5. Starting a Civil Court Case

Being involved in a lawsuit can sometimes be overwhelming. You may be wondering what to expect. Here is a general snapshot of the steps in a legal matter. Each jurisdiction (province or territory) has their own set of rules and procedures. Also, within each jurisdiction there are different levels of court (e.g. provincial, superior trial, and appeal) which have their own set of rules and procedures. So, a lawsuit in Alberta Provincial Courts will look different from a lawsuit in an Ontario Superior Court. You will need to check the rules and procedures for your location and case. In Section 13: Resources, you will find specific information and services for your region.

Regardless of your location, there are some common rules and procedures in all civil lawsuits.

Completing Court Forms

You will need to use your legal writing skills when completing court forms. Court forms are the documents that the court needs from you. These forms require specific information from you that help the judge understand your case.

At the start of your case, you will need initiating court forms (sometimes called pleadings). These are the documents that start or respond to an action. Pleadings are important because they set out what is your position and what you want from the court. In your pleadings, you must clearly write what you want the judge to order.

When writing your court forms:

• Know what you want: Considering what your legal rights and obligations are and what you want, you can figure out what order to ask from the judge.
• Know your legal position: Get familiar with your legal rights and obligations. You will not want to ask for an order to which you do not have a legal right.
• Know the “interests” and legal position of the other person: Try to understand what the other side wants and why.
• Know what to write: Include everything you want the court to order. A judge may only grant you an order that you requested in your initial forms, (e.g. if you only claim medical expense damages in your pleadings, you may not be able to ask the judge for an order for compensation for lost wages).
• Keep it simple: For example: “I was driving down main street when the defendant wrongfully or negligently drove through a stop sign and hit me, damaging my car and causing me injury. I want payment for the cost of repairs for my car ($10,000) and compensation for the pain and suffering caused by my injury ($100,000).”

Tips for writing forms:

1. Using names:
   1. Use full legal names, including middle names.
   2. If you or the other party often use a name other than a legal name, include that name by adding “AKA” (also known as) before that name, e.g. “John James Doe AKA JJ Doe”.
   3. You may also define the name at the beginning of the document text, e.g. John Doe (“John”). Then you only have to refer to him as John in the rest of the document.
2. Complete: Be sure to fill in every part of the forms that apply to you, even if the answer is obvious. In some jurisdictions, there are special requirements about crossing out sections or writing “not applicable” in sections of forms that don’t apply to you. You should check with court staff it you aren’t sure how to fill out a form.
3. Accurate: Be accurate and truthful. Being dishonest in your forms will hurt your case and lying in an affidavit is a crime (perjury).
4. Keep it professional: Remember that a judge and the other party will be reading this.
5. Review: Make sure you read through your form before submitting it. Read it to make sure it would make sense to someone who knows nothing about the case. The form should clearly explain the facts and what orders you are asking for. Seek legal help if you want a professional to look over your forms.

A lawsuit starts by filing (which means to formally submit) an initiating court form with the court. Different kinds of lawsuits are started with different initiating forms. The type of form you file will depend on your location, court and type of legal issue you are facing. The most common forms used to start a lawsuit are notice of claim, a petition, a writ of summons and statement of claim. This form will say who you are, whom you are suing, and why you are suing them. It also has important information about when the person you are suing must reply to your lawsuit.

It is important to prepare the right form to make sure that everyone has all the information they need and understands what happens next in your lawsuit. Go to the courthouse staff or seek legal advice on which form to use.

After you have filed your initiating court form, you must deliver the document to the person you are suing in a special way called “service”. There are very specific rules about how you can serve (give / deliver) documents such as court forms, to other parties. The courts are very concerned about all parties being properly served because they want to ensure parties are given notice. The way you serve a document will depend on the type of form you use. Check the court rules to learn how to serve your document.

Most of the time, service happens when the document is handed to the person being sued, but it can be easier or more complicated than that. You may be able to send it through registered mail. If you are having difficulty serving the other party, you may need to seek a court order for alternative service.

The person you are suing must then file a replying court form in court within a set number of days after they have been served. The most common forms used to reply to a lawsuit are a statement of defence, reply, or response. If the responding party does not file a replying court form, you may be able to apply to get a final order without the other party’s involvement (a default judgment).

If you are the person being sued, you must file a reply form (often called an Appearance, Statement of Defence, or Response). This document tells both the court and the person who has sued you which of the claims you agree with and which you do not agree with.

You have a set number of days to file your reply after you have received the initiating court form. The initiating court form will usually say on it the number of days you have to reply. If you are unsure about the time limit, ask the courthouse staff. If you do not file a reply the person who started the lawsuit might be able to ask for a final order (often called a Default Judgment) and a final decision could be made without your input.

It is also important to reply to the initiating court form using the right reply form. Each type of initiating court form will have a specific reply form. If you are unsure of what form to use to reply you can check the Rules of Court, or ask the courthouse staff or a legal help provider in your area.

If you want to make a claim of your own against the person who is suing you, you must file a counterclaim in court. This form says who you are, whom you are suing, and why you are suing them. For example, if you are being sued for not completing the landscaping work you were hired to do, you might have a counterclaim against the other party because they have not paid you for the work you already did on the landscaping.