Anatomy of a Lawsuit

By Larry Munn

(With special thanks to Areet Kaila, for her update.)

This paper provides a brief outline of the litigation process in British Columbia. The focus is on civil litigation, which basically means all litigation other than criminal proceedings. The paper is intended to provide non-lawyers involved in a lawsuit with an outline of how the process unfolds, a roadmap if you will.

The Courts

Civil proceedings in British Columbia may be commenced in the Small Claims Court (also known as the Provincial Court – Small Claims Division), the Supreme Court of British Columbia or the Federal Court Trial Division.

The Small Claims Court deals with matters involving $25,000 or less. It has its own special set of rules designed to make the court accessible to the average person.

Actions dealing with matters such as patents and trade-marks and admiralty may be commenced in the Federal Court, Trial Division. This Court is administered by the federal government and the matters which it will hear are limited to certain matters within the power of the federal government.

This paper will focus on the Supreme Court. The Supreme Court is a court of general jurisdiction, which means there is no monetary limit and the Court may determine all questions of law relevant to the matters before it. The Supreme Court may hear most any matter brought before it, except those matters assigned by legislation to specialized tribunals, such as the Workers' Compensation Board or the Tax Court.

Commencing a Lawsuit – the Pleadings

Proceedings in the British Columbia Supreme Court may be commenced by a Petition or by a Notice of Civil Claim.

Generally, proceedings commenced by way of a Petition are those that do not involve contentious or complex facts. Such proceedings include questions regarding estates, trusts, interests in property, and the interpretation of statutes or documents, and matters that legislation requires to proceed by way of a Petition. Many of the procedures discussed below, such as discovery of documents, oral examinations for discovery and pre-trial conferences are not available when a proceeding is commenced by way of a Petition. Oral testimony is seldom required and instead, sworn affidavit evidence is used. Thus, matters commenced by way of Petition can often be heard in a relatively short time. Petitions may also involve complex and time-consuming issues. An early hearing date is not always available from the Court.

Most proceedings in the Supreme Court are commenced using a Notice of Civil Claim. These proceedings are defined in the Supreme Court Rules as "actions". The Notice of Civil Claim is the formal document that commences an action. It sets out in detail the nature of the action being brought, the material facts that support the claim, the relief sought, and the legal basis for seeking the relief.

The party commencing an action is known as the Plaintiff. The party responding to or defending an action is known as the Defendant.

The Notice of Civil Claim is first filed with the Registry of the Supreme Court. It is then served on the Defendant. Individuals are served by handing a document to them personally or otherwise ensuring it comes into their possession, although a Court order allowing for substituted service may be obtained. Special statutory provisions govern service on governments and companies. Companies incorporated in British Columbia or registered to do business in British Columbia can usually be served by mailing a copy of the Notice of Civil Claim by registered mail to the company's registered office in British Columbia.

A Notice of Civil Claim must be served within twelve months of the date it is filed. The defendant must file a Response to Civil Claim within 21 days following receipt of the Notice of Civil Claim. A Response to Civil Claim is the Defendant's detailed response to the allegations of the Plaintiff as set out in the Notice of Civil Claim.

The Defendant may issue a Counterclaim against the Plaintiff in respect of a claim the Defendant may have against the Plaintiff. This allows for the possibility of the matters being heard at the same time. A Counterclaim is usually set out in the same document as the Response to Civil Claim.

The Defendant may also issue Third Party proceedings. Third Party proceedings generally involve persons that the Defendant alleges may also be liable for the Plaintiff's damages.

The Rules of Court also provide for "Fast Track Litigation" if the claim is not more than $100,000, the trial can be completed within three days, and the parties consent or the court orders it. Family law proceedings cannot be fast tracked. Special rules govern the delivery of documents, the timing and duration of oral discoveries, and the trial agenda. A Case Planning Conference is mandatory for all fast track litigation. At a Case Planning Conference, the court can make various orders including orders that impose a timetable for the steps that need to be taken, restrict the number of experts, or set limits on examinations for discovery. The possibility of proceeding to fast track litigation and the consequences of doing so should be discussed with counsel.

Proceedings, whether commenced by way of a Petition or as an action, must also be commenced within the applicable limitation period. Limitation periods govern the time within which a proceeding must be commenced. Otherwise the proceeding is a nullity. The limitation period will depend on the type of action being commenced. For example, a personal injury suit must usually be brought within two years of the date of the injury, whereas a question regarding breach of contract must usually be brought within 6 years of the breach. There are numerous statutes governing limitation periods and numerous exceptions to the rules. Nevertheless, limitation periods are a key consideration when a court proceeding is commenced.

The Discovery Process

Once the pleadings are filed and served the next step is for all parties to fully examine the nature of the claim being brought and the nature of the defence being advanced. This is known as the discovery process and involves the disclosure of all documents having to do with the matters at issue, as well as an oral examination of the parties. The discovery process may also involve written questions, known as Interrogatories and, where appropriate, examination of property or a medical examination.

