There are two types of lawsuits in the court system. The usual lawsuit is one commenced by a statement of claim and is called “an action.” This type of lawsuit requires the opposing side, the defendant, to file a statement of defence. Once these “pleadings” are exchanged, the parties provide each other with documentary disclosure by identifying what documents they have in their possession relevant to the material facts in the case. The identification of documents comes in the form of a sworn affidavit of each party listing the documents called an affidavit of documents.
The next stage in the action is an oral disclosure session called an examination for discovery. The parties conduct an oral questioning of each other to discover what evidence will be relied upon at trial. This examination takes place in an office setting without a judge present. But the examination is conducted under oath and is similar to a court examination of a witness.
All actions must have a pre-trial conference before they proceed to trial. The purpose of the pre-trial conference is for a judge to give an opinion on the merits of the claim and defence and to encourage settlement. The vast majority of civil lawsuits settle before trial to avoid the legal expense involved in going to trial. The pre-trial judge is disqualified from hearing the trial. If there is no settlement, there will be a trial with the presentation of viva voce evidence of witnesses to determine who wins and who loses.
The second type of lawsuit in the court system is called an application. The main difference between an application and an action is that an application does not have a trial with vive voce evidence of witnesses. The reason for this is that an application only deals with cases where there are no material facts in dispute. For example, applications are suited for determining the rights of individuals when they depend on the interpretation of a document, such as a deed, a will, or a contract. An application is determined by the court solely on evidence set out in affidavits and cross-examinations on affidavits. All of the evidence is on paper. There are no live witnesses. Applications are, therefore, summary in nature and cost effective. It is a good procedure to use to get a legal matter decided quickly if it meets the test that there are no material facts in dispute.