Civil Court Proceedings Explained

There are several steps in a civil court action. A "civil action" generally means court proceedings other than criminal law. The information below will not deal specifically with family law proceedings, although some of the information applies to it. Family law has its own special set of rules that will be different from the procedure below.

Different Levels of Court

Provincial Court/Small Claims Court There are different levels of courts in Saskatchewan. The first level of court is called Provincial Court. The Small Claims Court is the same as the Provincial Court. This level of court also deals with initial appearances on all criminal matters. The most serious criminal matters (this is a very simple and inexact description) will typically be moved up to the Court of King's Bench but the others will be dealt with through the Provincial Court. As of February 2016, the Small Claims Court can grant a judgment for up to $50,000.00 plus interest. There are also certain types of actions that the Provincial Court cannot hear, such as a law suit for libel, slander, malicious prosecution, false imprisonment, or a dispute over who has the right to be the registered owner of land, etc.

Court of King's Bench This court is the next level of court above the Provincial Court. It has the power to hear most disputes that ever need to be dealt with. There are only a few exceptions. Examples of court actions that would be dealt with by the King's Bench are lawsuits regarding land or money, Personal Property Security, libel and slander, negligence, insurance claims, etc. This is also the same level of court that grants divorces and deals with property division in family law cases. On the criminal side, it also deals with the more serious offences. If someone is appealing a Small Claims court decision, the King's Bench court hears the appeal.

Court of Appeal If the Court of King's Bench has dealt with a dispute and one side disagrees with the result, an appeal may usually be made to the Court of Appeal. If someone is dissatisfied with a Small Claims/Provincial Court decision, the appeal is heard by the Court of King's Bench. Only decisions appealed from the Court of King's Bench are heard by the Court of Appeal.

Other Specialized Courts There are also other specialized courts such as the Federal Court, Trial Division and the Federal Court of Appeal. If someone is suing to enforce a trademark or patent, for example, or if they are suing the federal government, they may choose to proceed through the Federal Court instead. There are also other courts such as the Tax Court of Canada that this article does not discuss specifically. However, many of the documents and procedures described here apply in general to those courts as well.

Court Documents

Statement of Claim This is the document that most court actions are commenced with. It begins by setting 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. If they do not, judgment can be entered against them without notice. The balance of the document sets out general facts about the claim and then describes the remedy that the person suing is asking for. If someone is served with a Statement of Claim there are only a certain number of days to respond to it by serving a Statement of Defence and filing a copy with the court. If that is not done, the person suing will usually be entitled to judgment without further notice to the Defendant. If a Statement of Defence is served and filed by the Defendant, then there are many steps to be followed before the court can make a decision. Those steps are outlined below.

Statement of Defence If a Statement of Claim is served on a person and they wish to defend the action, they must serve this document on the opposing party and file a copy with the court. This document sets out why they dispute the claim. It may also involve a "Counter-claim", where the defendant asks for judgment against the Plaintiff, a "Third Party Claim" where the defendant asks for a remedy against someone who is not yet part of the court action, or a "Cross-claim" where the defendant asks for a remedy against another defendant in the action.

Affidavit This is the document that the lawyer prepares and a person swears or affirms. It sets out factual information to be presented to the court. This document is used in Chambers hearings because, in Chambers, people generally do not testify in person. Except on rare occasions, affidavits are not used in a trial. In a trial, witnesses must appear in person to testify.

Brief of Law This is a document prepared by each party. It contains legal arguments and refers to related court decisions as well as legislation. In the King's Bench court, each party (or their lawyer) is required to understand the law and present the applicable cases and legislation to the court. The court does not do that for them.

Other Phrases

Rules of Court This is a book of rules that is several inches thick (or a pdf). The rules are made by the Judges of the Court of King's Bench. It sets out the specific procedure and rules of operation that must be followed in any step in a court action. Each party (or their lawyer) is required to understand and follow the procedure. The court does not do that for the parties.

