Based on recommendations, find a lawyer, a litigator who has strong real estate knowledge. Meet with them and discuss the merits of pursuing a case. Not all lawyers are the same, if you do not know who to turn to ask your real estate lawyer or another professional for a recommendation.

In many cases, when the parties are not dug into strong positions it will be cheaper to negotiate a settlement. A professional mediator or arbitrator can be retained and costs can be kept reasonable. As well, settlement can be reasonably quick, while court cases take a long time to get heard.

For a good reference to the litigation process use this link to the Ontario Ministry of the Attorney General.

This is where the legal process gets complex and takes months or years. The parties dig for facts, they mine evidence, ask for details and review case law.

 The parties are “discovered” which is a semi-formal process where the parties are sworn in, a court reporter records every word and the lawyer for the other side goes through an exacting questioning period, a probe of the case and what the parties know. Each person involved in a case is discovered and although not as formal as court it can be a nervous time for a party to the lawsuit. Those testifying are usually under oath.

 The lawyers may ask for missing documents, more extensive documentation and that can include today’s email. All correspondence, including diaries, etc., can be requested to be produced.

For real estate litigation the usual process is trial by judge only. Ontario is privileged to have fine judges but remember, a judge was a lawyer and although now on the bench their previous career may have been outside of real estate. Newer judges may not have extensive real estate experience and therefore they are going to rely on the experts to guide them.

 Justice: It has been said that people should not expect justice in a courtroom. Not that judges will not render the right verdict but they cannot compensate for the anger, the emotional turmoil that brought a matter to court. Those who use the trial process to get “their day in court” to punish the offending party can find that after spending a lot of time and money, they don’t necessarily end up with the result they wanted.  Judges deal with facts, not emotion.

 Alternatives: I am strong advocate of mediation or arbitration. You get to choose the party who will act and they will have an established real estate background. They know the business and many times are more expert than the expert witnesses. As well, you can arrange for a hearing in a relatively quick manner. For less than complex cases a mediation or arbitration can be set for within two months. For more complex cases where expert witnesses will be needed one must wait for the experts not only to prepare and finish their reports but for the parties to exchange reports and do reviews.

 In mediation the mediator does not make decisions, he guides the parties to negotiate and come to a mutual decision. This process can fail if both parties are not in agreement to compromise and make it work.

Arbitration is more clear cut. The arbitrator is selected because of their expertise in real estate. The arbitrator acts more or less like a judge but with a little less formality. The arbitrator will swear in witnesses and can issue orders for parties to appear.

A major positive to these alternative methods is the results are private and not published. As well, costs are far less and time is saved.

For arbitration and mediation, go to the website for the ADR Institute of Canada.

 

This refers to the documentation that sets out the case from each side. The Plaintiff, the person making the claim has the complaint set out and this is not a task for the layman.

The Answer: The Defendant responds and answers each claim made against them. Some answers may be simple, Yes, No. Others can be more elaborate. They may also request that the court dismiss the case against them.

They will produce reports on their area of expertise. Some cases require engineers, forensic accountants, environmental experts, appraisers, Realtors, to name just a small possible group. Costs rise as experts are hired.

 Experts can also be called for discovery.