Mortgage Broker is the magazine of the Canadian Mortgage Brokers Association and showcases the multi-billion dollar mortgage-broking industry to all levels of government, associated organizations and other interested individuals.
Issue link: http://digital.canadawide.com/i/354755
46 | summer 2014 mbabc.ca MORTGAGEBROKER legalprocess served on an individual defendant by leaving a copy of the document with the person being served. If the defendant is a company, the notice of civil claim can be served by leaving the document with the president of the company or by mailing a copy to the company's registered and records office. If you are served with a notice of civil claim and you have insurance that may apply, you should immediately notify your insurance broker of the claim and provide them with a copy of the documents you received. Replying to a notice of civil claim A defendant has 21 days from the date of service of the notice of civil claim to file a response to civil claim. Similar to the provincial court process, there is a standard form response to civil claim that must be completed. If a response is not filed within the 21 days, default judgment may be taken against you. If, as a defendant, you want to advance a claim against the plaintiff, you can file a counterclaim at the time you file your response to civil claim. If you think someone else should pay the claim, you can file a third party notice setting out why you think the third party should pay the claim. Document production Within 35 days aer all the initial court documents are filed, the parties must exchange lists of documents. You must disclose all documents in your possession or control that can be used by any party in the litigation to prove or disprove a material fact. You must also disclose any other documents you want to rely on at trial. e idea of pulling out a "smoking gun" at trial that nobody knows about only happens on Suits and e Good Wife. Examinations for discovery Parties are entitled to question opposing parties under oath before a court reporter (but not a judge) at an examination for discovery. If you have a lawyer, your lawyer will prepare you for your discovery and will sit next to you to ensure your discovery is conducted fairly. Your lawyer cannot give evidence for you at discovery and the other party will be given broad leeway to examine you on the issues in the litigation. You or your lawyer will also have an opportunity to conduct an examination for discovery of the opposing party. Discoveries are an important part of the legal process as they allow parties to see the strengths and weaknesses of both their own case and the other party's. Mediation and settlement opportunities Settlement can be attempted at any point in the litigation process. Parties can be forced to attend a mediation session by one party serving a notice to mediate. While your attendance at mediation is mandatory, there is no obligation on the parties to reach a settlement. Unlike small claims court where the court provides a mediator, parties in supreme court litigation select (and pay for) their own mediator. Proceeding to trial If you are unable to settle the claim, the parties can schedule the matter for trial. e parties must schedule a trial management conference to take place at least 28 days before the scheduled trial date. Parties must file a trial brief, in the proper court form, at least seven days before the trial management conference. e trial brief sets out the issues between the parties, the witnesses you intend to call at trial and an estimate of the length of your cross examination of the other party's witnesses. Between 14 and 28 days before trial, a trial record and trial certificate must be filed or the court registry will cancel your trial date. Supreme court trials can be held before a judge, or a judge and jury. e party that elects for a jury must pay jury fees in advance of the trial. ere are strict rules regarding when a notice to elect a jury must be filed. There is no substitute for legal advice e Supreme Court Civil Rules govern the court's procedure. ere are rules for many of the steps and procedures that take place in litigation. is article only provides an outline of the legal process for small claims and Supreme Court and there are other steps or tools that can and should be used in the litigation. You should not rely solely on the contents of this article if you are involved in litigation. We strongly recommend that you seek legal advice even if you intend to represent yourself in a lawsuit. Litigation can be a stressful time for the parties involved and having a lawyer at your side throughout the process is almost certain to make it less stressful for you. • Nigel Trevethan is a partner at Harper Grey LLP, one of Western Canada's largest litigation based firms. He is the chair of the firm's insurance law group and focuses on working with self-insured professionals and organizations helping them reduce risk. Nigel defends mortgage brokers and other professionals. Steven Abramson is an associate at Harper Grey LLP. His practice is focused on insurance defence work including the defence of mortgage brokers, contractors and others who have purchased insurance. THIS ARTICLE EXPLAINS the legal process once someone is sued. We will write future articles to help you avoid being dragged into the legal process. You are also invited to send questions to MBABC and we will answer some of those in future articles.