This article sets out to explore the contents of a CTM lawsuit. Specifically we look at the plaintiff’s burden of proof, whether there is a case to answer against the defendant in respect of each complaint and, if so, by whom. The first part of this article looks at the issue of proof. The second part looks at whether there is a case to answer against the defendants in respect of each complaint.

A CTM lawsuit differs from most other civil actions in a number of ways.

In the majority of cases, plaintiffs have to establish the facts upon which their claim is founded. On the other hand in CTM cases, plaintiffs simply must establish a Prima facie case. So, basically it is up to the plaintiff to prove that they were injured in some way. Primarily, they do this through their own evidence; but they may also use expert testimony.

Often, the burden of proof turns upon the plaintiff. It is not enough just to have facts. The plaintiff must be able to provide ‘crystal clear’ evidence in support of their case. If it is not possible to do so then it is pointless to proceed.

Most plaintiffs will be happy to know that in court they do not always win. There are many factors involved.

The nature of the claim, the facts of the case, the defendant’s reaction to the claims made and more. The reality is that these claims can sometimes drag on for years.

To give an example, suppose the plaintiff had a slip and fall accident at work. The company records show that the plaintiff slipped and broke his arm. Assuming (correcting for the possible errors of transcription) that the injury occurred as a result of the employer negligence then there is probably a case that the defendant (company) has a duty to make good that injury.

Now suppose the same case was reversed and the plaintiff was awarded damages based upon the testimony of a reliable expert witness.

Again the nature of the claim would require that such an expert witness is able to testify as to the likely results of granting damages. Assuming (again correct for the possible errors of transcription) that this witness opined as to the likely result, then it is reasonable for the plaintiff to pursue that issue in court with a motion to quash. That is to say that if there is a reasonable likelihood that a reasonable person considering the case could reasonably reach a conclusion in favor of the plaintiff, then such a conclusion must be allowed to stand in the court.

Such cases are few and far between. Most plaintiffs who file such lawsuits are unable to obtain the required financial support upon winning the case. This often leads to an appeal to the circuit court. The courts tend to view plaintiffs as those with money who can simply go back on their advances and pay what is due to them. Such a view is not helpful to the plaintiffs’ cause.

As a result, the usual practice is for the plaintiff’s attorney to file a petition for summary judgment.

Such a motion to dismiss will ask the court to assume that the complaint properly names the defendant. It is then required to determine if it can safely move forward with the underlying litigation. If so, the court then issues an order to that effect. Such an order will prevent the defendant from denying its liability or denying the facts of the case.

However, if the plaintiff prevails in the underlying action, the plaintiff is required to repay all advances and attorney fees to the defendant. Such costs may be “tortious” (as they are likely to be). In most cases, it is also likely that the defendant will file an appeal to the court denying all claims of indemnification or deterrence of damages. Such cases are thus heard on their merits.

There is also the potential risk that the plaintiff will receive what it calls a “fault-based” motion.

Such a motion refers to a motion that asks the court to determine whether there is a genuine issue of fact for the plaintiff to raise. If the court finds that such an issue does exist, the plaintiff is required to dismiss the complaint. Such dismissal does not permit the plaintiffs to pursue their claim further unless they seek an injunction or damages against the defendant.

At this point, many plaintiffs would be content to allow the case to proceed based upon whatever information the courts find. Unfortunately, not all discovery is easy to obtain. Plaintiffs are often required to submit discovery through discovery to the defendants themselves. Discovery can be particularly difficult to obtain if the defendants deny participation in the litigation. As such, plaintiffs should be prepared to fight for their right to discovery. Otherwise, they may find themselves facing defeat before they even have a chance to present their case in court.