What are the Steps in a Tort Lawsuit for Personal Injuries?

General Overview

If you’re involved in a motor vehicle accident and sustained catastrophic or very severe injuries and impairments, then in addition to proceeding with an accident benefits claim on your behalf against your insurer, I’ll also kickstart a civil litigation case for you against the at-fault driver as well. I’ll do this to claim monetary compensation for you in the form of compensatory damages.

If you want to learn more about the ​​various kinds of monetary compensation you can claim in a tort lawsuit for compensatory damages, then please click the “link” to read my blog entitled “What Damage Awards Do I Get from a Successful Tort Action?”.

If you want to learn more about the companion accident benefits claim, and kickstarting the accident benefits application process, then please click the “link” to read my blog entitled “How to Get Your Accident Benefits Application Started”.

What are the Steps in a Tort Lawsuit for Personal Injuries?

A civil litigation case is a tort lawsuit between you and another party or parties, such as the negligent at-fault driver, where there is a disagreement on legal matters. This can range from disagreements over your claims for compensatory damages for your personal injuries and impairments, and the degree of negligence of the other driver, to the degree to which the accident was caused by the negligence of the other driver.

What are the Steps in a Tort Lawsuit for Personal Injuries?

I’ll start your tort lawsuit by drafting a statement of claim for you, which articulates all of the relevant facts of your civil litigation case, as well as the legal basis for your entitlement to monetary compensation in the form of compensatory damages. I’ll then file it in the courthouse and serve it on all of the parties I’m claiming damages from, on your behalf. This is what we’d call the tort action. 

However, you can also kickstart a civil litigation case via what’s called an application in certain circumstances allowed by a specific Act or the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, where I’d draft and then file a Notice of Application, which articulates the specific Order I want the court or judge to make on your behalf. If, however, I was bringing a tort action against the Ontario government, such as a civil litigation case where you slipped and fell on government property and sustained injuries and impairments, then I’d have to first provide notice to the government prior to kickstarting your claim pursuant to the Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50.

What are the Steps in a Tort Lawsuit for Personal Injuries?

Since you sustained either catastrophic or very severe personal injuries and impairments, then there is a great degree of probability that the amount of compensatory damages that I’d be claiming on your behalf will surpass $35,000. Therefore, I wouldn’t be starting your tort action in Small Claims Court, but rather the Superior Court of Justice. 

Stage 1: Intake

Retainer Agreement

One of the first things that’ll happen before I start a tort action or lawsuit on your behalf, is for you to enter into a contractual agreement with my law firm. My contractual agreements are almost always a retainer contingency fee agreement, where you don’t pay me anything upfront, but rather I charge you a percentage of the amount of money awarded to you in a successful settlement or court judgment following a successful civil trial. However, I’d explain to you that you have the option of retaining me as your lawyer other than by a retainer contingency fee agreement. The other option I’d present to you, is charging you an hourly fee for my legal work done, or alternatively, by accepting court ordered costs as the fee. However, the vast majority of people pursuing personal injury tort actions choose the retainer contingency fee agreement, because it’s too expensive for most people to pay an hourly fee on a case that could go over two years, especially if they are too injured to work after the motor vehicle accident.

Stage 1: Intake

In addition to my retainer contingency fee agreement incorporating more than two dozen required clauses further to the Solicitors Act, R.S.O. 1990, c.S.15, Contingency Fee Agreements, O. Reg. 195/04, it will also clearly articulate, but not limited to, the following:

  1. Confirm in writing that my law firm has been retained by you;
  2. Confirm that we’ll be representing solely you, or if you and another person such as a family member who was alo injured in the accident, are agreeable to me representing both of you, then I’d articulate to you both the principle of undivided loyalty, as well as conflicts of interest that may arise with the joint representation;
  3. Articulate the legal services that I will provide you as I represent you in relation to your injuries and impairments sustained in your accident;
  4. Articulate what legal services I won’t be providing you;
  5. Articulate my obligations to you as I represent you in your tort action;
  6. Articulate the compensatory damages that I expect to obtain for you either through a settlement with the other party or from a judge following a successful trial;
  7. Articulate the approximate time we expect your lawsuit will take to settle or go to trial;
  8. Articulate your role as a client in being honest with me, and giving me all the facts and information I need, as well providing me authorization to get from third parties all of the pertinent information relevant to your legal matter;
  9. Articulate to you my legal fee, expenses, and billing arrangements;
  10. Articulate the percentage I’ll be charging you from the amount of money awarded to you in a settlement or court judgment following a successful trial;
  11. Provide a clear example of our contingency fee calculation;
  12. Confirm that I’ll seek a sum of money from the Defendant called “costs”, and unless ordered otherwise by a judge, you’ll be entitled to receive any costs awarded in a settlement or court judgment following a successful trial;
  13. Confirm that you agree to pay all disbursements, even if I can’t settle your claim or lose at trial;
  14. Confirm that you agree to pay any Harmonized Sales Tax that I must charge you;
  15. Explain how my contingency fee is calculated and paid, if your tort claim for compensatory damages are paid out by way of a structured settlement;
  16. Explain what happens in the event our relationship ends either by you or by me;
  17. Explain what happens if you are a minor or a person under disability;
  18. Articulate my privacy policy in respect to using or sharing any confidential information you share with my law firm;
  19. Articulating that I can’t guarantee success, even though I’ll fight tireless to obtain a successful outcome for you; and
  20. Articulate the consequences of signing the contract and confirming that it contains the whole agreement between us.

You will be provided with a copy of the signed retainer contingency fee agreement to keep for your personal records.

Theory of the Case

I always begin with developing an initial theory of your case, which I don’t view as something that is static, but rather organic, in that it is continually evolving as your case evolves with emerging facts, the application of the law to your facts, and new evidence. Therefore, I’ll continue to amend your case theory at the significant milestones that we reach together through the progression of your tort case in the litigation process.