(a) Discovery of Documents

Discovery of documents is one of the most crucial steps in the litigation process. There is much useful information to be learned from documents, particularly in commercial cases. Each party must disclose to the other party all documents that they intend to refer to at trial. The parties must also produce all documents that are or have been in their possession or control and that could be used (by either party) to prove or disprove a material fact. Each party's lawyer has an ethical obligation to ensure that the production is complete. Whether or not a document should be produced is a legal question. It is therefore important for a party to provide access to all documentation and let his or her lawyer determine whether the document should be disclosed. The scope of disclosure that is required is broad. The courts have stated many times that all documents, whether they help or hurt a party's case, must be produced.

It is also worth noting that the term "document" has been broadly defined in the Rules and includes photographs, film and information stored on a computer's hard drive.

Documents and other information subject to legal privilege need not be provided to the adverse party. Again, the decision must be made by a party's lawyer. Privilege covers a relatively narrow field and generally involves advice received from counsel and information created primarily for the purpose of the litigation.

(b) Oral Discovery

Each party to an action is entitled to conduct an oral discovery of every other party. This is an opportunity to learn from the other party specific information regarding the other party's case. It is also an opportunity to obtain admissions of fact that can be used at trial and an opportunity to assess the demeanor of other parties. Proper preparation is critical. The lawyer conducting an oral examination must spend time reviewing the documents and meeting with his or her client in order to properly prepare questions. A party being examined must also be properly briefed by his or her lawyer regarding how to handle the questions the other party will pose.

Oral discoveries are conducted in the presence of a Court Reporter who will provide a transcript of everything said "on the record". The questioning is in the form of cross-examination under oath or affirmation. The rules of evidence are much less strict than at trial. For example, hearsay answers may be provided. A party's lawyer is entitled to object to questions being asked of his or her client. For instance, questions seeking information that is irrelevant or privileged can be objected to. However, objections should be the exception and not the rule.

It is also possible to conduct a discovery of a non-party if that person has material evidence relating to the lawsuit and is not willing to cooperate with the party seeking the information. A court order is required.

(c) Interrogatories

Interrogatories are written questions relating to a matter at issue in the lawsuit. A party may serve interrogatories on another party if the party to be examined consents, or with the permission of the Court. The party on whom interrogatories are served has 21 days to respond. Interrogatories are not a substitute for oral discovery and the scope of the questions that can be asked is much narrower. However, interrogatories are often useful in complex cases for obtaining some of the basic background information.

Applications

Prior to the trial of an action, it may be necessary to seek the assistance or advice of the court. This is done by bringing an application. An application will be necessary when another party fails or refuses to comply with the Rules of Court or should a dispute arise as among the parties regarding the scope or interpretation of the Rules. For example, an application may be necessary if a party fails to provide a proper list of documents or fails to attend at an examination for discovery. Likewise, if a party refuses to answer questions posed by way of interrogatories or on an oral examination for discovery, or a party requires an examination of a non-party, an application will be necessary.

Applications are brought by filing with the court a Notice of Application, a document that outlines the order being sought, the factual basis for the application, and the legal arguments on which the application is based. The Applicant must also file, along with the Notice of Application, an original copy of every Affidavit or other document that they intend to rely on at the hearing. The Affidavit sets out the facts upon which the application is based, and must be sworn or affirmed by a person with knowledge of the facts.

Two types of application deserve special mention: the summary judgment application and the summary trial application. A summary judgment application under Rule 9-6 is appropriate when the pleadings reveal no triable issue. For instance, where a debt is due and the amount is not in issue a summary judgment may be appropriate. Summary judgments are the exception and not the rule.

Summary trials under Rule 9-7 are becoming more common. Summary trials, as the title implies, are actually trials, but in a shortened form. The summary trial may be in respect of a specific issue or seek judgment generally. The evidence is presented in affidavit form, although the court may ask to have a witness cross-examined in open court. Not all litigation is appropriate for a summary trial. Where there are complex factual issues or questions regarding the credibility of witnesses, a full trial will be necessary.

Once the materials are filed, there will be an oral hearing before a master or judge of the court. The length of time required for the hearing will, of course, depend upon the complexity of the application.

Experts

Most litigation will require the assistance of an expert. For example, in a personal injury case it will be necessary to have the Plaintiff's doctors comment on the Plaintiff's condition. In a business litigation case accountants or other professionals will provide their assessment regarding such things as the damages suffered. The expert will usually provide a report and attend at trial to give oral evidence. The expert may also assist counsel in understanding the technical aspects of the litigation. For instance, an expert can provide assistance in crafting questions to be asked on discovery and at trial.

Information provided to an expert and his or her report are privileged until such time as the report is filed in evidence. In British Columbia an expert's report must be provided to the other side 84 days before the expert takes the stand at trial.

Pre-Trial Procedures

(a) Setting a Trial Date

Trial dates may be obtained from the court after the Notice of Civil Claim and Response to Civil Claim are filed. Trials often have to be booked a year or even two years ahead, depending on the length of the trial and the courthouse in which it is being held.

