Commercial
Disputes

Commercial Litigation

Parties to a commercial dispute may include anyone involved in contractual or other business disputes. Commercial disputes often arise between shareholders, parties to the sale of a business or commercial real estate property, debtors and creditors, and landlords and tenants under a commercial lease, among many other types of commercial disputes.

Types of Commercial Disputes that Can Benefit from Representation by a Commercial Litigation Lawyer

Parties would be wise to retain the services of an experienced commercial litigation lawyer when involved in complex commercial disputes, including any of the following:

• • Minority shareholders corporate oppression allegations;
  • Claims about the enforceability of non-competition and non-solicitation restrictions in a purchase and sale agreement;
  • Remedies for breach of loan and other financing arrangements;
  • Disputes about directors’ obligations and share conversion agreements;
  • Allegations of directors’ conflicts of interests and breach of fiduciary obligations;
  • Claims of breach of contract in supplier relationships, and
  • Renovation and construction claims.

The Commercial Litigation Process

Commercial litigation is a court process for adjudicating a dispute. The final step in the litigation process is a trial (unless the case is settled before that). After a trial is concluded, the trial judge makes a decision about the claim and defence. If the claim is successful, the trial judge may award damages.

The major phases of the commercial litigation process are:

• internal investigation and evaluation by each side and their lawyer of the key facts, evidence and legal issues in the dispute;
• commencing the case in court or defending the case – pleadings (claim, defence/response and, if applicable, counterclaim);
• discovery of the evidence (including out of court witness examination/questioning), court applications/motions to resolve procedural disputes (such as disputes about steps, timetables, production of documents, etc.);
• trial.

What Law Works Brings to The Table

We have deep and wide-ranging experience representing parties in corporate and commercial disputes in litigation, including mediations, hearings and appeals. We vigorously protect our clients’ rights and are savvy advisors around the boardroom table in all areas of corporate/commercial disputes.

Our principal and founder, Ben Hanuka, has over two decades of experience as a commercial litigator. For many years before launching Law Works in 2012, Ben led a successful career in downtown Toronto, at a mid-sized firm, followed by a boutique litigation firm.

Scope and Cost of Litigating a Commercial Dispute

The scope and cost of a commercial litigation dispute can vary significantly depending on the following factors:

• the complexity and importance of the facts, evidence, and legal issues in the dispute;
• the amounts in dispute;
• the complexity of the proceeding;
• if there are related proceedings;
• the number of procedural steps that have to be taken or that the opposing party takes;
• any party’s denial of or refusal to admit anything that should have been admitted;
• the conduct of any party that tends to shorten or lengthen unnecessarily the duration of the proceeding, and
• any other relevant factor that can affect the legal fees or overall costs of the litigation.

The following is a general outline of the scope of possible steps that may be involved in a commercial litigation case. It is provided solely for informational purposes as a general rough outline of what to expect when pursuing or defending a commercial dispute through court litigation.

This general outline is provided subject to the following conditions:

1. This scope is general. It is not specific to any particular case. It is intended to provide a general sense of what steps and effort possibly may be involved in a case. Therefore, it is not intended to be read or relied on as legal advice.
2. Any particular case may include some or all of the steps listed below, or additional steps not listed below.
3. Each legal case is unique and will have its own circumstances. Each case will result in different fees and overall costs, depending on many factors, including those listed above.
4. This general scope is subject to change without notice.

Notices – Claim and Response

Scope of pleadings:

• 1-3 days principal, associate lawyer, and litigation clerk.

Key activities include:

• Analysis of key facts in the dispute (initial analysis, to be refined as more evidence becomes available).
• Analysis of additional facts about key events to draft either a statement of claim or a statement of defense (for fulsome cases).
• Drafting statement of claim or statement of defence.
• Initial correspondence with opposing counsel about procedure (for summary proceedings)

Discovery (as agreed in the Discovery Plan between the parties’ lawyers)

The following is a fulsome set of discovery steps. The discovery phase in a litigation proceeding will vary widely based on the nature of the case, the parties’ agreement on how to most effectively streamline the discovery phase.

As a result, some or all of these steps may be significantly different, possibly more limited, depending on the litigation case.
There are usually three to four phases in discovery.

Discovery Phase 1: Planning and Preparation

Scope of Phase 1:

• ½ day to 1 ½ days principal or associate lawyer
• 3 days litigation clerk.

Key activities include:

• Preparing Documentary Productions – compiling and producing all evidence in the clients’ possession control or within their power relevant to any issue in the case (and providing to opposing counsel).
• Preparing Discovery Plan.
• Analyzing the other party’s Documentary Productions for deficiencies.
• Communications with the other parties about scope of Documentary Productions of each side.

Discovery Phase 2: Witness Examination/Questioning

Scope of Phase 2:

• 4 to 5 days principal or associate lawyer
• Plus time by litigation clerk.

Key activities include:

• Preparing for and conducting witness examinations/questioning plus preparation and discussions.
• Preparing clients for, and attending, their witness examinations/questioning plus preparations and discussions.
• This can include disbursements for court reporter charges at addition cost for attendance at the examination/questioning or preparation of transcripts of witness examinations/questioning.

Discovery Phase 3: Answering Undertakings Given at Witness Examination/Questioning

Scope of Phase 3:

• ½ day to 1 ½ day principal (and associate lawyer where needed)
• 1 ½ days to 3 days litigation clerk.

Key activities include:

• Answering undertakings given at examinations/questioning for discovery to provide further evidence.
• Reviewing the other side’s answers to undertakings.
• Dealing with refusals given by each side at examinations for discovery.

Discovery Phase 4 (if applicable): Resolving Disputes About Documentary Productions or Refusals

Scope of Phase 4:

• 1 to 4 days
• Principal or associate lawyer and litigation.

Key activities include:

• Disputes about scope of Documentary Productions and refusals given at examinations/questioning for discovery.

This can include disbursements at additional cost for:

• filing fees (pleadings, motions, etc.)
• process server charges.

Mediation

Scope of mediation:

• 1 ½ to 3 days principal (and associate lawyer where needed)
• ½ day to 2 days litigation clerk.

Key activities include:

• Preparing mediation brief and attending one day mediation session.
• Meditator’s fees are charged at additional cost.

Note: mediation can take place at any time in the litigation process, typically after the Discovery phases.

Motions, Applications/Case Conference

Key activities include:

• These can take place at any point in the litigation process.
• Case conferences are with opposing counsel and a judge.
• Standard motion/application/application: 1-5 days*
• Injunction motions or motions for summary judgement

* This includes time for preparing for and attending witness examinations/questioning which can be significant.

Pre-Trial

Scope of pre-trial:

• ½ day to 1 day principal or associate lawyer
• Up to ½ day litigation clerk.

Pre-trial takes place after all previous stages have been completed.

Key activities include:

• Preparing pre-trial brief summarizing our position and the evidence that we intend to present at the trial.
• Attending pre-trial conference with judge and opposing side to review the case and ensure all steps in the litigation process have been completed and that the case is ready for trial.

Trial – this scope is for a 10-Day trial

Scope of a trial:

• Preparation and trial attendance
• 19 days to 25 days principal and associate lawyer
• 6 to 10 days litigation clerk.

Key activities include:

• Preparing all evidence and exhibits for the trial, lining up witnesses, and preparing legal arguments and submissions.
• Prepare for trial.
• Preparing opening submissions, witness examinations, closing submissions.
• Attending trial.