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What Is Litigation?

By Douglas MacAdams Q.C. , MacAdams Law Firm

(This article is intended to provide a very general overview of the civil litigation process in British Columbia. It is not intended to be used as legal advice. There is no substitute for legal advice that takes into consideration the facts that are specific to each case.)

Litigation is defined in Black’s Law Dictionary as “...the process of carrying on a lawsuit”. However, litigation is about more than just the lawsuit. Litigation encompasses: the events that cause a dispute before a lawsuit is started; the lawsuit itself; and the things that happen after the lawsuit is finished. It is a process that can take anywhere from a few weeks to a few years.

Litigation is a general term that refers to legal disputes in criminal and civil legal settings. Criminal matters arise when a person or a company violates a public law. For example, the government (on behalf of all citizens) can charge an accused with a criminal offence if the accused steals a car. Stealing cars is a violation of a criminal law which is a public law imposed on all members of the community. Civil matters generally involve a violation of a private right of a person or of a company. For example, a person can sue a mechanic (or the company the mechanic works for) if the mechanic fails to make the repairs the person paid for or if the repairs made are substandard.

Individuals (including companies) have a right to contract with others for goods and services. Individuals have a right to enjoy the property that they own. These rights are ‘private’ because they belong not to the government but to the individual. The law protects an individual’s private rights by providing for sanctions against those who interfere with those private rights. In the case of repair of a vehicle, the vehicle owner has a private right to receive repairs as promised. If the repairer violates that private right, the vehicle owner may be entitled to compensation from the violator.

One of the differences between public laws and laws protecting private rights is found in how these different kinds of laws are enforced. The government (or a government appointed organization) enforces public laws. Individuals enforce private rights protected by law through the courts.

Criminal matters tend to be disputes between the government and an individual. In Canada in the criminal context we often refer to the government as ‘the Crown’ because we are a constitutional monarchy. In the United States the government in the criminal context is often referred to as ‘the People’ because the U.S. is a republic. Civil matters generally are disputes between individuals such as persons or companies, although it is possible for there to be civil disputes between the government and an individual. It is also possible for an individual to start a civil lawsuit against the government.

There are significant differences between the litigation procedure in criminal disputes and civil disputes. This article will address very generally civil litigation procedures in British Columbia.

Events leading up to the lawsuit

Many litigants (people involved in a lawsuit) get caught up in the litigation process and forget that what a court is going to be looking for is proof of the events that caused or contributed to the lawsuit. ‘Proof’ in litigation terms is called evidence. It is fundamental to the successful prosecution (or defence) of a lawsuit that the litigant (with the help of legal counsel) gather, maintain, and organize all the evidence available to him or her.

Civil lawsuits start with a dispute between individual people or companies. However, the lawsuit itself is not the start of the matter - it is actually the middle. Before the lawsuit was started there were events that gave rise to the dispute that caused the lawsuit.

Before starting a lawsuit it is important to have an understanding of the litigation process. If you are being sued, it is crucial that you very quickly get an idea of how lawsuits work so that you can make important decisions about how you are going to deal with the lawsuit.

A person who is able to gather, maintain, and organize evidence at an early stage of the litigation process has a better chance of settling the dispute early - perhaps even before a lawsuit is started. Of course the benefit to early settlement is reduced financial and emotional cost in the litigation process. Those costs, financial and non-financial, can be significant.

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The Lawsuit

Civil lawsuits are usually disputes over private rights protected by law. One person (or company) complains that another person (or company) has violated a private right and the ‘complainer’ says that the ‘violator’s’ actions have caused some damages. The complainer starts a lawsuit to get compensation from the violator for those damages. Compensation, or damages, is usually in the form of money but can be in the form of an order for transfer of property. In some cases, it is also possible to persuade the court to order an individual or company to do something or to stop doing something.

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Limitation Period

It is difficult to overstate how important it is to be aware of what the limitation period is before a lawsuit is started. A person who starts a lawsuit after the limitation period has expired will likely find the lawsuit dismissed and may even be required to pay the opposing party money to compensate for the expense of defending against a claim started after the deadline.

The law requires that the complainer start the lawsuit within a certain number of months after the event or events that violated the private right. A limitation period is a deadline: if the complainer does not start the lawsuit before the deadline expires, then he or she loses the right to start the lawsuit and to get compensation from the violator. The number of months or years a person has to start a lawsuit depends on the kind of complaint being made against the violator. It is best to get legal advice with respect to what limitation period applies to a specific complaint. In British Columbia, many limitation periods are set out in the Limitation Act.