Theory of the Case

I view the theory of the case as the expression of the dominant central position that I intend to assert at your trial, which is the end goal that I set, because even if we don’t go to trial, it is best to prepare as if we are. The theory of your case that I develop is the basic overriding theme, which captures in a few words the justice of the position I’m taking on your behalf. It’s the message I want to deliver for you that’s comprised of mixed fact and law, which I want the trier-of-fact to accept at your trial, and ultimately identify with and grant judgment in your favour with the damage awards I’m seeking for you, at the conclusion of your civil litigation case.

Obtain Authorizations and Directions

It is imperative that we have access to all of the pertinent information from third parties that are relevant to the legal issues in dispute in your civil litigation case, in order to start a successful tort lawsuit on your behalf. So, I’ll have you sign Authorization and Direction forms, shortly after you sign the retainer contingency fee agreement. We need copies of all the letters and documents related to your motor vehicle accident, inclusive of, but not limited to, documents in the possession of third parties, such as, but not limited to: your medical reports; your clinical notes and records from your treatment providers; your income tax records; your paycheque stubs; and your medical, drug, and parking receipts, et cetera. 

Obtain Authorizations and Directions

Once you sign these forms, you authorize and direct third parties, such as your family physician for example, to provide my law firm with a copy of your complete files, information, documents, records and/or notes of any type or kind of yours that are in their possession, and are related to your legal matters with respect to your tort action. This includes all relevant information that I may request on your behalf from time-to-time regarding the status of your file, pursuant to the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, and the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A.

Diarize Limitation Periods and Dismissal Dates

Two Year Statute of Limitation Period

Soon after you sign the retainer contingency fee agreement, one of the first things that I’ll do is diarize the limitation period for the filing of your Statement of Claim in accordance with the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, which applies to your tort action for compensatory damages for your personal injuries and impairments. Under s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, your claim for compensatory damages is statute-barred, in respect of such a claim after the second anniversary of the day on which your claim was “discovered”.

Two Year Statute of Limitation Period

The Discoverability Doctrine

Further to s. 5(1) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, your claim is discovered on the earlier of the day upon which you first knew, or a reasonable person with the abilities and in the circumstances of that person first ought to have known one of the following: 

  1. Your injury, loss or damage had occurred;
  2. Your injury, loss or damage was caused by or contributed to an act or omission;
  3. The act or omission was that of a person against whom your claim was made; and
  4. Having regard to the nature of your injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.

Further to s. 5(2) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, you are presumed to have known of the above-listed matters on the day the act or omission upon which your claim for compensatory damages is based, took place, unless the contrary is proven.

The Ultimate Limitation Period

I’ll also diarize your ultimate 15 years limitation period, which is established pursuant to section 15 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, after which the tort proceedings cannot go ahead. However, in accordance with s. 15(4) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, your ultimate period will be suspended if the following applies:

  1. You are not capable of commencing a proceeding due to your physical, mental or psychological condition, and if you are a minor, you’re not represented by a litigation guardian;
  2. You are an unrepresented minor or a person;
  3. Your potential defendant willfully concealed that he or she was the cause of, or that he or she contributed to your injuries and impairments; or
  4. Your potential defendant willfully misled you as to the appropriateness of a proceeding to remedy your injuries and impairments.
The Ultimate Limitation Period

It’s essential to diarize your statute of limitation periods and ensure they aren’t missed, as the expiry of your limitation period will constitute a defence to your tort action, which will be pleaded in a Statement of Defence issued by the lawyer of the defendant I’m suing on your behalf. 

Stage 2: Pleadings

Issue a Statement of Claim

Your Statement of Claim is an “originating process”, which means that it’s the document that commences your tort action or lawsuit. A Statement of Claim concerning your tort action for personal injuries and impairments, would explain, but not limited to, the following:

  1. The specific heads of damages you’re claiming and the amount of monetary compensation you’re seeking;
  2. Who you are, in terms of being the injured plaintiff;
  3. A description of any of your family members claiming damages pursuant to the Family Law Act, R.S.O. 1990, c. F.3 (if applicable);
  4. A description of the defendant or defendants who you are suing;
  5. A description of your motor vehicle accident and the accident dynamics;
  6. The specific allegations of negligence you’re making against each of the aforementioned defendant or defendants;
  7. A description of your personal injuries and impairments sustained as a direct result of the defendant’s negligence, which caused the subject motor vehicle accident; 
  8. A description of your family members loss of care, guidance and companionship, and other losses for which compensatory damages can be claimed under the Family Law Act, R.S.O. 1990, c. F.3;
  9. The statutes which contain specific provisions that you’re relying on in proving the allegations made in the Statement of Claim; and
  10. The location, or the city in Ontario, where you propose the tort action should be tried in, if it cannot be resolved by a settlement and therefore must proceed to trial.

In preparing your Statement of Claim pursuant to Form 14A or 14B, I’d ensure I have the full legal name(s) and address(es) of the individual(s) or business(es) I’m suing on your behalf. I’ll ensure that I have the pertinent facts about your case, including a clear summary of how the motor vehicle accident happened. I’ll also ensure that I have a clear understanding of the relief I’ll seek on your behalf in the form of compensatory damages, and why you’re entitled to them under the law, plus an understanding of the supportive evidence I’d need to bolster your claim. 

Stage 2: Pleadings

Once I finish your Statement of Claim, I’ll issue or file it in the Superior Court of Justice of the city that we propose your action to be tried in, upon paying the applicable court filing fees.

Notice of Action

If at any point I needed more time to file your Statement of Claim, then I’d simply file a Notice of Action pursuant to Form 14C, which will give us an additional 30 more days to file it pursuant to Form 14D.