Costs 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. It will only represent a portion of it. In these cases, the costs for each step of the court action taken are set out in a table in the Rules of Court. The amount increases as the amount in dispute in the action increases. Full reimbursement for a legal bill (solicitor-client costs) are rarely awarded by the court. They are only granted in cases, for example, where the court feels one side has been guilty of misconduct during the course of the court proceedings or where there was a document such as a mortgage of land where the borrower agreed to pay the lender's full legal costs if they were in default under the mortgage. Even in these cases, there may be limitations on the costs allowed.

Procedure to get to Trial

New Rules of CourtIf you were familiar with court procedure from several years ago, or if you read older court decisions, it might be important to know that as of July 1 2013, the Rules of Court and Forms were completely re-written. For example, examinations for discovery are now called "Questioning". A process called "Simplified Procedure" no longer exists and instead there is an "Expedited Procedure". It applies to claims up to $100,000.00 that only involve certain types of disputes such as money, land, builders' liens and personal property. It may be an oversimplification but it is designed to make these categories of claims move along a little better and not have the process be even quite as complicated in terms of steps to be taken. There was also a new process for "Summary Judgment" applications which is essentially a trial based on sworn documents instead of witnesses testifying in open court.

Statement of Claim & Statement of Defence Most court actions are commenced by one party serving a Statement of Claim on the other. See the definitions above for this word. If the party being sued wishes to defend the action, they must serve a Statement of Defence on the opposing party and file a copy at court within the time limits. An action will typically only go to trial if the other side is defending. If the person being sued does not defend within the required time, there is usually no need to go to a trial. The court can grant judgment without a trial.

Mediation Once an action is being defended, the action is referred to Mediation Services. Mediation Services is a division of the Saskatchewan Provincial Government. Mediators will arrange a mandatory meeting between all parties and attempt to settle the dispute. No judge is present ... just the parties, their lawyers and a trained mediator. Neither side can be forced to settle but they are required to attend Mediation unless an exemption is granted, which is rare. Anything said at the Mediation meeting is privileged and cannot be used later in court.

Affidavit of Documents Early in the process, each party is entitled to see what relevant documents the other side has. These may be letters, agreements, video tapes, computer records, etc. that are in the possession or control of a party to a court action. In the interest of fairness, each side is required to disclose documents in their possession or control to the side. A few documents, such as communications between a party and their lawyer in the course of the action are privileged and do not need to be released to the other side. If a document is not revealed and the matter eventually proceeds to trial, the party who did not reveal it might be prevented from using it at trial. It is therefore important to follow the rules and provide disclosure as required.

Questioning In order to prepare for Trial, each side also needs to know what the other side will say under oath. In this step, 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. A printed copy (transcript) is then made available to each side for a fee. There are several purposes to examinations for discovery. Examinations are a good opportunity to learn more detail about the facts that the other side is relying upon. Sometimes the questioning process may help result in a settlement because each party understands the other side's position better. They help the lawyer obtain more information to prepare for trial. If the person being examined agrees to a certain fact, that statement can be read in at trial from the transcript instead of calling witnesses to prove the fact. In that sense, it may sometimes help shorten the trial and make it less complicated.

In an action for $100,000.00 or less under the Expedited Procedure there are usually no examinations for discovery. The purpose is to save time and expense. Trial time is usually limited and there are other restrictions to keep the process in perspective given the comparatively lower amount of money at issue.

Undertakings Sometimes, in the Questioning process, a person does not have the required information at hand to answer a question right away. They can then make an "undertaking" to provide an answer later. After the examinations are complete, each side needs to follow up on the undertakings that they have made and answer them in writing.

Chambers Applications: Sometimes there are procedural or other disputes in the course of a court action or there may be intermediate steps that need to be taken in a court action where a court ruling is required. These types of issues can be decided by chambers applications. They can be with notice (2 weeks minimum notice is the usual rule) or where permitted by the rules or by consent, without notice. Sometimes a Chambers Application is made to ask a judge for an interim order preventing parties from doing something in the meantime until the matter is decided later at trial. An example might be to prevent someone from selling property until the true owner or the property in dispute is determined at trial. Some of these applications can be more straight forward. Some can be extremely complex and expensive.

