Trial

The information contained in this section is intended as general information to assist in understanding the trial process. This information is not a substitute for legal advice.

Preparing for trial

At the trial, the onus is on the Plaintiff, to prove their case in order for the Claim to succeed. Evidence is needed to support and subsequently prove the case. In the event that the Defendant has filed a Dispute Note and /or Counterclaim, the onus is on the Defendant to prove their case.

It is also important to recognize that the parties must be able to clearly communicate their version of events to the Judge; and the version of events must be relevant to the Claim. Often parties put a lot of emphasis on issues or matters that are self-serving and not directly related to the Claim. Each piece of evidence and statement used to tell your version of events should serve a purpose in support of your Claim.

The following outlines the kinds of evidence which may be needed to prove the type of claim filed:

  1. Contract – If you are suing on a contract you have made, or a debt you are alleging as the result of a contract, you must prove:
  • that there was a contract;
  • what the details of the contract are;
  • how the contract was broken by the Defendant; and
  • the exact amount of money you are suing for and how you arrived at that amount.

The most important evidence would be a written contract, however, contracts can be formed as follows:

  • in writing;
  • verbally;
  • implied by conduct; and
  • any combination of the aforementioned.

2. Debt – If you are suing for a debt, such as an unpaid loan, a bad cheque, or services rendered, you will need to prove:

  • the debt exists;
  • the amount of the debt; and
  • the debt is unpaid or only partially paid.

Preparation checklist for trial

The following is a general overview of the basic steps that should be followed to ensure you are prepared for trial:

  1. Review the Civil Claim, Dispute Note and/or Counterclaim
  2. Review all of the documentary evidence you have including the evidence provided by the other side.
  3. If you attended or participated in Mediation or a Pre-Trial Conference, review the related documentation and results.
  4. List all the points you need to present and prove to win your case.
  5. Know how you will prove your points.
  6. Have all your documents prepared and ready in a logical order with multiple copies.
  7. Contact any and all witnesses that are necessary to ensure they are prepared and will be in attendance.
  8. Prepare all of you questions for other witnesses in advance.  This includes questions that you may want to ask during cross-examination.
  9. Have a summary of your case prepared in a clear precise manner that has a logical flow and order.
  10. Always arrive at Court early to ensure you are on time.

Courtroom etiquette

Normally the Court Clerk will give some basic instructions to the parties before the Judge enters the courtroom. Below is a list of proper etiquette for the Courtroom:

  • Always stand when the Judge enters or leaves the courtroom.
  • Always stand when speaking to the Judge.
  • Always address the Judge as sir/madam or your honour.
  • Dress respectful. Do not wear hats, sandals, shorts, or sunglasses.
  • Do not chew gum.
  • Speak clearly.
  • Do not be disrespectful to others.
  • Do not interrupt others when they are speaking.
  • Do not refer to others in a derogatory or rude manner.
  • Do not roll your eyes, shake your head or exhibit `gaffes’
  • Maintain professionalism at all times.

The trial process

When the Judge calls your name or case, go to the front of the courtroom and take your position. The Judge should be informed of all witnesses present and will request that they leave the courtroom until they are required to give testimony. If a witness is also a party to the action they are permitted to remain in the courtroom through the entire process.

Each party will be given the opportunity to present their case and to cross-examine the witnesses for the other party. Questioning witnesses happens in the following way:

  • Examination – You ask your witness questions to bring out what they know about the matter.  Questions for your witness should be prepared before the hearing and should be as short and simple as possible. Remember that you must ask questions, not just make statements.  If you are represented by counsel or agent, they will ask questions of you.
  • Cross-examination – The other party asks your witness questions.  The purpose of cross-examination is to bring out inconsistencies or missed facts in the witness’ evidence.  When a witness is being examined, making notes will help you to cross-examine.  You do not have to cross-examine.
  • Re-examination – you have the opportunity to ask your witness to elaborate on statements made during the cross-examination.  Only questions related to what the witness said during cross-examination are allowed.  No new facts may be brought in.
  • Summation – Both the Plaintiff and the Defendant briefly outline their cases.

Decision of the Court

The Judge will make a decision at the trial or at a later date on the weight of the evidence presented in court and on an assessment of the credibility of the witnesses. Often the Judge will explain the decision in detail.

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