Serving the Defendant

Once your Statement of Claim is filed with the courthouse, it will stamp and date it. Then we have six months to personally provide a copy of the Statement of Claim to each of the named defendants to whom we’re suing and to whom we made specific allegations of negligence against, which is known as “serving the defendant”. If we were suing the provincial government, then we’d have to serve the Statement of Claim on the Ministers of the Crown, including the Attorney General of Ontario.

Affidavit of Service

Once I personally serve your Statement of Claim on all of the named defendants, I will ensure that an Affidavit of Service pursuant to Form 16B is completed for each defendant and subsequently filed with the court. It’s a legal document also known as a Proof of Service, which serves as proof that the defendant(s) received a legal document – your Statement of Claim – from us.  

Statement of Defence

The defendants named in your Statement of Claim, who have been personally served with it, will prepare a Statement of Defence pursuant to Form 18A, and then serve it on everyone else named in the legal matter, including me on your behalf. The defendants will also complete an Affidavit of Service pursuant to Form 16B for each named party in the legal proceedings, and file their Statement of Defence with the same courthouse that I filed your Statement of Claim on your behalf.

Third Party Liability Coverage

In Ontario, we have a standard auto insurance policy called Ontario Automobile Policy Owner’s Policy, or OAP 1, which makes it mandatory for all owners of vehicles to purchase third-party liability coverage to protect them if someone else is killed or injured, or their property is damaged. Therefore, if the defendants I’m suing on your behalf have purchased this mandatory liability insurance coverage, then it will pay for claims as a result of our successful tort lawsuit against them up to the limit of their coverage. It will also pay the costs of settling your claims against them.

Third Party Liability Coverage

By law, owners of vehicles in Ontario must carry a minimum of $200,000 in third-party liability coverage, but options exist to increase the minimum amount; typically to $1 million. So, the defendants typically advise their insurance company of the Statement of Claim that they’ve been personally served with, and then their insurance company retains a law firm to prepare the Statement of Defence and defend the tort action.

Time Limits for Service

If the defendants wish to defend the legal proceedings that I have commenced on your behalf against them, then the defendants or an Ontario lawyer acting for them must prepare the aforementioned Statement of Defence, serve it on us and the other parties, and file it with proof of service within the following time limits:

  1. 20 days after the Statement of Claim is served on them, if they were served in Ontario;
  2. 40 days, if the defendants were served in another province or territory of Canada or in the United States of America; and
  3. 60 days, if the defendants were served outside of Canada and the United States of America.
Time Limits for Service

Notice of Intent to Defend

The defendants can also opt to serve and file a Notice of Intent to Defend pursuant to Form 18B, which will entitle them to 10 more days within which to file and serve their Statement of Defence.

Default Judgment

However, if the defendants fail to defend the legal proceeding that I have commenced on your behalf against them, then a default judgment may be given against them in their absence and without further notice to them. The court will assume that the defendants have admitted to the claims made against them and I’ll be able to ask the court to order them to pay your claim for compensatory damages; however, I’d still have to present evidence to the court and prove that you’re entitled to the award of damages you seek. Lastly, the default judgment can be enforced against the defendants’ property and assets.

Default Judgment

Respond with Various Originating Processes

A defendant in the personal injury tort lawsuit will have the choice of taking any of the following actions:

  1. Settle the case with you at any stage of the legal proceeding;
  2. Commence an “originating process” known as a Counterclaim pursuant to Form 27A or 27B against you, if for example, he or she believes that your negligence caused him or her personal injuries and impairments, where you’ll be able to file a Defence to the Counterclaim;
  3. Commence an “originating process” known as a Crossclaim pursuant to Form 28A against another named defendant in your Statement of Claim, if he or she believes the other defendant’s negligence was responsible for your personal injuries and impairments, and the compensatory damages you seek, where the other defendant would be entitled to file a Defence to the Crossclaim;
  4. Commence an “originating process” known as a Third Party Claim pursuant to Form 29A against a person, business or the government that is not a party to your civil litigation case, which would be issued and served separately on the third party similar to your Statement of Claim, and where the third party would be entitled to file a Defence to the Third-Party Claim.

The Statement of Defence will deny all allegations in your Statement of Claim unless otherwise admitted.

Stage 3: Discovery

The Discovery Process

Further to Rules 30 and 31 of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, there are two components to the discovery process that you’ll experience, which are as follows:

  1. Documentation discovery → Rule 30; and
  2. Examinations for discovery → Rule 31.

The primary purpose of the discovery process is to enable both the plaintiff and the defendant to better understand the case that they have to meet via the exchange of pertinent information and documentation (document discovery) combined with cross-examination or asking the other party specific questions while being recorded (examination for discovery) that’s relevant to the issues in dispute in your tort action or lawsuit. 

Stage 3: Discovery

Benefits of Discovery

Some of the benefits to you that come with proceeding with the mandatory discovery process are, but not limited to, the following:

  1. Assess the strengths and weaknesses of the other parties’ case before I prepare for trial;
  2. Narrow the issues for the trial I’ll conduct on your behalf (if necessary); and
  3. Potentially reach a favourable and equitable settlement prior to going to trial.

The Discovery Plan

Prior to the commencement of the discovery process, I must agree with the other parties on a discovery plan within 60 days of the close of pleadings (i.e. after the time expires for me to produce a reply to the Statement of Defence), unless we mutually agree to a longer period of time.

Further to Rule 29.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the discovery plan must include, but are not limited to, the following:

  1. The types of documents you and I, and the other parties are going to provide to each other; 
  2. The dates by which you and I, and the other parties will each serve your Affidavit of Documents pursuant to Form 30A or 30B;
  3. Information about the timing, costs and the way in which the documents will be produced;
  4. The names of each person being examined in the discovery, and information about the timing and length of the examinations; and
  5. Any other information to ensure a quick and cost-effective discovery process. 

