Courts in Ontario have special rules that apply to how parties must notify one another about each step that they take in a lawsuit (“proceeding”). The reason for this is because lawsuits are a very serious matter. Therefore, the procedures are designed to make sure that notification is successful. For example, if you want to sue someone, you must not only tell the court (by “filing a claim”) who you want to sue, you must also let the defendant know you are suing them, and what you are suing them for.
In addition, after a lawsuit is begun (“proceedings are commenced”) for each step, there is often paperwork involved. For example, if a party wants to ask the court to order the other side to comply with a certain rule, they can do what is called “bring a motion”. This type of procedure requires you not only to tell the court what you are bringing the motion for, you must also let the responding party know the same information. Fairness dictates that each side gets to tell the court of their position in relation to a dispute, whether at a trial, or in a motion. (There are what is called “ex-parte” motions where a party can bring a motion without telling the other side first, but those are reserved for very special and pressing situations. It’s best to check with a lawyer first before attempting to bring such a motion.)
In this set of Legalese Translator videos, I interview lawyer Heather Douglas to explain to us 3 aspects of the special way court procedure imposes on sending documents, which I had found quite surprising to learn, as a self-represented litigant before I was a lawyer!
Firstly, there are only very specific methods that the court allows you to send documents to the opponent, or what is know as “serving a document”. As Heather Douglas explains in the video, you can’t just use social media, for example, to notify your opponent in a lawsuit! In addition, the format and appearance of the documents are also strictly “prescribed”. Court form templates are available on the court website. You must comply to the format, or the court clerk will not accept them. And, depending on which type of matter your lawsuit is in, there is a different format for each! For example, Small Claims court and Family court forms are NOT the same as those for Superior Court!
Secondly, in the Rules of Civil Procedure which applies to matters at Ontario Superior Court (civil litigation), the word “deliver” has a special meaning. I was quite surprised to learn that a simple English word could have a legally significant meaning. “Deliver” in the legal sense involves 2 steps: serve and file the document. Filing a document literally means taking the document to the court house and handling it to the clerk at the counter. Lawyers often ask articling students, law clerks at the law firm, or professionals called “process servers” to do this for them. Self-represented litigants often do the “delivery” themselves.
Finally, there is a third step in serving and filing documents. The rules often require that there is some form of proof that the documents were indeed sent to the other side. Parties are often required to get an “affidavit of service”. An “affidavit” means a “sworn statement”. An “affidavit of service” is a document that says that the person swearing the affidavit (“affiant”) served the document in person/mail/etc. As an example, if you are the moving party in a motion, and you served the responding party by leaving a copy of the materials at their lawyer’s office, you would indicate this fact in your affidavit. Then, you must take the affidavit and go to a Commissioner of Oaths, swear to the Commissioner that what you said in the affidavit is true, sign in front of the Commissioner, who then signs their name on the affidavit next to your signature.
As you can see, court rules impose a great deal of unexpected details, even when it comes to what one may have assumed to be a simple step. I was quite bewildered to learn about all the song and dance that goes with even just sending paperwork. Perhaps with the trust that is often broken down between people, every step in litigation demands “proof”. Many litigants and lawyers complain that litigation turns every simple thing into something complicated. Most people who have been through litigation, either as a party or as a legal professional, encourage people to settle their dispute out of court. However, for those whose situation prevents them from settlement, I hope that this videos will help make things a bit easier in their litigation journey. Don’t forget to read the Description below each video for more links to useful resources!
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