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Choosing the right court

There are many reasons why it is best to get legal advice before you start your lawsuit even if you plan to self-represent. One reason is to ensure that you start your proceeding in the right way and in the correct court. If you start your lawsuit in the wrong way or in the wrong court, then you will have wasted your time and money, your opponent’s time and money and the court’s time and money. Because it was your mistake, you may be required to pay your opponent’s costs for attending court. However, you will usually not lose your opportunity to start the lawsuit in the proper court.

To start a lawsuit, the complainer will be required to set out in a court document the nature of the claim against the violator and then file that court document with the court registry. In British Columbia a lawsuit is started when the complainer files a court document in the Provincial Court or the Supreme Court of British Columbia. Determining the right court in which to start a lawsuit in requires an understanding of the nature of the lawsuit. Generally speaking, claims of $25,000 or less should be started in the Provincial Court. However, there are some claims that can only be started in the Supreme Court even if the damages claimed are less than $25,000.

Lawsuits are started in Provincial Court and Supreme Court in the same way, although through slightly different procedures. You can find easily accessible information on the Provincial Court at www.smallclaimsbc.ca and on the Supreme Court at www.supremecourtbc.ca.

We will look at the Supreme Court process in this article because the Supreme Court’s litigation procedures are more complex. There are excellent online step by step guides explaining how to start and defend civil claims in the Supreme Court of British Columbia at:http://supremecourtbc.ca/civil/guidebooks.

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Notice of Civil Claim, Response to Civil Claim, and Counterclaim

Before starting a lawsuit or counterclaim, it is crucial that the person carefully consider: 1. What it is the opposing party has done that is against the law; 2.What damages should the court order against the opposing party; and 3. Does the opposing party have assets to pay damages? It is important to keep in mind that the court can only enforce the laws of the land - the court cannot make someone behave in a kind and considerate manner. It is also important to understand that the court cannot put a dollar value on hurt feelings. Unfortunately there is no law against being a mean-spirited or miserable person.

In the Supreme Court of British Columbia, the complainer (or “plaintiff”) starts the lawsuit by filing with the court a Notice of Civil Claim or Petition. These documents set out what the plaintiff says the violator (or “defendant”) has done to violate the plaintiff’s private rights. The plaintiff and defendant together are referred to as opposing parties to the lawsuit.

It is important to stress at this point that the violation must be against the law and it must have caused damages that the court can measure. In other words, there must be a right that the court can enforce. The hard reality is that even if the plaintiff can prove the defendant did something against the law, the plaintiff might not be able to prove that the plaintiff suffered any damages. If the plaintiff cannot measure or prove damages then the plaintiff will likely not be compensated for those damages. It is also important to determine whether or not there is a possibility that the defendant has assets to pay damages if damages can be proven. If the defendant has no assets or lives outside of British Columbia, it may be impossible or may be overly expensive for the plaintiff to collect damages at the end of an expensive and hard-fought litigation.

After the defendant receives the Notice of Civil Claim, the defendant is required to respond with his or her own court document called a Response to Civil Claim. The Response to Civil Claim gives the defendant’s side of the story. If the defendant believes that the plaintiff did some unlawful act that caused the defendant damages then the defendant can file a Counterclaim along with the Response to Civil Claim. The Counterclaim is a document much like the Notice of Civil Claim. The defendant sets out the facts supporting the claim that the plaintiff violated the defendant’s private rights and caused damages. After receiving the Counterclaim, the plaintiff is required to respond with a Response to Counterclaim document.

A list of these and other Supreme Court of British Columbia forms can be found at: www.ag.gov.bc.ca/courts/other/supreme/2010SupRules/info/index_civil.htm.

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Serving the filed Civil Claim Documents

Once the plaintiff has filed the Notice of Civil Claim he or she must cause it to be personally served on the defendant. ‘Service’ means that the court document must be delivered to a party in a specific way. There are rules regarding ‘personal service.’ It is very important that service is performed according to the law to avoid wasted time, money and frustration. One of the services lawyers provide is to hire agents to deliver document and generally to oversee delivery of documents.