As I prepare the discovery plan, I must consider the Sedona Canada Principles addressing electronic discovery.

Documentary Discovery

The document discovery stage of the process involves an exchange of documents between you and I, and the other parties and non-parties, which are relevant to the legal issues in dispute in your tort action. The most essential document in regards to document discovery is what is known as the Affidavit of Documents. 

Affidavit of Documents

An Affidavit of Documents includes a sworn statement from you confirming that you have conducted a diligent search of all your records and made appropriate enquiries of others to inform yourself, in order to ensure that your affidavit discloses, to the full extent of your knowledge, information and belief, all documents relevant to any matter in issue in your tort action, which are or have been in your possession, control or power. It can include, but are not limited to, the following documents: videotapes or film, photographs, sound recordings, charts, graphs, maps, plans or surveys, books of account, data and information in electronic form (i.e. emails), et cetera.

Affidavit of Documents

The Affidavit of Documents contains three different “schedules” as follows:

  1. Schedule “A”, where I’ll list those documents that are in your possession, control or power, and that we don’t object to producing for inspection;
  2. Schedule “B”, where I’ll list those documents that are or were in your possession, control or power, and that we object to producing because we claim they are privileged, and where I have stated the grounds for each such claim (i.e. litigation privilege, solicitor-client privilege, et cetera); and
  3. Schedule “C”, where I’ll list those documents that were formerly in your possession, control or power, but are no longer in your possession, control or power, and where I have stated when and how you lost possession or control of, or power over them, and their present location.

If we later find new relevant documents after I served your Affidavit of Documents to the other parties, then we must disclose them by serving a supplementary Affidavit pursuant to Form 4D.

Inspection of Documents

I can ask to inspect a document in the other party’s possession, but they can also ask to inspect your documents too.

If we require a document from a non-party, but they are unwilling to produce it to us for inspection, then I will bring a motion in the courthouse to obtain an endorsed Order by a judge, which compels them to produce it to us under Rule 30.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

Examination for Discovery

The examination for discovery stage of the process involves obtaining oral evidence from you and the defendant under oath and before trial, where the lawyers for the opposing party ask questions via cross-examination of the opposing party, and their lawyer, pertaining to the relevant issues contained in the pleadings (i.e. Statement of Claim, Statement of Defence, et cetera). The determination of which questions are deemed relevant at your examination for discovery is ultimately shaped by what we plead or claim in your Statement of Claim. Therefore, if an issue emerges from what is pleaded in the paragraphs of your Statement of Claim, then the other lawyer can ask you about it at your examination for discovery.

Notice of Examination

In order to cross-examine an opposing party in your civil litigation case, I must serve a Notice of Examination pursuant to Form 34A, which tells them how to attend the examination for discovery by providing, but not limited to, the following information:

  1. A time and place;
  2. Telephone conference details; and
  3. Video conference details;

Location of the Examination for Discovery

The examination for discovery typically takes place inside a boardroom type-setting at an official examiner’s office so that it can be recorded. This enables us to ask to have it transcribed so we have a written record of what was said at the examination for discovery. You can be examined by the other party or parties for up to seven hours, which applies regardless of whether you and the Family Law Act claimants are also being cross-examined. However, most examinations for discoveries don’t last that long. Alternatively, we can agree to different time limits.

Location of the Examination for Discovery

In addition to the lawyers and the person being cross-examined, being present in the room, there is also a court reporter whose job it is to transcribe everything that’s said on-the-record, in order to produce a transcript. Transcription allows me to order a copy of the transcripts directly from the court reporter, which typically costs approximately $5 to $7 per page, depending on how quickly I want a copy of the transcript. 

Testifying Under Oath

Prior to the commencement of your examination for discovery, you’ll have the option to swear on a Holy bible to tell the truth, or make an affirmation to tell the truth if you are not catholic. Once you start testifying under oath, as your lawyer, I am not permitted to discuss your case or the evidence with you. However, I can communicate with you on the record, which is inclusive of advice as to whether to answer a question. I can also object to questions that I find objectionable, and then state my reasons for not allowing you to answer the question, on the record.

Taking Notes

During the course of the examination for discovery, I will make notes, including, but not limited to, writing down answers to the key questions or major points of contention, and documenting any key contradictions contained in the testimony, as well as my impressions of the witnesses that will give oral evidence at trial.

Undertakings

During the course of your examination for discovery, the opposing lawyer will ask for what is known as “undertakings”, which are formal requests to provide additional information or records not included in your Affidavit of Documents, but that are relevant to the issues in dispute in your tort action. If what the other lawyer is asking for is relevant, then I will agree to provide it. If I want time to consider the relevance of the request, then I will take it under advisement. If it is not relevant, then I will refuse to provide it and state my reasons on the record.

Undertakings

After the examination for discovery, I’ll commence the process of sending out request letters along with your signed Authorization and Direction forms to third parties (i.e. family doctor, employer, treatment providers, Canada Revenue Agency, et cetera), in order to satisfy the outstanding undertakings as soon as possible, which can take up to three months, depending on the documents that are being requested.

The Objective at an Examination for Discovery

My objective as a lawyer during an examination for discovery, where I’m cross-examining the other party and their lawyer, are, but not limited to, the following:

  1. Obtain admissions;
  2. Learn about the evidence in the possession of the opposing party;
  3. Narrow the issues; and
  4. Determine the strengths and weaknesses of the opposing party’s case.

