parties to the legal action can agree to settle the action at any time. Most legal actions begun in the civil courts do settle before they reach trial. Even if the parties settle the legal action by agreement, there may still be an issue about costs. Either they'll pay their own costs or they'll come to some agreement about how to pay the costs, or they will ask the court to determine the cost.
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If the parties settle the legal action before trial, do they do this by talking directly to each other?
The parties might be able to agree to settle the case after a discussion between the two of them. However, it is more likely that each side will have a lawyer. Usually the discussion will take place between the two lawyers. The lawyers take instructions from, and report back to, their respective clients.
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Does the legal system have an alternative process so I do not have to wait so long?
Within the civil court system, a branch of the Provincial Court deals with small claims. There is a limit to the amount of money, which can be claimed in small claims court. The process in small claims court is not as lengthy as in the Court of Queens Bench, which generally hears cases worth more money. For example, there are no Examinations for Discovery. However even in small claims court, as much as a year could pass from the time of the incident until a trial begin.
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What happens when you actually get to trial?
The trial itself is very formal Small claims court is less formal but the proceedings generally follow the same format as in the Court of Queens Bench. The trial opens with the plaintiff's case. Before the trial, the judge reads only the pleadings. The parties therefore must present their case and argue their position persuasively. The lawyer for the plaintiff explains his/her case and they may call witnesses to support his/her position.
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Does the plaintiff give evidence?
Both the plaintiff and defendant can give evidence in the case. Both sides will decide how to present their cases and who to call as witnesses.
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Do you have to swear an oath before you can talk in court?
A witness who is called to make a statement to the court has a choice. You have to either swear an oath, or make an affirmation that you will tell the truth. An oath is a religious vow that you will tell the truth. An affirmation is simply a promise to tell the truth. Any statement that is made in court after an oath or affirmation has been sworn is called a sworn statement. When a person is called as a witness to give a sworn statement we say that they are giving evidence.
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What happens if a witness takes an oath to tell the truth and then lies when giving evidence?
If someone discovers that a witness deliberately made a sworn statement that was untrue, the witness may be charged with the criminal offence of perjury. It is understood that such a discovery will, in almost all cases, have a negative impact on the case before the court.
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Does the lawyer for the defendant also question the plaintiff's witnesses?
Yes. When the lawyer for the plaintiff calls witnesses and questions them we call that the examination in chief. The lawyer for the defendant then can cross-examine the witness. In cross-examination, the defense lawyer will try to point out inconsistencies in the witness's account and try to discredit the evidence in general. The lawyer for the plaintiff then can question the same witness again. The lawyer will try to clarify any issues that appear unclear after the cross-examination.
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What happens when the lawyer for the plaintiff has called all of their witnesses?
When the lawyer for the plaintiff has finished presenting their case, the lawyer for the defendant will present the defense case. The defense lawyer presents the case using the same procedure as the plaintiff's lawyer did. The defense lawyer examines the witnesses as they are called. After each witness gives evidence, the lawyer for the plaintiff will cross-examine the witness.
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If the parties have reports from experts such as engineers or doctors, will the experts come to court?
If a party wants to rely on the expert's opinion, the expert must give evidence in court according to the report. If the other side agrees to the report's contents before trial, the parties can put the report before the judge as an agreed statement. When the parties agree to a report, the expert will not necessarily have to come to court.
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When witnesses are giving evidence to the court, can they talk about anything?
No. There are rules that apply to the giving of evidence in court. The rules are extremely complex and technical. They are applied very strictly in criminal cases where the freedom of an individual may be at stake. Civil courts do not apply the rules of evidence quite so strictly. However, these rules are still significant in deciding what people can and cannot say in court.
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What would be an example of one rule of evidence?
Perhaps the best-known rule is the one about hearsay evidence. Very generally, hearsay is a statement made by someone outside the court, i.e., other then the person testifying. The rule against hearsay evidence becomes complicated because there are exceptions to the rule, and even exceptions to the exceptions! The rules of evidence can be very technical. This means that sometimes information that might be important is excluded from the case.
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If the rules of evidence can exclude important information from the case, why do we use them?
The rules of evidence have evolved over many hundreds of years. The purpose of the rules is to provide trials that are fair and unbiased. Information that the court hears must have a certain standard of reliability. This is particularly true in a criminal trial. There the consequences can mean someone spends time in prison. For example, with hearsay evidence, suppose a court hears what someone else has said outside of the courtroom to a witness. There would be no opportunity for the court to see and judge the person who made that statement. The person who made the out-of-court statement was not making it under oath or affirmation. There is no opportunity to cross-examine the person who made the statement. Finally, there is no guarantee that the statement reported to the court is actually what a person said. It might be completely inaccurate. So although the statement might be very important to the case it is excluded because it is not reliable.
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What happens in the trial when both plaintiff and defendant have presented their case to the judge?
After the plaintiff and the defendant have given all the evidence, they each present a closing argument to the judge. Sometimes the judge will give a decision immediately; sometimes he will deliver the decision later.
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In summary what are the main features of the process when you start a legal action?
In court proceedings, the Rules of Court set out the steps in a legal action. Largely, the parties are bound by these pre-existing procedures. Also, when one party (the plaintiff) decides to start a legal action, the other side (the defendant) must respond. Otherwise, the court may give a judgment against him/her. The Rules require the parties to disclose a lot of information to each other before a trial. This is to try to avoid surprises at trial and to encourage settlement. However, a legal action is still conducted in a tactical and adversarial way. Usually the parties only talk through their lawyers who have a duty to get the best possible result for their clients, as well as a duty to the court to conduct themselves in an ethical manner. At the trial, a judge listens as both sides present their case in a very formal manner. The judge then makes a decision based on the facts he heard. The result of a trial is very often a win-lose situation where one party wins and one party loses.
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This information is a brief summary for information purposes only and is applicable only in the Province of Ontario. It is not intended to be legal advice. Full and complete legal advice can only be given by a lawyer who has detailed information about your individual circumstances