 This is Wayne LeCiao. Welcome to dispute resolution part a In this part we will look at the courts and civil lawsuits Let's look at the life of a civil lawsuit from beginning to end a civil lawsuit Involves one private person or business suing another private person or business That's in contrast to a criminal lawsuit Where the government which in Canada we call the crown the crown accuses a person of having committed a criminal offense So with a civil lawsuit we always start with some kind of dispute between You know two or more two or more parties and that dispute can involve what we call a tort Which is some kind of wrongful act that has caused Injury or loss to another person. We'll talk more about torts in another module or it could involve a breach of Contract and we'll talk about contracts in another module as well So arising from that dispute Could be a an actual lawsuit. So the the first stage of a lawsuit is called pleadings So before actually initiating a lawsuit we have to determine whether or not the applicable Limitation period has expired limitation period is is a deadline by which a lawsuit has to be initiated It cannot be initiated once that limitation period has expired the limitation period in Ontario is generally two years But it's very important to check out What is the specific limitation period limitation period that applies to any particular situations? Because there are exceptions to that two-year rule where the limitation period could be shorter or it could be longer than two years So as long as we're with we are within the limitation period The plaintiff which is the party who is initiating who is who is doing the suing Would serve and file a document called a statement of claim Statement of claim would contain the plaintiff's version of the facts and also state what the plaintiff wants out of the lawsuit Usually the plaintiff wants the other party the defendant to pay money to the plaintiff After the statement of claim has been served and filed The the defendant which is the other party though the person that the plaintiff is suing Would having would look at statement claim and decide whether or not to to fight the lawsuit if they do want to fight the lawsuit They would prepare a document called a statement of defense which would set out to the defendants version of the case if the defendant does not File any state of defense the plaintiff basically wins by default and can obtain what's called a default judgment from from the court Other other documents that other pleadings that that that could arise at this stage Could be a counterclaim. So that's where the defendant is Claiming an amount from the plaintiff. So that they would use they would put that into a document called a counterclaim And another document another pleading could be what's called a reply So once once the plaintiff has received a statement defense from the defendant if the plaintiff wants to reply To the version of the facts that the defendant has set out in the statement defense Then the plaintiff can put its response into a reply The next stage involves a number of different pretrial activities So the purposes of these pretrial activities is to narrow down the issues So that by the time we we reach trial we can we know exactly what is in dispute But a larger more important important purpose of these pretrial activities is to encourage The settlement of this of this lawsuit to avoid having to go forward with a very expensive trial expensive in the sense that It would incur very substantial legal fees So these pretrial activities include firstly an examination for discovery What that involves is that each party and their lawyers are allowed to ask questions of the other party to find out the details of their case including what evidence they have and This also involves each party having to disclose all Documents that they have in their possession that is relevant to the case So by going through this discovery process We are able to to to determine what are the strengths and weaknesses of each party's case and therefore Encourage a settlement between the two parties Another pretrial activity could be mediation mediation is where the two parties Sit down with a neutral a neutral person which we call a mediator The mediator tries to find common ground between the two parties in order to try to put together a Settlement of the case Mediation is a Mandatory step for civil cases that are initiated in Toronto Ottawa and Windsor and The final step before actually going to a trial is something called a pretrial conference a pretrial conference Involves the two parties and their lawyers meeting with a judge So it's not the judge that will hear a trial, but it's a real judge of That court The judge will be appraised of you know what what was the of the evidence that was obtained through through discovery and the judge will provide his or her opinion about the strengths of weaknesses of each party's case and Could could also on that basis push the parties Towards coming to a settlement in order to avoid trial Now if after all that pretrial activity, there is still no settlement of the case and by the way you know more than 95% of cases are settled before reaching trial now if we are unable to to settle the case and we have