If I successfully achieve the aforementioned objectives, then I’ll create an opportunity for a potential early resolution. An examination for discovery often forces both parties to examine the respective strengths and weaknesses of our civil litigation cases. Upon recognizing the potential pitfalls of our respective civil litigation cases, this often develops room for compromise that facilitates settlement discussions.

The Objective at an Examination for Discovery

My objective as a lawyer during an examination for discovery, where you are being cross-examined by the other lawyer, is to adequately prepare you, as, but not limited to, the following:

  1. Ensure you are familiar with all of the issues contained in your Statement of Claim;
  2. Ensure you are familiar with all of the relevant facts, which constitute the evidentiary basis that supports your claims for monetary compensation in the form of compensatory damages;
  3. Ensure you are familiar with the accident dynamics of your motor vehicle accident;
  4. Ensure you are familiar with your medical records, which constitute the evidentiary basis for your accident-related severe and permanent impairments that substantially interfere with your ability to function;
  5. Ensure you are familiar with your past recorded statements, past medical and health history, past work history, pre-existing conditions, and non-tortious issues, or injuries and impairments not related to your motor vehicle accident, which can create potential causation issues; and
  6. Protect your credibility by ensuring that your present oral testimony is consistent with your past recorded statements and the totality of records that comprise your Affidavit of Documents.

Stage 4: Set the Tort Action Down for Trial

Set Your Tort Action Down for Trial

After the examinations for discovery are completed and the undertakings are satisfied, the next step is to ask for a trial date, which is known as “setting the action down for trial”. Even if I intend on booking a private mediation/settlement conference to discuss the possible settlement of your file, I still like to strategically set the matter down for trial. I do this because it creates a sense of urgency for the other party to act, as they intuitively know if they don’t they’ll be investing a lot of time and money in preparing for a risky trial that has a fixed date in the future. 

The Trial Record

In order to set your tort action down for trial, I will prepare and file your trial record, which further to Rule 48 of the Rules of Civil Procedure, .R.O. 1990, Reg. 194, contains, but is not limited to, the following:

  1. A table of contents;
  2. A copy of any jury notice;
  3. A copy of all the pleadings (i.e. Statement of Claim, Statement of Defence, Counterclaims, Crossclaims or Third-Party Claims);
  4. Orders made in your case; and
  5. A certificate signed by me, the lawyer, setting the action down for trial. 
The Trial Record

Furthermore, if your tort action is defended, meaning the defendant wasn’t noted in default for not filing a Statement of Defence, then I will set your tort action down for trial by doing, but not limited to, the following:

  1. Serving your trial record on the other parties;
  2. Filing your trial record with the court with proof of service; and
  3. Paying any court filing fees.

If, however, your tort action was undefended, then further to Rule 19 of the Rules of Civil Procedure, .R.O. 1990, Reg. 194, I’ll set your tort action down for trial by filing your trial record with the court, in order to go to trial to obtain a default judgment, after trying other ways of getting the default judgment prior to trial, but to no avail.

Avoiding a Dismissal of Your Action

The other reason why it’s essential to set your tort action down for trial is because the court can, and will, dismiss your action, if, but not limited to, the following:

  1. Your tort action is not set down for trial or settled within five years of the start date, unless the court ordered otherwise; and
  2. Your tort action was taken off the trial list and not put back on the list within two years, unless the court ordered otherwise;

Order Dismissing Action for Delay

The court will not provide us with any notice that your action is being dismissed, as we’ll only receive an Order Dismissing Action for Delay pursuant to Form 48D.

Consent Timetable or Status Hearing

If for whatever reason I cannot set your tort action down for trial within five years of the start date, then I will take action to either:

  1. Obtain the consent of all the parties and draft a timetable, filed with the court at least 30 days before the five year or two year deadline, which shows the court: 
    1. The steps to complete before your tort action can be set down for trial or restored to the trial list;
    2. The date(s) the steps need to be completed by;
    3. A date the action must be set down for trial or placed back on the trial list, provided it is not more than seven years after your claim; or
  2. Bring a motion for a status hearing any time before the five year or two year deadline, if the parties don’t consent to a timetable, in order to ask for a court Order allowing the action to move forward.

Stage 5: Private Mediation/Settlement Conference

Your Private Mediation/Settlement Conference

A private mediation/settlement conference is a confidential, informal discussion without prejudice between us and the other parties in your tort action, in an attempt to resolve your tort action for an equitable and just settlement, prior to trial. It can occur with all parties meeting with an independent, neutral and unbiased mediator – usually a senior personal injury law lawyer – who assists and guides the parties toward our own voluntary resolution, by helping us further narrow the issues, better understand the strengths and weaknesses of each other’s cases, and focus on the important legal issues needed to narrow the gap between our respective settlement proposals. It can also be arranged voluntarily by counsel without a mediator, where the parties meet with their respective lawyers, or the lawyers meet alone and report back to their respective clients.

Stage 5: Private Mediation/Settlement Conference

Mediations Governed by Law

For personal injury proceedings in Ontario, mediation requirements may be governed by the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194 or provisions under the Insurance Act, R.S.O. 1990, c. I.8. Rules or legislation that apply to mediation in Ontario differ depending on where the proceedings are commenced and the cause of your injuries. Depending on the applicable law, mediation may be mandatory or discretionary, and different rules govern the appointment of the mediator, court filings and other procedural issues. 

Why Proceed with a Private Mediation/Settlement Conference?

After the examinations for discovery are completed and the undertakings are satisfied, where both parties have all the documentation they need to know the case they have to meet, have examined the respective strengths and weaknesses in our civil litigation cases, and recognized the potential pitfalls, again, this often develops room for compromise that facilitates settlement discussions. For this reason, I like to always explore the possibility of proceeding with a private mediation/settlement conference. Other smaller factors that I consider upon determining whether a private mediation/settlement conference is appropriate for your tort action, is the status of litigation and my relationship with opposing counsel. 

