Civil Litigation vs. Criminal Cases: Similarities & Differences

Civil Litigation vs. Criminal Cases: Similarities & Differences

Civil Litigation typically involves suing for money, whether it is damages for things like breach of contract, misrepresentation, personal injury, wrongful or constructive dismissal, real estate litigation, breach of lease, and so on.  The court will assess damages based on the evidence before it.  You need to prove your losses or out-of-pocket expenses.  

The court process in Civil Litigation involves various steps before trial.  Such as:    

Once you hire a lawyer, then they need to gather the facts and relevant documents from you so that they can prepare a Statement of Claim (which starts a lawsuit) or a Statement of Defence.  You should see drafts of these documents before they get filed in court so that you can make corrections and approve what the lawyer is filing.  It costs $243 for your lawyer to issue a Statement of Claim and $194 to file a Statement of Defence (as of 2024).  The Statement of Claim has to be served on the other side.  Usually, this is done by a process server.  

The next stage is known as “Discoveries,” which is when your lawyer will prepare an Affidavit of Documents, which contains all of the relevant documents that you have in your possession so that they can be listed in chronological order.  You will sign an Affidavit of Documents when it is completed, and then the lawyer will send it to the other side.  The other side needs to do the same.  Sometimes, Affidavits of Documents can include hundreds of documents or more, depending on the kind of case it is and the number of relevant documents.  Relevant documents may include draft and signed contracts, emails between the parties before litigation, pictures, invoices, corporate records, financial statements, etc.  The type of case and issues involved dictate what kinds of documents need to be produced.  

After Affidavits of Documents are exchanged, then the lawyers will conduct Examinations for Discovery, which involves questioning under oath.  These can be done in person or by video.  The examinations will be recorded so that a transcript can be made of everything that was said in case there is a dispute between the lawyers later on.  The person being examined will have to give an “oath” to tell the truth.  Your lawyer gets to question the other party, and the other lawyer gets to question you.  In cases where the damages claimed are over $200,000.00, then each side is allowed to examine the other side for up to 7 hours.  For cases where the damages are less than $200,000.00, then there is a 2-hour limit per side.  Your lawyer should prepare you before you are examined by reviewing documents and giving you an idea as to what types of questions may be asked.   

At the examination, you may be asked to produce further documents by the other lawyer.  If your lawyer thinks it is a relevant request, then your lawyer will undertake to obtain the document and produce it to the other lawyer at a later date.  If your lawyer thinks that the request is not relevant or privileged, then your lawyer may refuse to produce the requested document.  There may be disputes between the lawyers at the Examination for Discovery.  If necessary, then a motion can be brought to the court at a later date to compel the delivery of a document that was refused.  In this sort of motion, the lawyers argue as to whether the request was relevant or not to the case. 

Mediation is often the next stage after Examinations for Discovery.  In some jurisdictions, like Toronto and Ottawa, there is Mandatory Mediation.  Sometimes, cases settle at mediation; sometimes, they do not.  It depends on whether the parties involved are motivated to settle or keep litigating.  The mediator cannot force a settlement.  

If the case does not settle at the mediation, then the next stage is setting the case down for trial.   This involves filing a Trial Record with the court, which costs $859.00 as of 2024.  Eventually, the court will send a list of available trial dates to the lawyers, and they will try to come to an agreement as to when everyone is available for the trial.  

Before the trial, there will be a Pre-Trial Conference, which is often the first time that the parties are actually in front of a Judge.  Many people involved in lawsuits do not realize that just because you have a court case, you may not actually meet a Judge for several years, which is at the Pre-Trial Conference.  The Pre-Trial Conference is typically 1 hour long.  The Judge will usually try to settle the case (if the parties are willing to settle), and if the case does not settle at that time, then the case will proceed to trial at a later date.  The Pre-Trial Judge will not be the trial judge.    

Only about 5% of cases actually go all the way to trial.  All of the rest settle before.  People always think that their case is going to be the one that goes to trial, but they are usually wrong.  The reason most cases settle is because trial is expensive, time-consuming and risky.  The lawyer has to do a lot of preparation before trial, such as:  preparing Exhibit Books, legal research, preparing examination questions, preparing witnesses, and so on.  

The Judge could give their decision at the end of the trial, but often they “reserve,” which means that they will review their notes and give you a written decision at a later date.  Sometimes, that can take weeks or even months.  The winning party usually gets awarded “legal fees” after the decision is rendered.  This is like a double blow to the losing side since they not only incurred legal fees up to the end of the trial, but now they have to pay a portion of the winner’s legal fees.  That can be devastating, so you and your lawyer have to give some serious thought as to what your chances of winning are before you decide to go to trial.  It may be better to settle.  

There are other steps that may be involved along the way, such as motions.  Motions are procedural steps during the litigation when the parties have disagreements before the trial, or to freeze assets or preserve evidence pending trial.  

In addition, some cases may be decided in an expedited manner by a Motion for Summary Judgment, without having to go to trial. These types of motions can be brought where there is “no genuine issue for trial”.  An example might be a lawsuit involving a loan that was not repaid.  If the only issue is that the loan was not repaid, and there is no bona fide defense, then the Plaintiff could bring a Motion for Summary Judgment.   

On the other hand, in Criminal cases, the court determines whether someone is guilty or not guilty on a “beyond a reasonable doubt” threshold.  If guilty, then the court will determine what the appropriate sentence is.  The court can also order restitution of damages, but typically the victim will have to pursue damages separately in Civil court.  

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