If you are involved in a legal dispute in Ontario, it helps to know roughly what's ahead. Civil litigation can move slowly, and it looks very different depending on the size and complexity of the claim, but the overall process is fairly consistent. Here is an outline of the major stages.
1. Before the Claim Is Filed
Most disputes don’t go straight to a lawsuit. There’s often a demand letter, a period of negotiation, or an attempt at informal resolution first. This stage matters for a few reasons:
- Limitation periods. In Ontario, most claims must be started within two years of the date the claim was (or reasonably should have been) discovered, under the Limitations Act, 2002. If you miss that window, you may lose the right to sue entirely, regardless of the strength of your claim. Some claims have different limitation periods, so this should never be assumed.
- Choosing the right court. Ontario has three tracks for civil claims, and picking the right one affects cost, speed, and procedure:
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- Small Claims Court – monetary claims up to $50,000.
- Superior Court of Justice Simplified Procedure – claims from $50,000 to $200,000, with capped discovery and a streamlined process.
- Superior Court of Justice Ordinary Procedure – claims over $200,000, or claims seeking non-monetary relief like an injunction, where full discovery and a longer process apply.
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2. Starting the Claim: Pleadings
The plaintiff starts the action by issuing a Statement of Claim, which sets out who is being sued, what happened, and what is being sought. This is filed with the court and then must be formally served on the defendant, generally within six months of issuance if the defendant is in Ontario.
The defendant then has a set window to respond, typically 20 or 30 days if served in Ontario, longer if served elsewhere. The defendant can:
- File a Statement of Defence, disputing some or all of the claim;
- File a Defence and Counterclaim, disputing the claim and asserting their own claim back against the plaintiff; or
- Do nothing, in which case the plaintiff can note the defendant in default, a step that can lead to default judgment without a trial.
The plaintiff may then file a Reply if needed to respond to new issues raised in the defence.
3. Discovery
Once pleadings close, both sides exchange relevant documents and information. This stage looks different depending on the track:
- Affidavit of Documents – each party swears a document listing all relevant materials in their possession, including anything unhelpful to their own case.
- Examinations for Discovery – each party (or a representative, for a corporation) is questioned under oath by the opposing lawyer, out of court, to pin down the facts, test the story, and narrow the issues before trial. Simplified Procedure limits this to a set number of hours. Ordinary Procedure allows longer, more extensive discovery.
Discovery is often where cases are genuinely won or lost – inconsistencies are exposed, weak claims become clear, you obtain a better understanding of the other side’s case, and settlement positions shift accordingly.
4. Mediation
In Toronto, Ottawa, and the County of Essex (Windsor), most civil actions are subject to the Ontario Mandatory Mediation Program under Rule 24.1. The parties must attend mediation with a neutral third party, in an attempt to settle before trial. Outside those regions, mediation is not mandatory but is still commonly pursued voluntarily, since the majority of civil cases in Ontario ultimately settle rather than proceed to a full trial.
5. Motions
At various points, either side can bring a motion, which is a request asking a judge or associate judge to decide a specific issue before trial. Common examples include:
- Motions to compel better answers on discovery;
- Motions to strike out part of a pleading;
- Summary judgment motions, asking the court to decide the case (or part of it) without a full trial, where there's no genuine issue requiring one; and
- Motions about procedural matters, such as adding a party or amending a pleading.
Some cases involve no motions at all. Others involve several, depending on how contentious the issues are.
6. Pre-Trial Conference
Before a case is set down for trial, the parties typically attend a pre-trial conference with a judge. This is a chance to narrow the issues, discuss settlement, and obtain a judge’s informal read on the strengths and weaknesses of each side’s case. Many cases settle at or shortly after this stage, once both sides have a clearer, more realistic picture of their odds.
7. Trial
If the case does not settle, it proceeds to trial, where each side presents evidence and witnesses, and the judge (or possibly a jury) decides the outcome. Trials can range from a single day to several weeks depending on complexity. Simplified Procedure actions are capped at five days.
8. Judgment and Costs
After trial, the judge issues a judgment, deciding who wins and what remedy applies. That could be an award of damages, an order requiring specific action, a declaration, or some combination of remedies. Ontario generally follows a “loser pays” approach to costs, meaning the unsuccessful party is usually ordered to pay a portion of the successful party's legal costs (typically 50%-60% of the party’s actual costs, but a trial judge has wide discretion to assess costs). This costs exposure can be an important factor in settlement decisions throughout the case, not just at the end.
9. Appeal
A party who disagrees with the outcome may have a right to appeal, depending on the amount involved and the court that decided the case. Appeals are decided on the existing record. New evidence or witnesses are usually not permitted, and the focus is on whether the lower court made a legal or significant factual error, not on retrying the case from scratch. Appeal timelines are short and strictly enforced, often as little as 15 days from the date of the judgment.
10. Enforcement
Obtaining a judgment does not automatically produce payment. If the losing party does not pay voluntarily, the successful party may need to take further steps to enforce the judgment, such garnishing wages or bank accounts, registering a lien against property, or seizing and selling assets through a court enforcement officer.
The Bigger Picture
Very few cases move through every one of these stages in a straight line to trial. The large majority resolve earlier, through negotiation, mediation, or a motion, once both sides have a realistic sense of the risks, costs, and likely outcome. Understanding the stages ahead is less about predicting exactly how your case will unfold, and more about knowing what to expect, what deadlines matter, and where the natural opportunities to resolve the dispute tend to arise.
This post is general information about the Ontario civil litigation process and is not legal advice. Every case is different, and the applicable procedure, deadlines, and strategy depend on the specific facts involved. Contact Iain MacKinnon to discuss your situation.