Settlement Briefs and Settlement Proposal

Regardless of what kind of private mediation/settlement conference we select, there is always an exchange of comprehensive settlement briefs, which present the settlement offer, and outline the theory of the case, and the evidence that will be relied upon at trial to justify the award of compensatory damages that’s being sought. I will draft on your behalf a comprehensive settlement proposal, which includes, but is not limited to, the following:

  1. A justifiable full and final, all-in settlement proposal at the high-end of the range based on precedents set in factually similar cases, plus a breakdown of the settlement by the various heads of damages; 
  2. My theory of the case;
    1. A discussion on the liability issue;
    2. A discussion of your immediate post-injury complaints and care;
    3. An outline of all of your injuries sustained from head-to-toe;
    4. An explanation of your hospitalization and treatment, and medical visits from the accident to the present time;
    5. An exploration of your pain, suffering and loss of enjoyment of life connected with each of your injuries cumulatively;
    6. A discussion of the interference with your normal activities of daily living; 
    7. An exploration of your past income loss, and future career plans and anticipated income;
    8. An exploration of your past care costs, and future care needs or desires and costing;
    9. A discussion of the interference with your family relationships; and 
    10. An exploration of your special damages;
  3. A detailed discussion of the liability issue, inclusive of the accident dynamics and the law surrounding liability in motor vehicle accidents;
  4. The law surrounding the legislative threshold test in tort actions;
  5. A comprehensive review of all of the relevant medical evidence, inclusive of your pre-existing injuries, previous motor vehicle accidents, your non-tortious injuries after your motor vehicle accident, and your accident-related injuries and impairments, articulated in all of your clinical notes and records laid out in chronological order;
  6. A discussion of any causation issue, and a review of the law pertaining to dealing with causation issues in tort actions;
  7. An outline of your employment capacity, inclusive of a summary of your work history;
  8. An outline of your education, certifications, and qualifications;
  9. A comprehensive, comparative analysis of your activities of daily living both prior to and after your motor vehicle accident, inclusive of your:
    1. Self-care activities; 
    2. Household care activities; 
    3. Employment, school, training, and/or recreational activities;
    4. Shopping activities and your ability to manage your money; 
    5. Travel activities; and 
    6. Communication capabilities.
    1. A discussion of the evidence supporting your claim for general non-pecuniary damages, inclusive of a comparative analysis with at least two other factually similar cases to yours, which I’ll vind via extensive legal research;
    2. A discussion of the evidence supporting your claim for pecuniary damages, inclusive of post economic loss, future economic loss, loss of earning capacity, and a loss of competitive advantage in the workforce;
    3. A discussion of the evidence supporting your claim for costs of care, inclusive of both past and future costs of care;
    4. A discussion of the evidence supporting your claim for loss of housekeeping and home maintenance capacity, inclusive of a comprehensive review and comparative analysis with the leading case from the Court of Appeal for Ontario; and
    5. A discussion of the evidence supporting your claim for special damages and out-of-pocket expenses to date.

     

    The Advantages of a Private Mediation/Settlement Conference

    The advantages of voluntarily proceeding with a private mediation/settlement conference include, but are not limited to, the following: 

    1. It saves you time and money by resolving a matter without going to trial;
    2. It allows you to reach a settlement and gain access to funds quickly;
    3. The proceedings are kept confidential and out of the public eye;
    4. What is said at the proceedings is on a without prejudice basis, so it cannot be used against you if the mediation is unsuccessful and we ultimately go to trial;
    5. There’s a potential cathartic effect for you too, as the heavy burden of the litigation process and the mounting stress of the unknowns surrounding a long, risky trial are figuratively removed from your shoulders, and you could move on with your life;
    6. Together with the other parties, we can control and design the settlement based on our own self-determination and interests, and the absence of the fickle whims of a jury;
    7. The unbiased, neutral mediator is well-trained, can assist with negotiations between all of the parties, and help us expedite the settlement process; and
    8. The setting is informal.
The Advantages of a Private Mediation/Settlement Conference

Global Mediation

A global mediation is where I consolidate more than one of your legal proceedings, such as your accident benefits claim against your first-party insurer, your long-term disability claim against your second-party insurer, and your tort lawsuit against the negligent at-fault driver and his or her third-party insurer, into a single private mediation/settlement conference. If we proceed with a global mediation, then I’ll factor in the possibility that some of your compensatory damages may be set off against other damage awards. For example, your accident benefits claim for income replacement benefits and medical/rehabilitation benefits, will be set off against your tort claim for pecuniary damages and costs of care damages, respectively.

Things to Consider for a Global Mediation

Some things I always consider when advising you on whether we should proceed with a global mediation include, but are not limited to, the following:

  1. The status of your respective legal proceedings, and whether they are simultaneously ripe for mediation;
  2. Whether the opposing parties have differing opinions on the quantum or worthiness of your monetary compensation in the form of compensatory damages;
  3. Whether the opposing parties have conflicting information about you that may compromise your case if discovered; and
  4. The personalities of the opposing parties involved.

Stage 6: Pre-Trial Conference

Your Pre-Trial Conference

If your tort action has been set down for trial, then just before the actual trial date we must attend what is known as a pre-trial conference with a judge.

In order to schedule the pre-trial conference, I must contact the court registrar within 180 days of your civil litigation case being set down for trial. If I do not schedule it, then the court registrar will set the date for us.

