Commercial Litigation Explained

What is Commercial Litigation?

Commercial litigation is a form of civil action meant specifically to resolve business-related disputes.  There are many explicit laws regulating business activity and allowing businesses to seek damages and relief.

Some examples of laws forming the basis include the:

• Ontario Business Corporations Act
• Canada Business Corporations Act
• Ontario Partnerships Act
• Ontario Sale of Goods Act

It is also the way to pursue damages and relief for business-related torts, including:

• breach of contract
• intentional interference with economic relations
• breach fiduciary duty
• confidentiality breach
• enforcement of intellectual property rights
• intentional interference with economic relations; and
• fraud

Commercial litigation is the way businesses can enforce their legal rights and pursue damages against individuals or other businesses. Civil litigation in general is broader and can be between individuals for a variety of reasons but are not business-related.

However, the steps in the commercial litigation process can be the same as most civil litigation.

Facing a commercial dispute? Contact Achkar Law now for effective legal solutions and resolution strategies.

What Is a Litigation Lawyer?

A litigation lawyer is a legal professional specializing in resolving disputes through the court system. Specifically, a commercial litigation lawyer is well-versed in handling conflicts that arise within the business realm. Their expertise extends to navigating the complexities of commercial disputes, ensuring a strategic and lawful resolution.

What Are the Steps in Commercial Litigation?

Civil litigation in general sets out procedural steps in the Ontario Rules of Civil Procedure. Based on these general rules, the 5 basic steps involved:

• Exchange of Pleadings
• Examinations for Discovery
• Mandatory Mediation (Toronto, Ottawa, and Windsor-Essex)
• Pre-Trial Conference
• Trial

Exchange of Pleadings

The exchange of pleadings involves one party starting the process by filing, issuing and serving a statement of claim or by application. The other party then serves their defence or response. In some cases, the suing party can also serve and file a reply to address any new facts raised in the defence.

Examination for Discovery

The examination for discovery process is where the parties exchange documents and question each other for admissions relevant to the litigation.

Mediation

If your commercial litigation takes place in Toronto, Ottawa or the Windsor-Essex court regions, you have 180 days from the first filing of defence to set the matter down for mediation. This is a process where a third-party neutral facilitator tries to help the parties settle their litigation before trial.

Pre-trial Conference

After discoveries and mediation, the suing party can file a trial record to set the litigation for trial.  After a party files the trial record, the court will then schedule a pre-trial conference.  It is like mediation except there is a judge acting as the neutral facilitator. If the parties do not settle at the pre-trial conference, the court then schedules a trial date.

Trial

The final step in commercial litigation is a trial or hearing for resolving the business dispute. The parties prepare their legal arguments, make their submissions, present their evidence, and allow a jury or judge to make their decision. Those decisions may be subject to appeal, but once all appeals are exhausted the decision is final.

Despite how similar commercial litigation can be to standard civil litigation, there can be differences in the process in some cases.

Commercial Litigation Differs from Civil Litigation

Commercial litigation has a unique advantage that other civil litigation does not – specialized judges and expedited proceedings. The Ontario Superior Court of Justice established a specialized Commercial List in 1991 comprised of specialized judges who can assist with managing complex commercial litigation.

Commercial litigation set down on the Commercial List is subject to specific procedural rules and practice directions aimed toward faster commercial litigation. Some involve significant stakeholder interests requiring prompt and specialized decision making.

Parties can usually volunteer to set their case down on the Commercial List. Despite the availability of the Commercial List and its expedited proceedings, commercial litigation does not always need to be pursued fully to trial.

There are alternatives to commercial litigation that can achieve favourable results quicker.

Alternatives to Commercial Litigation

Commercial litigation is typically used together with negotiation to arrive at a resolution before trial. Parties can settle their matter at any point in the commercial litigation process.

Before going straight into commercial litigation, you can send a demand letter to the other side stating your legal position and propose an offer to settle the commercial dispute. If negotiations fail at this stage, the party making the demand can start commercial litigation while continuing to negotiate.

Most modern commercial contracts specifically allow or require all related disputes to be resolved by alternative dispute resolution processes. Examples include mediation, arbitration or a mix of the two.

Mediations are voluntary negotiations with a neutral facilitator helping the parties resolve their dispute. The mediator is only there to help the parties agree on the terms of the settlement, not to render a binding legal decision.

Arbitration on the other hand is more like a quicker and private court – it is not open for the public to attend like regular court cases are. The parties would submit to the authority of an arbitrator to make a final binding decision. Like a regular trial, the parties would make their case to the arbitrator.

The arbitrator then decides the dispute, subject to limited appeal to the courts.

Deciding on what to do before or during commercial litigation might seem straightforward, but seldom is. Whether you are negotiating or going through high-stakes commercial litigation, having an experienced commercial litigator advocating for your business interests and providing tactical legal advice is key.

Why Hire a Commercial Litigator?

The commercial litigator has the unique experience and knowledge needed to maximize your business’ best interests for their commercial litigation. A commercial litigator understands the substance of the business dispute itself and every procedural step needed to achieve the desired result.

Knowing the law and the legal process is what will help you achieve your desired result in your commercial litigation. The sooner you consult and retain a commercial litigator, the more opportunity you provide them to help you make strategic decisions. In turn, the litigation lawyer will help you lower your risks and increase your likelihood of success.

When you are dealing with stakes in the hundreds of thousands of dollars or more, entrusting a legal professional to advocate and guide you through the commercial litigation process is imperative. Just as you would not have an plumber design a bridge or an accountant work on your teeth, the cost significantly surpasses the potential benefits in such high-stakes situations.

Conclusion

Commercial disputes are almost inevitable in the modern business world. When you need to escalate that dispute to legal action, you can start commercial litigation. This process is similar to the civil process but can be placed on the Commercial List to have it resolved in a prompt and cost-effective manner.

You can also resolve your commercial litigation at the early stages of the dispute, or throughout the process using alternative dispute resolution processes. You can use straightforward negotiation or mediation to help settle your matter, or arbitration to render a binding decision privately instead of trial.

No matter how you look at it, consulting and retaining a commercial lawyer to assist with your business disputes lowers your risks and increases the chances you will succeed.

Take Control of Your Business Dispute with Achkar Law

Facing a corporate commercial dispute can be daunting, especially when substantial financial interests are at stake. At Achkar Law, we  provide strategic solutions for businesses navigating the complexities of commercial litigation.

Our seasoned team of commercial litigators understands the intricacies of corporate conflicts, offering you:

• Tailored Insight: In-depth understanding of diverse commercial disputes without the jargon.
• Strategic Advocacy: Crafting a personalized approach to address your unique situation.
• Timely Resolution: Navigating the legal process efficiently to secure a swift resolution.

Why Choose Achkar Law?

When your business is on the line, the right legal support is crucial. At Achkar Law, we have a proven track record of successfully guiding businesses through challenging disputes, ensuring their interests are protected.

Ready to Safeguard Your Business Interests?

Do not let a commercial dispute jeopardize your business. Contact Achkar Law today and empower yourself with the advocacy and experience needed to secure a favourable resolution. Our team is here to navigate the complexities of commercial litigation on your behalf.

Take the first step towards resolution – reach out to Achkar Law now.

Toll-free at 1 (800) 771-7882
Email us at [email protected]

For further readings on this topic visit our Corporate Commercial Litigation Hub.