Commercial Litigation

The cost of litigation varies greatly depending on the nature of the dispute. While the cost of advancing or defending a claim through to a trial can be significant, it is important to understand that the litigation process can be approached incrementally. An incremental approach includes reassessing the costs associated with each step in the litigation process to ensure good value in executing specific strategies or next steps.

It is difficult to estimate the time necessary to take a dispute through to resolution. The average time it takes to reach a civil trial in Ontario is approximately 2 years, however complex commercial matters often take longer.  Reaching a resolution may not require proceeding to a trial. In fact, the majority of the civil litigation matters in Canada resolve before trial.

The civil litigation process has been designed to bring the parties to a resolution. In most civil lawsuits, the process begins with the exchange of “pleadings” that define the issues in dispute between the parties. Next, there is an exchange of information between the parties by way of “discovery”, both in respect of documents and by oral evidence obtained during examination. The purpose of discovery is to allow the parties and counsel to better understand the merits of the case and the evidence that will be lead at trial. In Ontario, mediation is typically mandatory. The process is confidential and its purpose is to try and bring the parties to a resolution without the need for trial. A “pre-trial conference” is also required before a matter can proceed to trial. A pre-trial conference is an opportunity for the parties and counsel to appear before a judge who typically provides his/her views on the strengths and weaknesses of each party’s case, with one of the purposes being to try to encourage resolution without a trial. If no resolution is reached, the matter proceeds to trial.

In Ontario, the successful party will typically be entitled to a cost-award for a portion of the legal fees incurred in advancing or defending the claim. The amount is determined by the court on a case-by-case basis and it is a highly discretionary process. There are two primary scales for costs awards in Ontario. Costs on the “partial indemnity” are the norm, and typically range between 45-65% of the actual costs incurred. The court will look at a number of factors in determining whether costs should be awarded instead on the higher “substantial indemnity” scale, which can range from 75-90%. In particular circumstances it is possible to have full indemnity costs awarded, however it is rare.

When a party successfully obtains a judgment against another party, it remains to collect on that judgment. In Ontario, a judgment holder is entitled to examine the judgment debtor periodically so that the judgment holder can identify assets that might satisfy the judgment.  The typical mechanisms for judgment enforcement are “garnishments” which require that money owed to the judgment debtor be paid to the judgment holder (from wages, bank accounts, etc.) and “Writs” where the enforcement office assists in taking and selling certain land or personal property of the judgment debtor.