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Discovery

Once they have filed with the court and delivered all of the court documents that set out the facts of the dispute, the parties begin the discovery process. The discovery process is essentially a process whereby all of the parties exchange and review the evidence relevant to a case. Documentary discovery is the process which requires the plaintiff and the defendant each to exchange any documents that may be relevant to the lawsuit. ‘Documents’ can be paper documents, emails, audio files, video tapes, or digital files of any kind. Documentary discovery is a very important part of the pre-trial process. If you are a party to a lawsuit, it is important to get legal advice regarding what documents and information you are obligated to give to the other side. In addition, each of the plaintiff and defendant can be examined for discovery. An examination for discovery is a meeting at which one of the parties asks the other questions about the dispute. Usually it is the lawyer of one side asking the opposing party questions. The opposing party’s lawyer will also be there to make sure the lawyer asking questions only asks questions that are relevant to the lawsuit.

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Chambers or ‘Interlocutory’ applications

A Chambers application (sometimes called an interlocutory application) is in many ways a little trial over a specific issue. It is heard in Chambers (a court room). By way of a chambers applications, a party asks the court to resolve before trial some specific aspect of the larger dispute between the parties. For example, it may be that the plaintiff has asked the defendant to produce (give) a particular document to the plaintiff as a part of the discovery process. The plaintiff believes that the document is relevant to the plaintiff’s case and may seek to use it at trial. The defendant, however, does not want to produce the document. The plaintiff may make an interlocutory application to ask the court to decide whether or not the defendant must produce the document.

Chambers applications involve specialized legal documents that the parties must draft and serve on the other parties in the lawsuit. In our document discovery example above, the plaintiff will lead evidence and make a legal argument in support of his or her position that the document ought to be given. The defendant will make arguments which support not producing the document. The court will then decide who is right in law. If the court finds in favour of the plaintiff, the court will order the defendant to give over the document to the plaintiff.

Some lawsuits will have several of these mini-trials before the trial. Some lawsuits will not have any chambers proceedings before the trial.

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The Trial

Trials can be divided into two parts: the evidence phase and the argument phase.

Evidence Phase During the evidence phase, the parties introduce the evidence each says supports its position. The plaintiff goes first. The plaintiff will call witnesses who will give evidence, generally by turning up in court and by answering questions in the presence of a judge.

Examination in Chief: Each of the plaintiff’s witnesses will sit in the witness box near the judge and in response to questions tell the court what they know about the dispute. The questions and answers are recorded and become the testimonial evidence. If the plaintiff is self-represented then the plaintiff will give his or her own evidence in the witness box. When the self-represented plaintiff gives evidence the judge may ask questions to ensure that all the relevant evidence available is before the court. However, it is not the judge’s job to ensure that all of the evidence is introduced. The judge is only required to ensure the evidence that is introduced is admissible and relevant. If the self-represented plaintiff forgets to put some evidence before the court then he or she will be out of luck. Parties cannot go back and add missing evidence during the argument phase. The trial will proceed as if the missing evidence did not exist.

If a self-represented plaintiff has other witnesses then he or she can call those witnesses to the witness box one at a time and ask those witnesses questions. If the plaintiff has a lawyer then the lawyer will ask the plaintiff and the plaintiff’s witnesses the questions which form the basis of the plaintiff’s case.

Cross-examination:

“…you can’t HANDLE the truth!” In television and movies, the cross-examination is the dramatic part of the trial where the guilty party often breaks down under the lawyer’s ferocious line of questioning and admits the truth. Real life is seldom this dramatic. That said, a well planned and executed cross-examination can be devastating to a party’s claim or defence.

A cross-examination is a series of questions that challenge or clarify the testimony given during the examination in chief. Each of the plaintiff’s witnesses are cross-examined immediately after they give their testimony in chief and before the plaintiff calls the next witness. The defendant (if self-represented) or the defendant’s lawyer cross-examines the plaintiff and the plaintiff’s witnesses. When all of the plaintiff’s witnesses have been examined in chief and cross examined, then the plaintiff’s case is closed and the defendant’s case starts. The defendant’s case unfolds in the same way as the plaintiff’s: the defendant’s witnesses will give testimonial evidence in chief and then the plaintiff (or the plaintiff’s lawyer) will have an opportunity to cross-examine.

Argument Phase Once all the parties have presented their evidence, the parties will then make legal arguments in support of their positions. These arguments should be based on the evidence submitted during the evidence phase and should outline how the law applies to the evidence.

