By Chris Wullum
The decision to pursue a civil litigation lawsuit should only be done after careful consideration of the merits and risks involved and receiving legal advice on your options. Commencing the litigation process usually starts with the filing of a court document that names the parties to the lawsuit. Within this document, the parties that are bringing the claim and seeking certain relief or damages are known as the “plaintiffs”, and the parties being sued and contesting the claim for relief or damages are known as the “defendants”.
This document will set out the basic allegations, or material facts, of what occurred, as well as the legal basis for the claim, often described as the cause of action. It will further provide a description of the types of damages being sought by the plaintiff against the defendant. This initiating document is referred to in Manitoba as a Statement of Claim or in some instances a Notice of Application.
After the initiating document is filed at the Court of Queen’s Bench of Manitoba, it is then served on each defendant named in the claim. The defendants will then have a period of time, which is specified by the Court of Queen’s Bench Rules or as otherwise may be agreed upon by the parties, to file with the Court a written response to the claim in a document known in Manitoba as a Statement of Defence. Similar to the Claim, this defence or response will set out the basic responses of the defendants to the allegations made by the plaintiffs in their claim.
The claim and defence are also known as “pleadings”. Once defences or responses are filed by the defendants and any replies to the defences are filed by the plaintiffs, the Court under its Rules will consider the pleadings to be ‘closed’. At this point, the pleadings stage of the litigation process will have been completed, subject to any party seeking to amend their claim or defence which can occur with the approval of the Court or on consent of the parties.
Once pleadings are closed, the next usual step in the litigation process is referred to as the discovery stage. The purpose of this stage is to allow the parties in the case to obtain a greater understanding of the facts and details of the opposing party’s case through the disclosure and “discovery” of documents and testimony. This allows each side the opportunity to better understand and assess the opposing side’s case, to know what case they must answer to at a trial, and to promote the possibility of settlement through the disclosing of evidence.
There are generally two parts to the discovery stage in a civil litigation proceeding in Manitoba, although depending on the specific type of claim and amount of claim, there can be slight differences to this process. The first stage generally involves documentary discovery in which the parties compile a list of all of the relevant documents that they have in their possession, power or control. This list of documents is usually referred to in Manitoba as an Affidavit of Documents as the party will attach their lists of documents to a sworn Affidavit confirming that the list is a full and proper description of all such documents in their possession, power, or control. Most relevant documents would need to be disclosed to the other side in the process, but there are certain exceptions at law generally related to what are known as “privileged” documents.
The second aspect of the discovery stage in Manitoba is known as examinations for discovery. Examinations for discovery can be an important part of most lawsuits. It is part of the discovery stage in which the lawyers may ask questions and seek answers under oath from the opposing parties to the case. This questioning by counsel is typically done in a board or meeting room with a court reporter or stenographer present to transcribe the questions asked by counsel and answers given by the party. Counsel for the party being examined is present with their client and has the right to object to any questions asked by opposing counsel that are irrelevant or otherwise inappropriate for discovery. This step is not done in front of a Judge and as a result usually occurs in a slightly more informal manner than how evidence might be taken at a trial.
The purpose of an examination for discovery is to allow each party to better understand the evidence of the opposing party’s case and to seek admissions of facts and evidence relevant to the case. An examination for discovery can take several hours or even days depending on the facts and complexity of the case.
The examinations for discovery are an important step in the litigation process as it is an opportunity for each side to learn many specific factual details of the opposing side’s case. It allows counsel to further assess the evidence of the case and even permits them to assess how the person being examined may present as a witness at trial. It aids counsel for the parties in assessing the relative strengths and weaknesses of the claim or defence, and therefore can play an important part in influencing settlement of a case.
Generally, once the discovery stage is complete, the next step in the litigation process is for counsel for the parties to schedule a meeting with a Judge from the Court to discuss the status of the litigation at what is known as a pre-trial conference.
The Judge at such a conference will discuss the issues and facts of the case with counsel often with a view to determining if there is any possibility of a settlement to the case or if the case needs to proceed to a trial to be decided. In Manitoba, trial dates are now scheduled at the first pre-trial conference and are generally scheduled within 12 – 14 months from the date of the pre-trial conference.
A trial is the formal court proceeding where evidence, both documentary and oral testimony from witnesses, is presented to a Judge who will then make a decision of whether the claim succeeds or is dismissed, and if so, what relief or damages should be granted, if any. The length of a trial can vary depending on the nature of the case and its complexity. Some trials may only take a few days while others can be scheduled for weeks.
In rendering a decision, the Judge may sometimes “reserve judgment” and take weeks or sometimes months to make a decision on the case. The Judge will sometimes issue his or her decision orally in Court or more often by way of written reasons that detail the basis for the decision, including the facts and legal arguments that were accepted and relied upon by the Judge in reaching that decision.
In some instances, the decision of the Judge following trial may still not be the end of the litigation process. The unsuccessful party has the ability to appeal the decision of the trial Judge to the Manitoba Court of Appeal. The appeal process is much more limited than a trial and is based only on the evidence presented at the trial. The grounds to appeal a trial decision are generally limited to errors of law committed by the trial Judge or significant errors in interpreting the evidence at trial, often expressed as palpable and overriding error.
An appeal is usually heard by a panel of three Appellate Judges from the Court of Appeal and the hearing consists of legal argument by counsel. Generally, no new evidence or testimony is permitted to be given on an appeal, unless special permission is granted by the Court.
Again the Appellate Judges will consider the argument on appeal and give a decision on whether the trial Judge’s decision stands or if the appeal is allowed and the trial Judge’s decision is overturned. Similar to a trial Judge, the Appeal Court will often reserve decision with the Court providing written reasons for its decision several weeks or months after the appeal hearing.
From a Court of Appeal decision, an unsuccessful party’s only means of further challenge to the decision is to seek leave to appeal to the Supreme Court of Canada, the highest level of court in our country. It is only in rare cases that the Supreme Court of Canada grants leave for appeal as it generally only hears a limited number of cases and looks to consider issues that may be of general or wider public importance.
It is important to note, that there are now other variations and possible options on how a civil litigation case can proceed in Manitoba under recently amended Court Rules. A discussion of these new options and some of the changes to the Manitoba Court of Queen’s Bench Rules will follow in subsequent articles.