(b) Juries

Most civil trials in British Columbia are heard without a jury. However, with some exceptions, a party to an action may request a jury within 21 days of receiving notice of the trial date. The requisite fee must be paid to the sheriff 28 days before trial. Whether a jury is appropriate is a matter to be discussed with counsel.

(c) Steps Towards Settlement

Most litigation settles prior to trial and counsel will assist in identifying when a settlement is feasible. Outside assistance is sometimes required and there are various processes that can be employed.

The British Columbia government has introduced a mandatory mediation regime in all cases – other than family law, administrative, and sexual abuse matters – which allows one party to force other parties to mediate. However, even in the absence of such legislation, mediations are increasingly popular, due in part to their success rate. The parties to the litigation, along with their counsel and an impartial third party, the mediator, meet to present their impressions of the case and attempt to work out a settlement that is satisfactory to all parties. A mediation may last a few hours or, in more complex cases, a few days. It is possible to involve the court and have a judge act as a mediator. However, most mediations are conducted in front of lawyers who have specialized training as mediators.

Many commercial contracts require that disputes be submitted to arbitration. These contractual remedies are intended to replace the involvement of the courts and the usual litigation process. It is also possible, if the parties are in agreement, to resort to arbitration once the litigation is underway. An arbitration differs from a mediation in that the arbitrator can make decisions and impose a resolution on the parties.

The assistance of the court may also be sought. Besides a mediation, it is also possible to seek a settlement conference before a judge. The format of a settlement conference is flexible, but the intention is to explore the possibilities for settlement with the assistance of a judge or master.

Unless the court orders otherwise, a trial management conference is required at least 28 days before a matter proceeds to trial. Trial management conferences are intended to deal with matters that facilitate the trial of the action, such as simplifying the issues, the possibility of admissions and common books of documents. Lawyers and each party are now required to attend a trial management conference.

Trial

Trials are complex and time consuming. The key is preparation and even the simplest trial will require careful preparation.

Most trials proceed on the date scheduled with the court, but it is not uncommon, if the court's agenda is too full, for a trial to be adjourned to a later date.

The Plaintiff will proceed first. Following an opening statement from Plaintiff's counsel, each of the Plaintiff's witnesses will take the stand to present his or her evidence. Defence counsel will have an opportunity to cross-examine each of the Plaintiff's witnesses. Once the Plaintiff's evidence is complete, the Defence proceeds. The Plaintiff has an opportunity to call rebuttal evidence following the defence witnesses. How and what evidence is before the court is crucial because the judge's decision can only be made on the basis of the facts properly presented to him or her. Thus, it is not unusual to have various objections and applications to the judge regarding the admissibility of evidence.

Once the evidence is presented, the parties present argument. The argument will focus on the proper application of the law in light of the facts now before the court. The time required for argument will depend on the complexity of the case.

Following argument most judges will reserve their decision, which means that their Reasons for Judgment will be handed down at a later date. Following the judgment, an order is taken out setting out the relief granted. If damages and costs are owing they will then be paid by the party responsible, although it is sometimes necessary to commence collection proceedings and seek the court's assistance to realize on the judgment.

Costs

Costs are usually awarded to the party who is successful at trial. This is not always the case because costs are in the discretion of the trial judge and if a successful party has, for instance, acted improperly or caused needless delays, that party may not be awarded costs.

It is also important to keep in mind that costs are usually awarded on the basis of a tariff established by Court. The tariff is not intended to fully reimburse a party for all the fees that have been paid to counsel. As a litigation matter progresses counsel will issue accounts on a regular basis. The accounts will include charges for both fees, usually charged on an hourly basis, and for disbursements, which are ongoing expenses such as court filing fees and photocopying. Occasionally, counsel will agree to proceed with litigation on the basis of a contingency agreement and such a possibility should be raised and discussed with counsel early in the litigation process. However, even when a contingency agreement is in place, a client is usually expected to pay disbursements as they arise.

As a general rule, a person proceeding to litigation should not expect to recover more than a third of actual legal expenses even if they are successful at trial. Occasionally a court will award special or increased costs, but such awards are the exception.

It follows that a party who is not successful at trial will pay the costs of the successful party. These will not necessarily be all of the other party's costs, but the expense could still be significant, particularly if the litigation has been lengthy and complex.

If one party has made an offer to settle pursuant the Rules and the other party fails to do better at trial than the other party would have done by accepting the offer, a judge has the discretion to impose cost consequences. Costs are one means the court has to ensure that parties take the litigation process seriously and this includes the careful consideration of offers to settle.

It is very important to discuss the issue of costs with your counsel before litigation is commenced and to revisit the issue throughout the litigation process. The "costs" must be weighed against the "benefits".

In Summary

The foregoing is only a brief overview of the litigation process. Hopefully this overview goes some way to clarifying what can be a complex and puzzling process. Questions can and should be directed to counsel.