A note about jury trials and judge alone trials A trial can be before a judge and jury or before a judge alone. A jury trial is a trial in which a group of citizens consider the evidence, and with the judge’s assistance in interpreting the law, make a decision in the case. In a judge alone trial the judge alone considers the evidence and interprets how the law applies to the facts of the case.

Judgment In a judge and jury trial, after the evidence and argument phases are complete, the jury will pronounce the verdict. In judge alone trials, the judge may give reasons for judgment immediately or the judge may reserve judgment. Generally several months after the end of the trial, the judge who has reserved will release reasons for judgment.

If the plaintiff is successful then the plaintiff will receive a judgment in his or her favour for damages plus costs. Costs refer to legal costs for litigating the lawsuit. Generally the party who lost the lawsuit

It is important to note that costs do not equal all the money you paid to your lawyer. In fact, except for in very rare cases, costs equal between 15 - 20% of what you will have paid to litigate the lawsuit.

must pay to the party that won the lawsuit a contribution to the winning party’s legal expenses. If the plaintiff proves his or her claim then the defendant generally will be required to contribute to the plaintiff’s legal expense. If the plaintiff fails to prove his or her case, then generally the plaintiff must contribute to the defendant’s legal expense.

The court can increase the costs owed to the successful party (for example when one of the parties has behaved badly during the litigation) or order that no costs be paid at all.

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Appeal

If a party believes that a judgment is wrong and that a mistake was made on either the evidence or the interpretation of the law, then that party can appeal the trial court’s decision. The party has a 30-day limitation period for filing an appeal in the British Columbia Court of Appeal. Appeals will of course make the litigation considerably longer and more expensive.

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Getting paid after a successful judgment

As the expression goes “...it ain’t over ‘til it’s over...”. In litigation terms this is translated to: “...the litigation isn’t over until the damages are paid, the costs are paid, and the lawsuit is properly concluded”. The reality is that the process of enforcing a court order can be frustrating and expensive, can require more court appearances, and can take months or years to complete.

Getting a favourable judgment feels great. It is in some sense a vindication that all of the difficulties, disappointments, and the expense of the litigation were endured for good reason.

Depending on the nature and amount of the judgment, the lawsuit can be concluded within a matter of weeks by way of payment of judgments. Collecting on a judgment can, however, take several months or even years. For example, if the court awards the plaintiff damages in a large amount, the defendant may only be able to afford to pay the judgment in monthly instalments over a period of months or years. In such an instance the lawsuit (and the litigation) will not formally end until after the court’s orders have all been satisfied.

If the defendant refuses to pay, then the plaintiff will be forced to take additional steps to enforce the order and get payment. These extra steps can be expensive and can require more appearances in court. It is possible to recover some of the legal costs of these extra legal steps from the defendant.

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Settlement Negotiations

Parties often settle because it gives them some control over the outcome. If the matter goes to trial the court controls the outcome.

Settlement negotiations can take place at any time during the litigation process: that is: before a lawsuit is started; after a lawsuit is started; and (in some cases) after a judgment is made. The purpose of settlement negotiations is to resolve the case before trial. Of the several thousand lawsuits started in British Columbia every year, more than 90% are settled before trial. One reason for this is that litigation is expensive, time consuming, and emotionally difficult. No matter how strong the case, there is no guarantee that a party will succeed and obtain a favourable judgment.

Negotiations are most successful when the parties cooperate with each other despite the fact that they are in a dispute. Cooperation in the litigation sense does not mean opposing parties agree or even like each other. What it does mean is that the parties exchange documents and information without unnecessary delay. If the relevant information - the evidence - is made available promptly, the parties, with the assistance of their lawyers, will be better able to determine the strengths (and weaknesses) of their legal positions. If the parties are reasonable and rational, they will frequently conclude that resolving the dispute before trial makes more sense than continuing with the effort, expense and risk of continuing with litigation.

There is, however, this reality. Not all litigants are reasonable or rational. Some litigants are subject to non-financial considerations, personality disorders, family pressure or other constraints, and cannot or will not settle. In the minority of cases involving such parties, going to trial is frequently the only option available to resolve a litigation. In Canada and in British Columbia, we benefit from honest, skilled, intelligent and diligent judges. Although litigation is expensive, demanding and time consuming, parties to lawsuits in Canada and in British Columbia can be confident of a fair hearing and a fair judgment.

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