Pre-Trial Brief or Memorandum

Prior to attending the pre-trial conference, I must complete a pre-trial brief or memorandum, which provides the pre-trial judge of the pertinent information he or she requires to adequately conduct it. The pre-trial brief or memorandum contains, but is not limited to, the following:

  1. Confirmation of whether your tort action is proceeding with a jury or judge-alone without a jury;
  2. Confirmation on things such as, but not limited to, the following:
    1. Pleadings are in order;
    2. Motions are complete;
    3. Documents and/or other productions are complete;
    4. Oral examinations are complete;
    5. Transcripts are available; 
    6. Notices to admit and responses are complete;
    7. Expert reports have been exchanged; and 
    8. Counsel attending for the party submitting the pre-trial brief is counsel with carriage of the file.
  3. An overview of the following:
    1. Substantive issues;
    2. Evidentiary issues;
  4. Legal considerations, such as, but not limited to, threshold considerations, deductible considerations, et cetera;
  5. A discussion of the evidentiary basis for the compensatory damages that I’m seeking on your behalf, inclusive of, but not limited to, general non-pecuniary damages, pecuniary damages, costs of care damages, loss of housekeeping and home maintenance capacity damages, and special damages;
  6. A discussion of relevant pre-accident and post-accident medical history; and
  7. A discussion of the expert reports that we are relying on for trial and the current medical evidence.
Pre-Trial Brief or Memorandum

Attending the Pre-Trial Conference

Once the pre-trial conference is confirmed by the court, you and I must attend at the courthouse, including all of the other parties and their respective lawyers, before a trial can proceed. Typically, only the lawyers go into the conference room to meet with the pre-trial judge, and the parties remain outside and available to provide instructions to counsel in the event that settlement proposals are made and exchanged between the parties.

The Discussion at a Pre-Trial Conference

Once all of the lawyers representing all of the parties to your tort action are present in the pre-trial conference, we have the opportunity to discuss with the pre-trial judge, but not limited to, the following: 

  1. Potential settlement;
  2. Narrowing down the issues or determining whether any of the issues can be simplified for trial; 
  3. The experts that will be called upon at trial and whether any of them are redundant; and
  4. How long you think the trial will last.
The Discussion at a Pre-Trial Conference

The judge who conducts the pre-trial conference cannot preside at the trial without the consent of all of the parties to your tort action.

Stage 7: The Trial

Your Trial

If we can’t resolve your tort action at a private mediation/settlement conference or at the pre-trial conference, then we proceed to trial. A trial is a coming together of all the parties in your tort action in a formal setting with the authority to adjudicate the dispute and your claims, where the lawyers marshal or adduce the facts, the applicable law, and the supportive evidence. The lawyers, including myself, argue them in an effective, compelling and persuasive manner before a trier-of-fact (judge or jury), who conducts a formal examination of the said evidence, in order to decide whether the monetary compensation in the form of compensatory damages you seek should be awarded. Subject to an appeal to the Court of Appeal for Ontario and possibly a subsequent appeal to the Supreme Court of Canada, the decision rendered at a trial is usually the end of the road for your tort action and legal dispute.

Stage 7: The Trial

The Trier-of-Fact

Your trial may be adjudicated by either of the following triers-of-fact:

  1. A judge alone without a jury; or
  2. A judge and a jury comprised of six jury members in a civil trial.

Jury Notice

Your case will be heard by a judge alone unless I or one of the lawyers for the other parties specifically request a judge and jury to hear your civil litigation case. In order for this to happen, I or one of the lawyers for the other parties, will need to file a Jury Notice pursuant to Form 47A.

Opening Address

Since, the burden of proof lies with you as the plaintiff to prove your case, I’ll commence the trial with an opening address to either the judge-alone or to a judge and jury, where, amongst other things, my objective is to inform the trier-of-fact of the salient facts. I’ll do this in order to provide the court with a broad general outline of your tort action to better enable them to follow the evidence that I will marshal forward by calling witnesses, and entering your documents or objects as exhibits.

Opening Address

The lawyer for the defendant won’t be called upon by the presiding judge to provide an opening address to the trier-of-fact, at least until he or she has heard my opening address, and likely not until he or she has had the opportunity to observe the examinations-in-chief and cross-examinations of all of the witnesses’ that I call to the stand to introduce evidence on your behalf. 

Lay Witnesses and Expert Witnesses

My witnesses are of two kinds, which are “lay witnesses” and “expert witnesses”. A lay witness can essentially only testify on their direct knowledge of what they actually witnessed, and not on his or her opinion of anything. An expert witness on the other hand, is an individual who possesses special knowledge or skill in respect of a subject upon which he or she is called upon to testify, after swearing to be objective and providing testimony that serves the court in enhancing its understanding. Furthermore, after he or she is qualified as an expert witness through a qualification process in the court, he or she is then permitted to give opinion evidence, which is limited to his or her area of expertise, and is deemed to be necessary to furnish the court with such expertise that is likely outside the experience and knowledge of the presiding judge or jury.

Lay Witnesses and Expert Witnesses

Summons to Witness, Attendance Money and Affidavit of Service

After my opening address, I will then proceed to call my first witness on your behalf. As such, I will need to advise all of the witnesses that I wish to call, when they must attend court. If any of the witnesses I intend to call on your behalf are reluctant or unwilling to attend your trial, then I will make them do so by serving them with what is known as a Summons to Witness pursuant to Form 53A, along with their attendance money to cover their expenses, such as travel. I will then file an Affidavit of Service with the court, in order to prove that I served the witnesses with the summons and delivered their attendance money to them. 

Examination-in-Chief or Direct Examination

As I call my first witness and all of the witnesses that I’m calling on your behalf, I ask questions via a technique known as “direct examination” or “examination-in-chief”, where I adduce the relevant and admissible evidence that they possess, which touch upon the matters in issue that I desire to bring to the attention of the court. The rules governing the direct examination or examination-in-chief are as follows:

  1. My questions must be phrased in such a specific and unambiguous way that they may be expected to elicit relevant, material and admissible evidence to reach the trier-of-fact; and
  2. Subject to the discretion of the presiding judge, leading questions – questions that suggest the desired answer to the witness – on material issues are not permitted in both direct examination and re-examination.

