JRSB205 (summer 2010)

Topic 2, Lesson 3, Activity 1: Civil Litigation in a Superior Court

Group C

 

 

 

 

 

In participating:

Hernandez, Gustavo

 

 

 

 

Steps involved in civil litigation in the Court of Queen’s Bench

Figure 1 shows the general civil claim process.

Figure 1: Justice process, civil claims [1]

 

 

In a simplified process, in the Court of Queen’s Bench, there are four basic steps in every lawsuit:

 

1.      The Pleadings

The document that commences a civil proceeding is, in most cases, a Statement of Claim. It is filed with the Courts and then served upon the Defendant. It sets out the factual and legal basis for the claim. After receiving the Statement of Claim, the Defendant files a Statement of Defence, which sets out the factual and legal basis upon which the Defendant relies in defending the claim.

If a Defendant does not file a Statement of Defence, the Plaintiff may get judgment against the Defendant by default. In that case, the Plaintiff has won its’ case and can then take steps to enforce the judgment. Therefore, it is extremely important when sued to act promptly and consult a lawyer without delay.

These are only the essential pleadings, but there can be other forms of pleadings. For example, a Defendant can Counterclaim against the Plaintiff’s claim, which can be filed along with the Statement of Defence. Another example is that a Defendant can initiate a Third Party proceeding, if the Defendant feels that a party, who has not been named in the initial lawsuit, is partly, or wholly, at fault for the Plaintiff’s damages.

 

2.      Discovery of Document and Preparation of the Affidavit of Records

The next step in the litigation is to gather all relevant and material documents. These documents are given to your lawyer, who will prepare a list of the documents to be disclosed to the other party. Each party must prepare, swear, file and serve the other side with an Affidavit of Records containing this list. The material and relevant documents that are producible in the litigation are exchanged between the parties. Not all relevant and material documents will be disclosed to the other party, as some may be privileged or confidential.

3.      Examinations for Discovery

After all documents are exchanged, the parties participate in Examinations for Discovery. An Examination for Discovery typically takes place in a lawyer’s boardroom with a court reporter present to record and transcribe the questions and answers that are given. There is no judge present. During an Examination for Discovery, the other side’s lawyer will question the other party orally and under oath. This enables each side to discover the evidence of the other and enables all parties to obtain information necessary to present their case.

 

4.      Trial

In the trial stage of the litigation, a judge will decide the matter after hearing evidence through witnesses and documents and after argument from all parties. At trial, the Plaintiff gives an opening address to the court outlining what he expects to prove followed by the Plaintiff’s witnesses. The Defendant has an opportunity to cross-examine each of the Plaintiff’s witness. Once the Plaintiff has finished its evidence the Defendant presents its case in the same manner. The court then hears any closing remarks, where each party will summarize their evidence and attempt to reconcile the legal principles with the facts. The judge will then render a final decision.

 

Works consulted

[1] Government of Alberta, Justice and Attorney General, Retrieved May 30, 2010, from http://justice.alberta.ca/programs_services/civil/Pages/process.aspx

 

[2] Alberta Courts, Retrieved May 30, 2010, from http://www.albertacourts.ab.ca

 

[3] FieldLaw, Retrieved May 30, 2010, from http://www.fieldlaw.com

 

[4] Federation of Law Societies of Canada, Retrieved May 30, 2010, from http://www.flsc.ca/

 

 

   

19/05/11