DRAFT cover letters to accompany the Statements of Claim that will be filed with Court of Queen’s Bench:
- Laliberte v. McKercher LLP
- Laliberte v. Liberal Party of Canada
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INFORMATION ON STATEMENTS OF CLAIM
Statement of Claim:
To initiate an action a “Statement of Claim” is prepared by the “Plaintiff”. A plaintiff, also known as a claimant or complainant, is the party who initiates a lawsuit (also known as an action) before a court. By doing so, the plaintiff seeks a legal remedy, and if successful, the court will issue judgment in favor of the plaintiff and make the appropriate court order (eg. an order for damages).
The Statement of Claim is a legal statement made to alert the Defendant of the legal allegations made against him/her or it. A defendant is any party who is required to answer the complaint of a plaintiff in a civil lawsuit before a court.
The Statement of Claim sets out who the parties are and contains a warning statement to the person being served, advising them that they have a limited time to respond to the claim. The general facts about what are claimed by the Plaintiff and the “remedy” is set out in the Statement of Claim.
Once the Statement of Defence is filed, the action is referred to Mediation Services. Mediation Services is a division of the Saskatchewan Provincial Government known as the Dispute Resolution Office. Mediation is mandatory. At mediation no judge is present. The Mediator, the parties and their respective lawyers attend in order to determine whether or not settlement can be reached with regard to the issues. Anything said at the Mediation meeting is privileged and cannot be used later in court.
Statement of Documents:
In fairness, and in order to prepare for trial, and to help enable the ends of justice, the rules of court require that each party disclose to the full extent of the party’s knowledge, all documents relating to any matter in issue in the action, that are, or have been, in the party’s possession, control or power. These documents may include letters, agreements, videotapes, computer records, etc. Some documents do not have to be disclosed. These may include communications, which are subject to solicitor/ client privilege.
A Statement of Documents lists all of the documents in a respective parties possession or control. If a document is not revealed and the matter eventually proceeds to trial, the party who did not reveal it may be prevented from using it at trial or may be deemed dishonest. It is therefore of the utmost importance to follow the rules regarding disclosure and to provide disclosure as required. In order for your lawyer to properly act on your behalf, you must be completely honest and tell him/her everything so that they can do their job.
Notice of Motion:
Sometimes there are procedural disputes before trial. An example might be a dispute about whether or not a document is subject to solicitor/client privilege. These disputes can be resolved by way of a chambers motion. The party who is dissatisfied with the conduct of the proceedings may bring a Notice of Motion, which is essentially an appointment with a Judge, wherein, the counsel for the Defendant and Plaintiff may speak and a Judge decides how to proceed.
Affidavit(s) and a Brief of Law accompany the Notice of Motion. An Affidavit is a document wherein a person swears or affirms the contents and facts stated. It sets out factual information to be presented to the court. This document is used in Chambers hearings because, people generally do not testify in person.
A Brief of Law is a document usually prepared by each party’s lawyer. It contains legal arguments and refers to related court decisions (“case law”) and applicable legislation.
Examinations for Discovery:
The Examinations for Discovery are proceedings wherein each side attends with their lawyer at a court reporter’s office. There is no Judge present. Each lawyer is allowed to ask the other party questions under oath about the dispute. The questions and answers are recorded by a court reporter and the answers can be used at trail. A printed copy (called the “transcript”) is provided each side. The statements that are made by the person being examined can be “read in” at trial from the transcript instead of calling witnesses to prove a fact.
This process helps facilitate preparation for Trial. Examinations allow the parties to learn in more detail the facts that the other side is relying upon. It also sometimes results in a settlement because each party understands the other side’s position better.
If an action is for $50,000.00 or less and it is under Simplified Procedure, there are usually no examinations for discovery.
At an examination for discovery, where a person does not know the answer, they maybe asked to make an undertaking to provide an answer later. After the examinations are complete, each side is required to comply with the undertakings they made during the examinations for discovery and answer them in writing.
At the Pre-Trial Conference the parties and their counsel are required to appear at court for this meeting. Counsel is required to prepare a pre-trial brief, which outlines the facts and their case law. A Judge is present and prior to the pre-trial will review the pre-trial brief filed by each lawyer. The Judge provides each side with his/her realistic assessment of what they think will happen at trial. As such, the judge can help facilitate settlement. Like Mediation, anything said at the pre-trial conference is privileged and cannot be used at trial.
The Pre-Trial Conference is one last attempt at trying to resolve the matters before proceeding to trial in an effort to save time, money and the uncertainty of outcome involved in a trial.
If the matter does not settle at Pre-Trial, the pre-trial Judge will not be the trial Judge. Where an action is for $50,000.00 or less and brought under the Simplified Procedure there is no Pre-Trial Conference.
The Big Day: Trial
If you have made it this far, you are likely now on a first name basis with your lawyer.
At trial each party will call witnesses to testify. The Judge will hear the witnesses, assess their credibility, listen to counsels submissions, will review all the pleadings and case law and will then give their judgment. The judgment is often “reserved” which means that a written decision will be provided days, weeks, or months later depending on the complexity of the case.
Simplified procedure is an alternative and arguably less expensive legal proceeding for a civil action at Queen’s Bench where the claim valued at $50,000.00 or less. Usually Examinations for discovery do not take place and a pre-trial conference does not take place at all.
Trials may be heard by way of affidavit evidence in chambers if the facts are not in dispute. If facts are in dispute, the court might choose to hear some witnesses testify in person, but there is a time limit on the length of each person’s evidence. This procedure is still relatively complex and requires a great deal of preparation and effort by each party.
Civil litigation is expensive. If an action goes all the way to trial a party may be looking at up to $20,000.00 in legal fees alone. In most court actions, the unsuccessful party is ordered to pay costs to the successful side. The costs will usually not be the full legal bill incurred by the successful party. The costs awarded are set out in a chart that correlates to specific tasks done over the course of the litigation with the amount of the claim. Therefore, if a party is awarded costs, it will likely only represent a portion of the actual legal fees.
Other Aspects of Civil Litigation:
Just because a decision has been made at trial, does not mean it is over. If a party is dissatisfied with the Court’s decision, they may decide to appeal it to the Saskatchewan Court of Appeal. An appeal involves lengthy and complicated documents, including a “factum” which contains the main legal argument. A great deal of work is required by a lawyer to prepare for the Court of Appeal. Hearings before this court usually involve three Judges rather than one. Only certain types of issues can be raised with the Court of Appeal.
If a party is unsatisfied with the outcome at the Saskatchewan Court of Appeal, a party can appeal a decision of the Saskatchewan Court of Appeal to the Supreme Court of Canada (“S.C.C.”). The S.C.C. is the final and last Court of Appeal in Canada.
However, it is important to note that most civil actions will not qualify to be appealed to this level and will not be heard unless the Supreme Court grants its permission to hear it. The rules and procedure involved to take an appeal to the Supreme Court of Canada is extremely technical, time intensive and expensive. For that reason, most court actions end either at the Court of Queen’s Bench or the Court of Appeal and are not pursued further.