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WHERE TO SUE AND WHICH COURT?

Litigation may be defined as the conduct of a lawsuit in a court of law; and to do that it is necessary to be aware of the jurisdiction, organization and a host of other things relating to the courts in the area or the province.

Litigating in Ontario

In Ontario, the organization of the court system is outlined through the Courts of Justice Act, a statute of eight parts (Part III of which was repealed more than a decade ago). The first two parts, dealing in the Court of Ontario and the Court of Appeal for Ontario respectively, would be the issues seen here.  There are eight regions forming the administration and management of the court system, among which, with the exception of Toronto, the remaining seven regions are roughly of the same size. For administrative purposes, judges of the Court of Ontario are deputed to sit in a particular region, though every judge has jurisdiction throughout Ontario.  The judiciary is administered by a designated senior judge within his or her region.  With a view to address the specific needs within the particular region, this regional senior judge works with the chief administrator of the region, the regional crown attorney, and representatives of the regional bar. There are differences locally as also geographically, even though the populations are nearly the same. Legal counsels along with local bar associations take these into account while dealing in administrative matters and scheduling with local regional judiciary.

Court of Appeal

The Court of Appeal also has jurisdiction to hear an appeal from an order of the Divisional Court on a question that is not a question of fact alone, with leave. Lastly, if there is any question referred to it by the Lieutenant Governor in Council (i.e., the provincial Cabinet), including constitutional references, the Court of Appeal has original jurisdiction to decide on that.  At least three judges sitting together, and always by an uneven number of judges, proceedings in the Court of Appeal are heard and decided upon.  Motions, however, are set before one judge in the Court of Appeal, with the exception of a motion for leave to appeal, a motion to quash an appeal, or any other motion specified by the Rules of Civil Procedure (Rules). It is important to note that such rules are not absolute.  A single judge has the power to adjourn a motion to a panel of the Court of Appeal.  Likewise, when a motion is heard by one judge, a panel of the Court of Appeal could, on motion, set aside or vary the decision of the judge.

Superior Court of Justice & Divisional Court

One of the two divisions of the Court of Ontario, the Superior Court of Justice is a superior court of both civil and criminal jurisdiction, and has all the power and authority historically associated with courts of common law and equity in England and Ontario.  A branch of the Superior Court of Justice, the Divisional Court exercises primarily appellate jurisdiction. An appeal to the Divisional Court has to be heard in the region it emanated from, unless the parties agree otherwise or the Chief Justice of the Superior Court of Justice orders otherwise.  Proceedings, like judicial review where it exercises original jurisdiction, in the Divisional Court may be brought in any region.

Small Claims Court

One more branch of the Superior Court of Justice, the Small Claims Court has its jurisdiction over “small” claims at or under $25,000. A  court providing a more accessible and less formal way of litigating disputes,  the amount of money claimed or the value of personal property to be recovered through the Small Claims Court should not exceed the amount prescribed by regulation (now $25,000).  It can not exceed that prescribed amount, nor can it grant equitable relief.  Mandated by a statute to hear and determine all questions of law and fact in a summary way, the Small Claims Court has to make such order as it considers “just and agreeable to good conscience”. With a view to ensure that the court meets this mandate, the rules of evidence are relaxed and empowers the court to admit any oral testimony and any document or other thing, so long as the evidence is relevant to the subject matter of the proceedings.  So, hearsay evidence prohibited under common law is admissible here as a matter of course, with two exceptions:

  • the court will not admit testimony, documents or other things that would otherwise be inadmissible by reason of any privilege under the law of evidence (i.e., solicitor-client or public interest privilege), or
  • that are inadmissible by any statute.

Jurisdiction together with rules of procedure form the basis of proceedings in any court because the rules vary from one jurisdiction to the other, and even from court to court under the same jurisdiction.  The lawyers at Levy Zavet PC are there to assist on every level!

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