Guide to Litigation – Disputes, Mediation and Trial

Justice Gavel
Law AreaDisputes, Mediation, Civil Litigation
LawyerCourtney AuBuchon
TimelineMonths to Years
BC Supreme Court and Court of Appeal trial lawyer.

What to expect in ligitation

This page provides some general information about the litigation process in British Columbia. It is not legal advice and parts may not be relevant to your claim. If you intend to start a lawsuit or have been named in a lawsuit you should contact a lawyer to get legal advice specific to your issues. 

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Litigation
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Initial review and investigation

Before a lawsuit is started a thorough review of the facts and evidence should be performed to ensure that the claim is being made or defended correctly. 

  • Collect and Review Documents
  • Identify Witnesses
  • Identify Defendant(s)In some cases there might be more than one possibility. For example, should the defendant be a person, or their business? Are there more than one defendants?
  • Consider Issues with Recovering JudgmentWinning a lawsuit does not necessarily mean that you will be paid. In some cases the defendant(s) will have nothing for you to obtain, or may declare bankruptcy after you win. It can be difficult to determine the issues you may encounter. Particular consideration should be given when suing a corporation that may not hold any assets and can stop doing business once the lawsuit has started.

Starting a Lawsuit

A lawsuit commences by submitting a legal document known as a Notice of Civil Claim (NOCC) at the Supreme Court Registry. In the NOCC, the individual or individuals starting the claim will be identified as the plaintiff(s), while the individual or individuals potentially responsible for their losses or injuries will be referred to as the defendant(s). The defendant typically files a Response to Civil Claim (RCC), and the NOCC and RCC together are known as the “pleadings” in the case. Throughout the litigation process, other formal court documents may be exchanged between the parties involved

  • Notice of Civil Claim is FiledThe Notice of Civil Claim sets out the facts to support the claim, the relief being sought (what the plaintiff wants from the defendant) and the legal basis for the claim. Once filed the Notice of Civil Claim must be served on the defendant(s)
  • Response to Civil Claim is FiledIn most cases the defendant(s) has 21 days to respond to the Notice of Civil Claim after being served. This can be extended by agreement of the parties.
  • CounterclaimsThe defendant(s) may file a counterclaim seeking compensation from the plaintiff(s) for a claim they have against the plaintiff. In some cases, the counterclaim seeks more than what is sought in the Notice of Civil Claim. For instance, if a plaintiff sues a defendant for breach of contract, the defendant may counterclaim, asserting that the plaintiff also breached the contract or committed some other legal wrong. The court would then consider both the original claim and the counterclaim in reaching a comprehensive judgment.
  • Third Party ClaimIf the defendant (or plaintiff who has received a countclaim) believes that another person, company, or organization is wholly or partly responsible for the claim being made against them, the defendant can file a third-party claim. A third-party claim within 42 days after the defendant is served with the Notice of Civil Claim or a Counterclaim. After that, it can only be filed with leave (permission) of court, which must be obtained by making a court application.

Discovery of Documents

After the completion of the exchange of pleadings, which usually takes several weeks or even longer, all parties involved are obligated to produce a list of all documents in their possession or control that are relevant to the case. It is important to provide your lawyer with all documents early so that they can properly prepare your case. Your lawyer will determine what is relevant to the case and what is not and you are better to provide all documents, even if you do not think that they are important. 

  • Plans, contracts and agreementsWhat documents were the parties relying on or governed by?
  • CommunicationsIncluding letters, emails, and text messages.
  • Notes, memos, diaries. Any documents made that record the events that relate to the dispute

Examination for Discovery

An Examination for Discovery is an oral pre-trial examination under oath of each of the parties to the action. The Examination for Discovery does not involve a judge and does not take place in a courtroom. It is usually held at either a Court Reporter’s Office or in the boardroom of one of the lawyers’ offices.

Your examination for discovery evidence will form the basis for your evidence at trial. Therefore, it is important that your evidence is accurate and complete. For example, if you say that you are unable to remember some evidence that supports your position, you may not be able to rely on it later at trial. Additionally, if your evidence changes between the examination for discovery and the trial, this can be used by the opposing party to challenge your credibility. For these reasons, it is important that you review documents and records to refresh your memory before the examination for discovery.  