to go to trial a trial Can involve and in civil cases. It's usually a judge alone the judge hears the case and makes the decision With with more serious criminal cases There's usually a choice between either a judge alone or a judge with a jury So with a judge with a jury the the matter of guilt or or innocence is decided by by the jury Now in any trial there is there is evidence that is presented to the court evidence is usually Presented by way of witnesses so it could be what we call ordinary witnesses So these are people who have firsthand knowledge of what happened in the case and it can also involve expert Witnesses who don't have first-hand knowledge, but expert witnesses such as you know doctors engineers forensic Experts they they've looked at the evidence in this case and they are testifying about their Professional opinion arising from that evidence When witnesses are called the lawyer that calls that witness Ask questions of that witness that's called an examination in chief When that lawyer is done asking questions the lawyer for the for the other side for the for the opposing party Also has a chance to ask questions of that witness. That's called cross-examination in Presenting evidence at trial. There are Complex rules of evidence that that apply to determine whether any particular piece of evidence is admissible or inadmissible The the most famous rule of evidence is is the hearsay rule hearsay rule Essentially says that a witness cannot testify about something that they heard someone else say But witness can only testify about what what they you know what they saw what they Experienced as opposed to just repeating what someone else has said to them. That's the hearsay rule Now in deciding a case The court will apply a standard of proof So in a civil case the plaintiff Has to prove its case like its version of the facts on a balance of probabilities. So what that means is that? Based on the evidence presented the plaintiff's version is More than 50% likely to be the the true version versus the defendant's version With a criminal case the standard of proof is much higher than just something more than 50% The crown has to prove guilt beyond a reasonable doubt After we have a decision at trial The next next stage is an appeal So this is where the losing party at trial Will appeal that decision or try at least try to appeal that decision to a higher court So basically saying the losing party is saying to the appeal court That there was an error made in the trial decision No, specifically an error of of how that court applied the law or interpreted the law an error of law in other words an appeal court will overturn errors of law, but will not appeal errors of fact In terms of the what the different appeal courts a trial decision of the Ontario superior court, which is the highest Trial court for civil cases Those decisions are appealed to the Ontario Court of Appeal Ontario Court of Appeal is the highest court in Ontario and Decisions of the Ontario Court of Appeal are appealed to the Supreme Court of Canada Which is the highest court in Canada now once Appeals are are exhausted or even if an appeal doesn't happen The the last the last step is called enforcement So if if the defendant has has lost and the court has ordered the defendant to pay money to the plaintiff That defendant is now called a judgment debtor And if that judgment debtor does not voluntary pay the amount that's been ordered The plaintiff has to take steps to enforce that judgment So that could involve the plaintiff Garnishing the judgment debtor's income, which means if the judgment debtor has a job from which he or she is receiving salary Every time there's a paycheck the employer will be required to deduct a certain portion of that Paycheck and pay it over to the court and the court will give it to the plaintiff Another another way a judgment can be enforced is to have the court seize and sell The judgment debtor's assets in order to pay down the the debt that's owing from the lawsuit One overall point to keep in mind is that most cases never make it to trial as I mentioned earlier 95% or more of cases are settled before ever making the trial stage and a thing to keep in mind is that Litigation is uncertain in the sense that you you can never be hundred percent sure whether you will win or lose Second is that the process of a civil lawsuit from beginning to end is is Lengthy, it's not it's not like on TV where a case is initiated at the beginning of a one-hour show and It gets to trial before the show is over a a lawsuit can can go over a period of Years two three four or five or more years sometimes and You know because it's lengthy. It's it's costly. You know lawyers are expensive So legal fees the longer case is dragged up legal fees add up Let's talk about class actions and Let's look at a real case. This case involves a gas utility in Ontario called consumers gas so what was happening was that consumers gas was charging late payment penalties to its customers and And it was discovered that those penalties Were charged at a rate that were that were illegal or criminal under under the criminal Criminal code of Canada. So let's say this particular customer was charged an illegal late penalty of $25 So that customer you know