For a rule or statute, requiring a proceeding to be commenced, brought, tried, or heard in a particular county, the proceeding must be commenced in that county and the county must be named in the originating process, the statement of claim or application. Failing this, the proceeding may be commenced at or transferred to any court office in any county named in the originating process.
Act or Apply?
In an action, the parties exchange pleadings (i.e., Statement of Claim, Statement of Defence and Reply), produce documents, and conduct examinations for discovery (evidence and testimony). If no settlement is reached, a trial follows. Either, a single judge conducts the trial, hearing oral testimony and legal argument and deciding on the issues of fact and law, or it is carried on before a judge and jury, in which case the judge decides issues of law (what the law says both statute and case history) and the jury decides the issues of fact (evidence and testimony).
In an application, a lone judge determines settled questions of law or mixed questions of fact and law on the basis of affidavits (sworn documents) without calling witnesses. Specific kinds of relief are asked for in applications like, the legal interpretation of a contract or other written instruments, an oppression remedy under the business corporations legislation, or a remedy under the Canadian Charter of Rights and Freedoms.
The Originating Process
It is a document issued by the registrar of the relevant court, upon which commences a proceeding under the Rules of Civil Procedure. However, in a specific exception, the registrar is not to issue an originating process for counterclaims or crossclaims involving only persons who are already parties to the action; and hence the parties can simply serve upon each other and file with the courts thereafter. There are certain attributes distinguishing an originating process from other pleadings. As it originates the process, it must be issued in the court office before being served. Moreover, it contains standard form warning language directed to the defendant, respondent, or other party who is being brought into the overall litigation for the first time, a language informing the defendant or respondent about their obligations to defend or respond while outlining the applicable time periods, etc. It has to be necessarily served personally or by an alternative to personal service.
An application notifies the respondent that a legal proceeding has been commenced for certain specific relief, giving the date, place, and time for the hearing of the application, the judge or court before whom the proceeding will be argued, the grounds for the application, and the evidence that will be relied upon. There is a specific kind of notice of application for use specifically in applications for judicial review to the Divisional Court.
Content of Pleadings
Great care on details must be taken when preparing pleadings. Every document in a proceeding must have a heading, which sets out the name of the court and the court file number and the “title of the proceeding”. A notice of application must necessarily state the statutory provision or rule, if any, under which the application is made. As parties are named differently in different types of proceedings, the party commencing the action is the plaintiff and the opposite party is the defendant; the party commencing an application is the applicant and the other side is the respondent.
Beginning an Originating Process
Beginning an originating process starts with the registrar’s act of dating, signing, and sealing it with the seal of the court and assigning to it a court file number; a copy of which is to be filed in the court. This date is considered to be the date of commencement of the proceeding, within six months of which a statement of claim must be served. In instances where a notice of action is commenced prior to the action, both the notice of action and the statement of claim must be served together within six months. Failure in this early stage, would likely be regarded as an irregularity, but could be remedied by a court order under rule 3.02, extending the time for service.
Although individual litigants are allowed to represent themselves, there are some exceptions. A party under disability or acting in a representative capacity must be represented by a lawyer. A corporation, except with leave of the court, must be represented by a lawyer. Generally, the lawyer or law firm who acts for a party is referred to as the party’s “solicitor(s) of record,” meaning the solicitor who is shown in the records of the court office in which the proceeding was commenced as representing the client (party). Contact the lawyers at Levy Zavet PC for legal representatation in all your litigation needs, no matter if its for an action or application.