Litigation – An Overview Of The Process

What is litigation? Litigation is the formal process of taking legal action. A litigation lawyer is a lawyer who will argue your case on your behalf if you have a dispute with an individual or organization. In employment law, an employment lawyer will represent either the employee or employer in negotiations or in court with respect to notice of termination, severance, wrongful termination, breach of contract, and many other issues. The lawyer will represent the individual or organization throughout the litigation process.

The litigation process is divided into the following steps:


The first step in arguing a case is getting all the facts. A consultation allows the lawyer to understand the background of the case so they can apply the law to the facts. They assess whether it is worth commencing a claim against the other party or whether the evidence speaks to the merits of the case. Monkhouse Law offers a free 30-minute consultation to understand the strength of your case. 


In litigation, the plaintiff is the person who is filing the claim or commencing the action. The defendant is the person or organization that defends the action. The lawyer for the plaintiff first drafts the Statement of Claim which sets out the background of the case, the law that applies to the case, and what relief is being sought (e.g., termination pay and other damages). Once the Statement of Claim has been served, the defendant must respond with a Statement of Defence disputing the facts and putting forth their narrative as to what the facts are. A defendant who fails to respond with a Defence could find themselves in serious trouble, as they run the risk of being noted in default. A defendant who has been noted in default will be assumed by a court to have admitted all the allegations in the Statement of Claim. 


Mediation is mandatory in most civil cases in Ontario. Mediation usually involves both parties meeting with a mediator. The mediator will go from the plaintiff’s room to the defendant’s room, speaking with each party and providing insight on the claim. They will usually communicate offers back and forth between the parties to facilitate a settlement. Most cases settle at mediation; however, if the case does not settle, both parties will nevertheless have a clearer picture of what their position is and better understand the strength of that position.


Discovery involves both parties answering questions from opposing counsel. The plaintiff’s lawyer will have a chance to examine the defendant’s representative and vice-versa. The individuals being examined are put under oath and are expected to answer all questions honestly. Either party will have a chance to request additional documents or information in the form of undertakings. 


A pre-trial is the last step before trial. It is a chance for the parties to reach a resolution before incurring the large costs of going to trial. The pre-trial is conducted by a judge. However, this judge cannot be the trial judge. The judge will give their opinion on the case and once more try to facilitate a settlement. If a settlement is not reached, the trial proceeds.


At trial, the process is similar to a discovery with the exception that a judge is now overseeing the examinations. Each side will have a chance to test the strength and weaknesses of the case. Ultimately, the trial judge will decide on the outcome of the case. It is noteworthy that very few cases reach the trial stage. The high cost of a trial is a persuasive reason for parties to a dispute to earnestly work towards a settlement in advance.


If a party is unsatisfied with the decision of the judge, they can appeal the decision. An appeal is asking a higher court to review the decision to assess if any errors were made by the trial judge.

If you require more information about hiring an employment lawyer, book a free consultation with us. Monkhouse Law is an employment law firm located in Toronto with a focus on workers’ issues. Give us a call at 416-907-9249 or fill out this quick form. We offer a free 30-minute phone consultation.

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