has a right to sue consumers gas to recoup that $25 But the problem is that you know that amounts that $25 amount for that one customer is so small It's not worth the hassle To initiate a lawsuit and it's just it's just too costly for the customer to To start a lawsuit and you know hire a lawyer to to us to carry on that that lawsuit So in most instances the affected customer will just say you know to hell with it You know, it's not worth it and and do nothing about that illegal illegal $25 payment Now with the ability to start a class action We can instead of focusing on just one customer. We can look at all of the affected customers So in this case there were 500,000 affected customers So those those customers so that that whole group of customers were charged illegal late penalties of $150 million in total So those customers as a group Through a class action can sue consumers gas for the whole 150 million dollars By being able to use a class action to recover the the late payment penalties the the customers have a a Practical and useful way of recovering the penalties that they have paid now a thing to keep in mind too is that the the lawyers are presenting the customers So those are the plaintiffs lawyers, you know, they're they're willing to assist the customers in pursuing this lawsuit now and They're very happy about that because once there's a judgment or a settlement of the case plaintiffs lawyers in class actions are usually paid what's called a contingency fee So contingency fee is a fee that is calculated as a percentage of the actual amount That's been recovered in the lawsuit. So that that rate is usually 25 to 40 percent and With a contingency fee arrangement if no money is recovered the plaintiffs lawyers receive nothing So they only receive something if there is an amount that's been recovered by way of a judgment or settlement So if we if we think about About this case, let's assume. I don't know what the rate was that was applied in this case in terms of the contingency fee If we assume that plaintiffs lawyers are paid Let's say the lowest 25% So that would amount to about you know, 30 38 million dollars that are paid to to the lawyers out of the total of 150 million dollars To be able to proceed as a class action The court has to certify a case as a class action There are a number of criteria that have to be met before a court will provide that certification The first criteria criteria is that there has to be common issues Among all class members with the consumers gas case it all of the affected customers had the same issue regarding the illegal late payment penalties and There has to be a representative plaintiff. So this is Though the one person who represents one plaintiff who represents the whole the whole group the whole class And that representative plaintiff has to demonstrate a workable plan for fairly representing all class members interests And the third criteria is that there has to be a plan to notify all potential members of The class if there is a mailing list That can be used to contact all of the affected members What another method of notification is putting ads and in newspapers or or posting something posting something online and the last criteria is is that it has to be shown that Pursuing the case via a class action is Preferable is the preferable procedure over traditional litigation where where one effect party sues The company so having a whole bunch of different lawsuits. So the usual argument there is it is that it's much more efficient To have one class action instead of thousands of different and separate lawsuits against the company Let's now look at the court structure for civil lawsuits in Ontario a civil lawsuit would start at a trial court The two trial courts are the Ontario Superior Court, which hears claims of over $35,000 and claims under that amount would would be dealt with by the small claims court the small claim claims court is specifically designed to make it easier and quicker and and cheaper For especially for non lawyers to to bring to bring claims The the next level of court up are appeal courts The two appeal courts in Ontario are the Ontario Court of Appeal and the Ontario Divisional Court With with respect to small claims Decisions decisions of the small claims court at trial can be appealed to the Ontario Divisional Court and Then the highest appeal court in Ontario is the Ontario Court of Appeal It hears appeals from the Ontario Superior Court and also the Ontario Divisional Court and Decisions of the Ontario Court of Appeal May be appealed to the highest court in Canada, which is the Supreme Court of Canada The significance of having what we have called higher and lower courts is a legal doctrine called the doctrine of precedent So under that doctrine lower courts must follow the legal principles in decisions of higher courts So what arises from that principle is that you know all courts in Canada must follow the decisions of the Supreme Court of Canada Which is the highest court in Canada? If we look at just Ontario the lower courts in Ontario would be the Superior Court Divisional Court and small claims court All of those lower courts have to follow the decisions of the Ontario Court of Appeal Which is the highest court in Ontario?