This article was loaned to me by the Law Society of Alberta. Rather than re-writing an article on this topic the Law Society of Alberta graciously allowed me to use this article. I am sure you will find it useful when dealing with your lawyer on the issue of civil law suits
A civil action is any legal action that is not a criminal action.
Civil actions are between private individuals, unlike criminal
actions which are between the State and the accused. Examples
of civil actions are claims for debt, for damages arising from
a motor vehicle accident, divorces, adoptions, matrimonial properly
actions.
foreclosures, and administration of estates following a death,
The persons involved in a civil action are called the parties.
If the document you receive is a "Statement Of Claim", a "Summons", a "Petition", an "Originating Notice" or a "Civil Claim", you must take quick action if you want to dispute the claim or the action sought.
Do not ignore any of these documents. You may get a judgment or order made against you if you fail to reply to any of these documents within the required time and in the required form. You should seek legal advice if you receive any legal documents.
In the case of a Statement of Claim issued in the Court of Queen's Bench, you have 15 days to file a formal Statement of Defence with the Clerk of the Court and serve a filed copy of your Statement of Defence on the party suing you, i.e. the Plaintiff.
If you receive an Originating Notice or a Petition, you should check the date on which the hearing is scheduled. Originating Notices and Petitions will usually be served only 10 days before the date set for the hearing, but there may be much less notice so you may not have much time to respond and prepare before the hearing takes place.
If you receive a Civil Claim filed in the Provincial Court and you want to defend against the claim, you have 20 days from the date of service of the Civil Claim to file and serve a Dispute Note on the Plaintiff
Your lawyer can advise you of the time limits that apply to your case.
The formal process by which a party named in a legal action receives a copy of the legal documents filed to start or to defend a legal action is called "service" or "being served". There are specific rules in the Rules of Court and certain statutes which prescribe how court documents must be served. Sometimes, for example, proper service requires that you deliver documents to the other part personally; sometimes, the rules allow delivery to be made by mail. Failure to serve documents in the required manner may result in the service being found invalid.
There are three stages to most civil actions: the filing and serving of the pleadings, the discovery process, and the trial process. There are certain critical deadlines which apply to each of these stages.
Sometimes, it is necessary to ask the court's help long before you are ready to go to trial, or even have a trial date set. Such an order is called an interim order. Usually only lawyers attend at court on these matters.and all evidence is given through affidavit
Pleadings are the formal written claims and defences used to
start and defend a lawsuit Pleadings include Statements of Claim,
Statements of Defence, Civil
Claims, Dispute Notes, Counterclaims, Petitions, Originating Notices,
and Answers. These documents set out the issues and any defence
to the claim.
The proper form of pleading will depend on the type of claim and the court in which the action is started. For instance, divorce actions are started by Petition but motor vehicle accident claims are started by Statement of Claim.
The Rules of Court require the initiating documents to be filed in the proper Court Registry and served within a specified period of time on the party being sued. For example, both Civil Claims; and Statements of Claim are to be served within 12 months from the date on which Civil Claim or Statement of Claim is filed with the Clerk of the Court. Petitions and Originating Notices must be served at least 10 days prior to the date of the hearing,
As mentioned earlier, the party being sued has a specific number of days to respond to the claim by filing documents in the proper court registry and serving them on the suing party.
The discovery process allows one party to obtain admissions from the other party and to learn more about the other party's case to decide if it is worth going to trial, or if a settlement should be offered. If the parties cannot reach an agreement, the court will have to decide the matter for them.
There are different elements to the discovery process. For example, each party can be required to disclose to the other party all documents and information relevant to the case. In addition, each party can be required to attend a meeting and be questioned under oath concerning the claim. This is called an examination for discovery. The questions and answers :are recorded, and then produced in written form and they can be used by the opposite party at trial. Your lawyer will help you prepare for this procedure.
The trial process involves ail proceedings involving preparation for trial, the trial itself, the giving of the judgment, and the filing of the order.
Any appeal of a court order must be filed within a specified period of time or the right to appeal may be lost Your lawyer will know these deadlines.
Normally. you do not need a lawyer to handle a claim in Provincial
Court (the civil division is usually referred to as "Small
Claims Court"). There the procedures are
simpler than those in the other courts. For instance, there is
no discovery process. The Provincial Court is intended for use
by the public.
In the other courts the issues are usually more complex and the procedures are more complicated. There are more rules and time limits which must be followed. Failure to comply with these could mean that the action is dismissed, or goes ahead in your absence, or that costs are to be awarded against you.
Remember. there are rules about the time in which you must bring a claim against someone else. These deadlines are called limitation dates, and they apply to all civil actions. If you do not start your civil action within the required time. you may not be permitted to do so after that time has passed. Your lawyer can advise you about the limitation date that applies in your case.
Every court has a set of rules to guide its proceedings. The Rules of court are regulations which set out the rules, forms, and procedures which apply in civil actions in the Court of Queen's Bench and the Surrogate Court. The Surrogate Court also has an additional set of rules that applies solely to its proceedings.
The various rules were enacted to ensure that the process is fair, that each party gets proper notice about proceedings and a chance to respond to the claims, and that the proceedings cannot be delayed excessively.
There are more than 800 rules in the Rules of Court. It is your lawyer's task to know these rules and to ensure that the parties comply wilh them.
An order that one party pay some, all, or none of the other party's costs is called an order for costs. There are three types of orders for costs. The most common are for party and party costs, which are usually made in favour of the more successful party. If you get this order for costs, it does not mean that 100% of your lawyer's fees will be paid by the other party. In effect, this order will mean that the other pony will owe you only a portion of the amount you actually pay in legal fees. Other orders for costs are made only in special circumstances.
Winning a law suit or an order for costs does not always mean the end of the matter. Some orders, like those for divorce or adoption, do not require the cooperation of the other side; others, like those for payment of a sum or money or the transfer of property, do. If the losing party does not cooperate, you will have to start enforcement proceedings to collect on the judgment.
There are a variety of enforcement proceedings. They include: garnisheeing wages or bank accounts, seizing property owned by the other party, registering the judgment against property, and contempt of court. Your lawyer can advise you of the most appropriate method in your case.
In Alberta, a law suit can be started in the Provincial Court, the Court of Queen's Bench, the Surrogate Court, or the Federal Court. Each of these courts has power to decide certain claims.
You must choose the proper court to deal with your specific claim.If an action is started in the wrong court, it will be invalid. The choice of court will depend on the reason for the law suit and, sometimes, the amount of money involved, if any.
Even where you intend to handle your own legal proceedings, it is recommended that you first talk with your lawyer. This step might help you to better protect yourself from concerns about limitation dates or any complications that may arise in the law suit.
Your lawyer is your advocate who will conduct matters with
your best interests in mind.
Your lawyer can advise you of:
1. any limitation dates that might affect your right to proceed with a civil action
2. the proper court and documents needed to start the action
3. your legal position and any claims or defences that should or must be made:
4. the time limits at each stage of the process;
5. any interim orders needed to protect your interests;
6. the need for any expert evidence;
7. your chances of success or failure. and whether settlement should be accepted:
8. whether an appeal should be taken.
9. ways of enforcing your court order.
Your lawyer will:
1. draft the pleadings;
2. arrange for the proper filing and service of the documents on the other party:
3. take necessary steps to protect your position until a judgment is made:
4. conduct necessary searches and retain experts to assist your case:
5. help prepare you for the examinations for discovery and testimony at trial:
6. conduct examinations for discovery of the other party and its documents; '
7. present your evidence at trial
8. draft the court order.