Pre-Trial Conference A Pre-Trial Conference is usually the last step before a trial takes place in the court of King's Bench. Each lawyer and their client is required to appear at court for this meeting. A Judge will be present. The Judge does not make a ruling to decide the case. Instead, the Judge will review the Brief of Law and Fact filed by each lawyer and provide each side with their candid assessment of what they think will happen at trial. As well, the judge will help facilitate settlement discussions between the parties. Reportedly, more than 60% of cases are settled at pre-trial conferences. This saves time, money and the uncertainty of outcome involved in a trial. If the action is not settled at this state, the pre-trial Judge cannot be the trial Judge. Anything said at the pre-trial conference is privileged and cannot be used at trial. In addition to encouraging settlement, the pre-trial Judge will help deal with various procedural issues so that the trial can be run in a more organized manner.

In an action for $100,000.00 or less under the Expedited Procedure there might not be a Pre-Trial Conference. The purpose is to save time and expense.

Trial If the action has not been settled, it will eventually proceed to Trial. Each party will call witnesses to testify in person. The Judge hearing the Trial will then give their judgment. Sometimes the judgment will be made at the end of the trial but more often, the Judge will take notes and documents back to his or her office and provide a written decision later. Depending on the complexity, it may take weeks or months for the Judge to provide a decision.

Expedited Procedure This applies to claims under $100,000.00. As the rules have just changed as I am updating this article, I will eventually provide more detail here.

The Expedited Procedure attempts to get defended actions to trial more quickly and with less cost than a regular action in the Court of King's Bench. However, neither this method nor the regular method are perfect. The expedited procedure sometimes leaves things not presented to the court because compromises have to be made in order to reach a decision in a more quick and cost effective manner. The general procedure allows for more detailed testimony and last minute additions to testimony in a trial, but it can be quite a bit more costly and take even more time to get to trial.

If a person commences an action under the regular procedure for claims over $100,000.00 but they only obtain judgment for less than $100,000.00, the court can penalize that person, even though they won at trial, by ordering costs against them for commencing under the more complex general procedure because of the wasted legal costs incurred.

Appeal If a party is dissatisfied with the Court's decision, they may decide to appeal it. 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. For example, the court will listen to an argument that the law was applied incorrectly by the Trial Judge. However, the Court does not usually hear matters where the complaint is that the judgment appealed from accepts the testimony of one person over another. In those cases, the Court of Appeal will usually say that the Trial Judge was better equipped to make a decision on which version of the facts to accept. The Court of Appeal will usually refuse to change the Trial Judge's findings of fact.

Supreme Court of Canada The final Court of Appeal in Canada is the Supreme Court. Most civil actions will not qualify to be appealed to this level unless the Supreme Court gives special permission to hear it. The rules are too complicated to summarize briefly. However, the procedure involved to take an appeal to the Supreme Court of Canada is extremely technical, time intensive and expensive. This highest level of court does not have time to hear every dissatisfied litigant who may have lost at the Court of Appeal level. For that reason, may requests to appeal will not be heard unless the Supreme Court of Canada considers the issues to be of national importance. Most court actions end either at the Court of King's Bench or the Court of Appeal and are not pursued further.

Whose Responsibility is it to Administer the Action?

In Small Claims court, the judge expects the parties to present the facts. The judge does not expect non-lawyers to know the law or procedure. In the Court of King's Bench, it is the responsibility of the parties, not the court, to know the and present the law, understand the procedure and take all steps necessary to see an action to its end. In the King's Bench court, it is the responsibility of each party to prepare all documents and arrange for each step to take place in the action. The Court does not initiate any steps on its own. In Federal Court, the court registrar and prothonotary assigned to the action will set deadlines to take each step, but most court actions don't go through Federal Court.

Legal Costs

Unfortunately, court actions are very expensive. They require a great deal of skill and knowledge of the lawyer. The standards the court expects from a lawyer in the court process are very high. Most people seriously underestimate the cost, time and effort on their own part as well as effort from their lawyer that is necessary to pursue or defend a legal action.