COMMENCING LITIGATION IN ONTARIO AND KNOWING WHERE TO DO IT

Although Casey & Moss’s offices are in downtown Toronto, we represent clients throughout the province of Ontario (not to mention clients who live outside Ontario and abroad).

When a client first retains us to respond to or to start litigation, they often ask what Ontario city the litigation is going to proceed in. This is especially true if the client, the other parties, the incapable person, or the deceased’s assets are located in different cities across Ontario.

There are several considerations that go into a decision about where to start litigation in Ontario.

First, if our client has been brought into an already-ongoing court proceeding as a respondent or a defendant, we will generally agree to the jurisdiction of the litigation selected by the applicant or plaintiff. Most court appearances and hearings under an hour long continue to take place over Zoom. As a result, it is just as easy for us to appear in court in Toronto, Kingston, or Thunder Bay. We no longer have to travel to courthouses outside Toronto, unless we are appearing on long motions, application hearings, or trials. Mediations and cross-examinations can also take place remotely, especially if parties and lawyers are based in difference cities around the province. This makes it easy and cost-effective for us to represent clients involved in litigation outside Toronto.

If our client is commencing litigation, several considerations come into play when choosing where to bring the proceeding.

The Rules of Civil Procedure say that if there is no statute or rule requiring a proceeding to be commenced in a particular county, then the proceeding may be commenced at any court office in any county named in the originating process.

We often recommend that our clients start litigation in Toronto, even if they or the other parties aren’t located in Toronto, because Toronto is home to the Superior Court of Justice Estates list.

The Estates List is a specialized court in Toronto comprised of judges who hear proceedings exclusively involving issues of estate, trust and capacity law. Currently, there are four judges sitting on the Estates List. Each of these judges has extensive experience with estate litigation. The judges not only have familiarity with these types of proceedings, but court procedure on the Estates List is tailor-made for estate litigation. For example, we can book 15-minute scheduling appointments before an Estates List judge so that we can quickly and inexpensively get orders for production of documents like medical records, which is frequently one of the first steps in estate litigation. Another factor is that there is mandatory mediation for estate matters in Toronto, which can mean earlier settlement discussions and chances for resolution.

In our experience, if we bring a proceeding on the Estates List in Toronto, counsel in other cities rarely object or seek to have the proceeding transferred to a different courthouse. This is because of the expertise and efficiency of the Toronto Estates List, as well as the fact that counsel outside Toronto don’t have to travel to Toronto to attend in-person scheduling appointments, case conferences, short hearings, or mediations. All of this can be done over Zoom.

The decision about where to start litigation is something we discuss early on with our clients and is a decision we make together, based on what we think will be most efficient and cost-effective.

 

Cara Zacks

Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.

PROCEDURAL STEPS ON COMMENCING AN APPLICATION WITH THE TORONTO ESTATES LIST

The Superior Court of Justice is one of the busiest courts in the world, so commencing a court application can be intimidating and confusing to people who are not familiar with the procedures of the court. The Toronto Estates List is a branch of the Superior Court of Justice which hears matters such as will challenges, passing of accounts, and guardianship applications (just to name a few). Below you will find the simplified steps of commencing a court application with the Toronto Estates List:

 

  1. DRAFT YOUR MATERIALS

Your application materials will consist of a Notice of Application along with an Affidavit and together these two documents will form your application record. The Notice of Application will set out the grounds of the application and the relief that you are seeking. The applicant of the proceeding will swear their own Affidavit which details the facts of the case. A lawyer will usually draft these materials for you, but if you are self-represented it is your responsibility to draft your materials as you will need to serve them on the opposing party. Your application record will also be relied on by a Judge when your matter goes to court.

 

  1. ISSUE YOUR NOTICE OF APPLICATION

Now that your materials are finished – you can have your Notice of Application issued with the court. Your Notice of Application can be issued electronically via the Justice Services Online website which can be found here. If your materials are successfully accepted by the court, you will receive an email confirmation enclosing the issued copy of the Application which includes the court stamp and court file number.

 

  1. SERVE AND FILE YOUR MATERIALS

Now it is time to serve your materials on the Respondent(s). A Notice of Application is an originating process, meaning that you are required to serve the Respondents by personal service as stated in Rule 16.01 (1) of the Rules of Civil Procedure. After serving all the Respondents, you will need to have your Affidavit of Service drafted, sworn, and commissioned. Keep in mind, all materials that are served must be filed in accordance with the deadlines set out in the Rules of Civil Procedure.

 

  1. REQUEST YOUR FIRST COURT APPEARANCE

You may now request a hearing date with the court! In Toronto, you will usually have to attend a scheduling appointment prior to a hearing. This court appearance will generally only deal with procedural issues such as scheduling and timetabling. To request a scheduling appointment, you should email the trial coordinator and submit your request form which will include several dates that the court can set your scheduling appointment for. The trial coordinator will then confirm the date of your first court appearance, and you are all set to go!

 

Please keep in mind that the court rules are subject to change at any time. It is best practice to review the Practice Directions before going to court. You may access Toronto’s Practice Directions by clicking here.

 

Stacie Chrysanthopoulos

 

Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.