It is not always true that the losing party has to pay legal fees for themselves and the other side.
A losing party will of course be responsible for their own legal fees. They will also most likely be ordered to pay a portion of the legal fees for the winner. These legal fees are called “Costs”. The idea behind this is to discourage thoughtless and redundant litigation. A plaintiff should think twice about suing, if losing means, not only do they have to pay their own lawyer, but they’d also have to pay part of the other side’s lawyer too!
Costs are also used by the court to encourage parties remain civil to each other during the course of the lawsuit. For example, if one party behaves in an intolerable manner during the litigation, the judge can order that the loser pay a greater amount of costs.
Costs are also used to encourage settlement. When parties make offers to settle, this factor will be considered by the judge when deciding the amount of costs to award. However, there are formal rules regarding how and when such offers are made. Note also, that costs are at a judge’s discretion. It is possible for courts not to order any costs.
Like most things in litigation, the law on costs is quite detailed. It is recommended that you review the applicable law and rules, or speak to a legal professional for a more thorough understanding of this concept.
We created a video to explain various costs in Litigation: https://youtu.be/TFBcOu7kpLM
Pleadings are the formal documents that the parties file in court in the beginning stage of a lawsuit. These documents contain all the allegations that parties have against each other. For example, for Ontario Superior Court cases, the most common pleadings are the Statement of Claim and Statement of Defense.
They are important because lawsuits are usually decided within the boundaries of pleadings. For example, if you say someone breached a contract you would want to put that allegation in your pleading. If you don't, it is unlikely the judges will consider it in the trial. However, judges have the ultimate discretion.
In general, it is best to seek professional advice from either a lawyer (for lawsuits in general) or paralegal (for Small Claims matters) when it comes to pleadings.
Watch Litigation Help's video on Pleadings: https://youtu.be/6WwGYe2IaGQ
Close of Pleadings is a very specific time to lawsuit. There are several situations that signify this event. One is when the plaintiff has replied to your defense, or when the time for their reply has expired. Refer to Rule 25.05. Go to CanLII website to see the latest Rules of Civil Procedure (Ontario)
Close of pleadings is important because once a pleadings are closed it allows other steps to begin in a lawsuit. One of the key steps could be that the plaintiff can move to have the action to go to trial or discovery.
You could change (or “amend”) the pleadings before they are closed.
Rule 26.02 says:
A party may amend the party’s pleading,
(a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action;
(b) on filing the consent of all parties and, where a person is to be added or substituted as a party, the person’s consent; or
(c) with leave of the court.
However, there are special exceptions to that, such as adding a party if a limitation period has expired. Overall, for the most part you could make changes before the pleadings closed.
Litigation Help's video on Pleadings: https://youtu.be/6WwGYe2IaGQ
When you sue someone, your Statement of Claim must include a “cause of action”, which is the host of facts used to justify your right to sue. We cannot simply sue for everything that happens to us because not every slight is something that courts will recognize as having remedy attached to it.
Common examples of cause of action include breach of contract, negligence, defamation, etc. A claim may be “struck out” if it does not have a “reasonable cause of action”. The claim should include the “material facts” that give rise to the cause of action. An example of what this means is in the judge’s decision in this case, Diaz v Tossa, 2017 ONSC 54 (CanLII), <http://canlii.ca/t/gwwzk>
Litigation Help's video on Cause of Action: https://youtu.be/b5yUmvgJOtg
If you represent yourself and lose, you could try to reverse or overturn the court's decision as a self-represented litigant, or hire a lawyer to help you. There are two technical routes to do this depending on the type of decision. One way is to appeal the decision. Another is to "set aside" a decision. As this is a short answer, it is not possible to include the necessary details to understand appeals and setting aside decisions, both of which can involve complicated legal reasoning. It is therefore a good idea to speak to a lawyer to find out which path you should take. However, be mindful that you cannot expect the court to give you a second chance to hear you out just because you were a self-represented before, and you now decided to hire a lawyer to argue on your behalf.
The biggest challenge in being a self-represented person is that they often do not have enough knowledge about the law to present legal arguments, or understand the procedures involved to navigate the system. Many people assume that if the facts are such that it's obvious they must win. Many people do not understand the difference between legal issues and disputes understood in common sense. In addition, there are numerous procedural hurdles. There are many deadlines for many steps in litigation. There are also many procedural rules that must be obeyed. As an example, expert reports must be served and filed ahead of time, or the expert may not be allowed to testify. If a self-represented litigant did not realize this and did not comply with the rule, they may not be allowed to show important evidence from the expert report at trial, and may lose the case.
It is also disadvantageous to a self-represented person when dealing with opposing counsel before the trial, as they could be out-maneuvered. An experienced lawyer handles cases strategically. It's a bit like playing chess. Even if you know how the chess pieces move, playing the game against a master is hard to do!
In addition, another risk in self-representation is that as a litigant, one is often so emotionally involved in their case that it is difficult for them to be objective. In such a state, it is very tempting to see the situation in black and white, right and wrong. It is very difficult for a litigant to see different sides to the situation.
I should add that many self-represented litigants have the impression that the judge did not want to listen to them. However, other self-represented litigants have also told me that they felt the judge was quite sympathetic. My suggestion is to look for a limited scope retainer or unbundled services lawyer to help you with your case, and always be civil and courteous, to the court, and to your opponent.
For legal education videos, visit www.youtube.com/c/litigationhelp
If you are suing someone, you are not forced to hire a lawyer to do this. You are allowed to file a claim yourself. Similarly, if you are sued, you are not forced to hire a lawyer to file a defence. However, the rules and procedures involved are not easy to understand, even with all the information available online. This is why most people do need a lawyer. If you hire a lawyer to represent you, technically, that lawyer is "on the record". This lawyer is responsible for taking care of your case on your behalf in all the aspects of the lawsuit, such as corresponding with opposing counsel, arguing at hearings for you etc. This is the most common way to hire a lawyer for litigation. More recently, you can also hire a lawyer "in the background" to coach you, or draft legal arguments or other court documents for you. This second way of hiring is referred to "unbundled" or "limited scope retainer" services. This allows you to represent yourself, while still being able to receive legal assistance to your case. For more information, visit Self-Rep Navigators, www.limitedscoperetainers.ca. For family litigation, see Family Law Limited Scope Services https://www.familylawlss.ca/
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