  • Take it seriouslyReview your documents before your discovery. Prepare a timeline of dates if that will help you.
  • Tell the truth
  • Answer Questions Completely
  • Only answer the question that was asked
  • Answer with clear and unambiguous responses
  • Don't worry that you don't knowThe lawyer examining can request additional information.
  • Correct any mistakes you make
  • Try not to get upset or be combative

Your behavior at an examination for discovery is very important. You should answer the questions asked by the opposing lawyer truthfully and not get involved in verbal arguments or give sarcastic replies. The other lawyer will be required to treat you with respect, and you should treat her or him them similarly, even if you do not like the lawyer. You should not guess at answers. If you do not know the answer to any question, you should say so and should not make any guesses. If you later remember the answer to a question that was asked, your lawyer can provide this later. It is your lawyer’s job to make sure that the other lawyer does not ask you any improper questions. Occasionally, your lawyer may object to a question that is asked. You should not answer a question that your lawyer has objected to.   

Settlement Negotiations

During the life of your file, your lawyer review with you the evidence available and give you our best opinion as to a reasonable and satisfactory settlement of your claim. When you are ready to make an offer your lawyer will prepare a settlement letter to the opposing party, indicating the figure at which you are prepared to settle for. That figure may be accepted by the opposing party or some counterproposal might be made. You should be aware that if a counterproposal is made, it terminates any preceding offer.  

While a great majority of lawsuits are settled before trial, many cases are not resolved until a week or even a few days before the trial itself. 

Trials are an uncertain process, and it is never possible for your lawyer to guarantee success or how much money you will receive if the matter goes to trial. All your lawyer can do is provide you with legal opinion based on their previous experiences and existing case law involving other cases like yours. You should consider this when deciding on your settlement position. 

  • Mediation
  • Formal offer to settle
  • Consider the cost of trial

Trial Procedure

Trials are extremely complicated. Each trial will be different but will follow the following structure. 

  • Opening StatementAt the very beginning of the trial, your lawyer tell the court briefly what the case is all about and what proof you will be presenting.
  • WitnessesYour lawyer will call your witnesses to come forward into the witness box to answer questions about the case. You are likely to be the first witness to be called. After your lawyer has finished asking questions of a witness, the opposing party's lawyer then has the right to question those witnesses; (this is called “cross-examination”). The lawyer performing cross-examination will be trying to undermine and poke holes in the answers just given by that witness.
  • Opinion & expert evidenceOpinion evidence is not admissible in a trial except in very specific circumstances. At a trial, you may only give evidence of what you have observed, without providing any inferences or conclusions you have drawn from such observations. For matters that require specialized knowledge, an expert witness must be retained to explain their observations and conclusions to the judge. Expert witnesses must be impartial and have a duty to give fair, objective, and non-partisan opinion evidence. If they are not able to do this, then their evidence may not be admitted.
  • Closing arguementAfter all the witnesses have given their evidence, the lawyers will make final arguments on behalf of their respective clients. This step involves using the answers given by the witnesses, as well as referring to previous cases (called precedents) to try and convince the court to find in their client's favour.
  • JudgmentThe judge will typically “reserve” her/his decision, meaning that s/he will go away and take her/his time to think about all the evidence and make the decision. Often it takes several weeks, or even months to receive a decision. Very occasionally, a judge may give a decision the same day.

Summary Trial

A summary trial in British Columbia is a legal proceeding that provides a faster and more streamlined method of resolving certain types of civil disputes. Summary trials rely on evidence provided in affidavits and witnesses to not appear in court. It is designed to be more expeditious and cost-effective than a full trial and is governed by the British Columbia Rules of Court. Summary trials are typically used for cases where the issues are straightforward, the facts are not in dispute, and a full trial is deemed unnecessary.

  • SuitabilitySummary trials are generally suitable for cases in which there are no significant differences in the evidence of the parties and there is no genuine issue requiring a trial. They are commonly used for claims that involve relatively straightforward factual issues.
  • AffidavitsThe parties typically submit sworn affidavits containing the evidence they intend to rely on. These affidavits present the facts and any supporting documents relevant to the case.
  • Legal argumentsThe parties present legal arguments based on the evidence in their affidavits. This allows the court to determine whether there is a genuine issue that requires a full trial or if the matter can be resolved summarily.
  • DecisionAfter considering the written evidence and legal arguments and determining that the matter is suitable for summary trial, the judge makes a decision on the issues in dispute. The judge may grant judgment in favor of one party, dismiss the claim, or make other appropriate orders.

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    Supreme Court Civil Rules

    The Supreme Court Civil Rules govern the court process in British Columbia. It is an essential starting point for understanding the BC litigation process.

    Appeals

    Decisions of the British Columbia Supreme Court and be appealed to the British Columbia Court of Appeal. Appeals must be filed within 30 days of the decision so it is important to act quickly.

    Costs

    British Columbia has a loser pays system for litigation. This means that the unsuccessful party will usually have to pay a portion of the successful party’s legal fees. Typically, an award of costs is significantly less than what the successful party will have paid in legal fees however.