Running the Litigation Path

A plaintiff commences an action for relief. The hope is the plaintiff’s action will make it to the finish line whether on settlement or at trial with the relief requested or at least a substantial part of it. Along the way there may be hurdles in the race: hurdles which can put an end to the race. Our Civil Litigation system has a number of hurdles that are purposely set up to block those seeking to use the racetrack when they don’t belong on it. A plainly obvious claim that has no merit can meet its first hurdle early under Ontario Rules of Civil Procedure, Rule 2.1, and ultimately the Justice could put an end to the claim early in the race under that rule. But even if this first hurdle does not apply or is successfully jumped, others potentially will appear before that desired litigation finish line. Motions to strike pleadings under Rule 21, Motions to dismiss actions that are not reasonable, and an often used potential hurdle, the motion for summary judgment. All these hurdles ensure that the racetrack is used for legitimate runs not those who wish to use the tract for collateral improper purposes and for cases that simply don’t belong on the track.

Proper pleadings at the outset go a long way to helping in the run to the desired outcome. This requires knowledge of the different potential types of claims, remedies and the material facts to support them. Without this, it is like a runner going down the track with shoe laces undone: inevitable trip.

The litigation path to be followed to the desired finish line requires that the race include hurdles. Without proper hurdles in the system anyone with the wrong motives can use the track. Track time is limited as are the resources that support it to ensure fair , timely races for those that belong on the track. So even if a runner has a proper pleading and clears initial hurdles, there are potentially more to come down the race path, ex motion for summary judgment.

Gather and reflect on the material facts in your case. Reflect on the possible legal claims. Prepare for the run and always as you are going down the path be open to new information that comes in and be flexible to adjust to this new information. It will help to deal with each hurdle as it may arise. *

William Poulos, Barrister
*This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

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