During an effective examination-in-chief, I won’t dominate the scene, but rather find a balance between guiding the discussion to emphasize crucial evidence while simultaneously proceeding in an unobtrusive manner, where my more open-ended questions allow the trier-of-fact to focus on our witnesses’ testimony without interference.

Cross-Examination

After I finish my examination-in-chief of the first witness, then the opposing lawyer representing the defendant, will be able to exercise his or her right to ask questions of the same witness via a technique known as “cross-examination”, subject to some limitations, where the lawyer is allowed to use leading questions that suggest the desired answer of the lawyer, in order to, amongst other things, determine whether the witness is credible by testing the veracity and accuracy of his or her story. 

Cross-Examination

During an effective cross-examination the questions of the lawyer should primarily elicit “yes” and “no” responses. 

The Six Objectives of Cross-Examination

The six objectives of cross-examination are, but not limited to, the following:

  • Destroy the evidence of the witness directly;
  • Destroy the evidence of the witness indirectly by attacking his or her credibility;
  • Elicit helpful admissions on the facts;
  • Set the mood or theme of the cross-examiner’s case;
  • Establish the defence; and
  1. Destroy the evidence of other witnesses.

Adair Q.C., Geoffrey D.E., On Trial. Second Edition, LexisNexis Canada Inc., 2004.

The Six Objectives of Cross-Examination

Re-Examination

After the opposing lawyer representing the defendant finishes his cross examination of our first witness, then I may proceed with a re-examination of our witness if I can satisfy a two-fold test, which is as follows:

  1. My questions must arise out of the other’s lawyer’s cross-examination with the intention to clarify, explain or place in context, any answers that were ambiguous, reasonably require explanation, or were taken out of context; and
  2. New material is not permitted in my re-examination, unless it is new material that arose for the first time in the other lawyer’s cross-examination.

I am not allowed to conduct my re-examination with leading questions, just as I am not permitted to do so during my examination-in-chief.

After either the other lawyer’s cross-examination or my re-examination (if necessary), I’ll then proceed to call my next witness on your behalf, and repeat this aforementioned process until all of our lay witnesses and expert witnesses are called. 

Defence Counsel’s Opening Address

The lawyer representing the defendant will then have the option to make an opening address to the judge or jury, but he or she is not required to do so. The defence lawyer will then call his or her first witness, and conduct an examination-in-chief. I’ll then have the right to ask questions of the defence lawyer’s witness via cross-examination. The defence lawyer may have the right to re-examine. This process will repeat until the defence lawyer has called all of his or her lay witnesses and expert witnesses.

Closing Addresses

After all of the witnesses have been called by all of the lawyers representing the parties to your tort action, we then proceed to the closing addresses to the judge or jury. As the plaintiff, you have the right to address the jury last where both parties adduced evidence, and as such, I’ll address the judge or jury last so our theory of the case and the final argument is the last thing they hear. As a general rule concerning the boundaries of the closing address, I’m permitted to address the jury by making submissions that fairly arose directly or indirectly from the evidence that was adduced throughout the course of your trial, so long as my submissions do not tend to sway the jury away from deciding your civil litigation case upon the evidence and the law. Even though I’m granted wide latitude in the manner in which I deliver my closing address by comparison to the opening address, such as an impassioned address on your behalf that stirs up the passion in them, there are limits. For example, if I make impassioned submissions that draw the jury away from their task of deciding your civil litigation case on the evidence, then the presiding judge would deem that to be improper, and the opposing counsel will surely raise objections in court.

Judge-Alone Judgment

After the closing addresses from the lawyers representing all of the parties in your tort action, in a judge-alone case, the presiding judge may make his or her decision at the end of the trial, or release his or her decision at a later time, which is known as “reserving judgment”. I can obtain a copy of the judge’s decision, which is set out in a judgment, Order or endorsement from the court office, upon paying a copy fee. 

Jury Trial Deliberation and Judgment

Jury Trial Deliberation and Judgment

If it’s a jury trial, then the judge addresses the law, but the jury addresses the facts. The judge will rule on the evidence, instruct the jury about the law, comment on the evidence, and decide whether there is sufficient evidence to be considered by the jury. The judge has a duty to determine whether any facts have been established by evidence from which negligence may reasonably be inferred, and the jury has a duty to determine whether, from those facts, upon being submitted to them, negligence should be inferred. After the presiding judge completes his or her duty to discharge the jury, they complete their duty and leave the court to deliberate until they reach a verdict.

Jury Trial Deliberation and Judgment

Appealing a Judgment at Trial

If we disagree with the judgment due to an error in law and/or an error in fact, then we can appeal the decision to the Court of Appeal for Ontario. The Supreme Court of Canada in the case entitled Housen v. Nikolaisen (2002), 211 D.L.R. (4th) 577, articulated the standard of review for errors of law, fact and mixed questions, as follows:

…Where the question is one of pure law, the standard is correctness. The standard of review for findings of fact is one of palpable and overriding error – a palpable error being one that is plainly seen. A question of mixed fact and law involves the application of a legal standard to a set of facts. The Supreme Court held that where the issue is negligence, deference is owed unless there is a legal or palpable and overriding error. Thus, in negligence cases, the standard of view for questions of mixed fact and law is one of palpable and overriding error, unless the trial judge made some error in principle, in which case the error may amount to an error of law which is subject to correctness.

The very last appeal that we can make is to the highest court in the country, which is the Supreme Court of Canada.

I hope you found this information valuable. Rudder Law Group’s website is your one-stop source for answers to all of your legal questions concerning catastrophic impairment law and personal injury law.