Clients often ask us how long the litigation process takes. The answer varies depending on the specifics of each case, but it’s important to understand that litigation can be a lengthy process. Here’s a brief overview of what you can expect:

2-Year Limitation Period

Before initiating a lawsuit, it’s crucial to consider the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. You have 2 years from the date of injury to file a lawsuit. Although some may feel rushed to issue a claim, this period can allow plaintiffs to assess their damages and engage in settlement discussions with the defendant’s insurance company. Hiring a lawyer in these preliminary stages can be beneficial, as they can represent you in settlement discussions with the other side.

Statement of Claim

If settlement discussions are unproductive and the two-year limitation period is fast approaching, a lawyer may advise you to file a Statement of Claim with the court. This legal document initiates the lawsuit and outlines the plaintiff’s case. After filing, the Statement of Claim must be served on the defendant within 6 months.

Statement of Defence

Once the Statement of Claim is served, the defendant has 20 days to file a Notice of Intent to Defend or a Statement of Defence. If a Notice of Intent to Defend is filed, the defendant has an additional 10 days to serve the plaintiff with a Statement of Defence.

Examination for Discovery

Once pleadings are closed, the parties will communicate with each other to schedule a date for Examination for Discovery. This is a step in the litigation process where parties to a lawsuit gather information from each other under oath. This process aims to clarify the facts of the case, narrow the issues, and facilitate settlement.

The challenge with scheduling discoveries, especially in multi-party lawsuits, is finding dates where all parties and counsel are available. This process can be lengthy and requires the cooperation of all parties to ensure discoveries are conducted efficiently and within a reasonable timeline.

A plaintiff will typically attend discoveries within 3 to 6 months after pleadings are closed.

Mediation

Mediation can take place at any point during the litigation process, but this step generally occurs after Examination for Discovery. In certain regions, such as Ottawa, Toronto, and the County of Essex, mediation is mandatory.

Mediation is a structured process in which a neutral third party, known as a mediator, assists the parties in resolving their case through communication and negotiation techniques. The mediator helps the parties identify their issues, explore potential solutions, and reach a mutually acceptable agreement.

Parties may experience similar challenges in scheduling mediation. Finding a date where all parties are available, including counsel and the mediator, can take some time. However, the time used to coordinate schedules and find a date for mediation, and the time leading up to mediation, provides the parties with an opportunity to strengthen their case. Your lawyer may consider obtaining another expert opinion or gather further evidence to support your case.

Approximately 50-60% of personal injury cases settle during mediation. If your case doesn’t settle at mediation, the parties will typically set the matter down for trial.

If a case is set down for trial, there are still other opportunities to reach a settlement, including discussions between counsel, a second mediation, and a pre-trial conference.

Preparing for Trial

Once the case is set down for trial, it may take a few months for the court to return with possible trial dates. Trials are typically being scheduled as far as 2 years from the date the matter was set down.

Although this stage in the litigation process may be lengthy, the parties can still engage in settlement discussions.

Approximately 3 months to 1 year prior to the trial itself, parties will participate in a Pre-Trial Conference, which is another opportunity to settle the case prior to trial. A pre-trial conference, also known as a settlement conference in Small Claims Court, is a meeting between a judge, each party involved in the lawsuit, and their respective lawyers. The primary goal of this conference is to facilitate a settlement before the case goes to trial. During the conference, the judge ensures that all parties are prepared for trial and provides an opportunity for each side to gauge the strength of its case. The judge will offer their opinion on the case and assist the parties in reaching a settlement. If a settlement cannot be achieved, the judge will canvas issues relating to how the trial will proceed.

A trial in personal injury cases can take anywhere from several days to weeks, depending on the complexity of the case.

Delays and Considerations

Litigation is a complex and time-consuming process, but understanding the steps involved can help you navigate it more effectively. A personal injury case can take anywhere between 2 months to 8 years to complete, as it can settle at any stage of the litigation process or proceed through to trial.

However, in addition to the inherent lengthiness of the litigation process, parties should be prepared for delays due to external factors such as court scheduling, the backlog caused by COVID-19, and limited judicial resources.

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