Overview of Canadian Court Process

Canada is governed by two different legal systems: common law and civil law. In the common law system — used in all provinces and territories except for Quebec — the courts interpret the meaning and application of legislation and thereby develop the law, rather than relying on government legislation alone. Court decisions set precedents for future decisions in similar cases. The common law system is based on the term stare decisis, meaning “to stand by decisions” and on the hierarchy of courts; higher courts’ decisions are binding on lower court judges. Common law is subject to the Constitution Act, 1867 and the Canadian Charter of Rights and Freedoms. The civil law system — used only in Quebec — is based on the CCQ. Under this system, the CCQ is the primary source of law and court decisions are used as guides on how to interpret the CCQ. That said, the common law system has had a strong influence in Quebec, and previous decisions are often treated as authoritative with respect to their interpretation and application of the CCQ. In Quebec, there are no jury trials for civil matters.

1.2 Pleadings

In civil actions in Canada, the nature and scope of the dispute that a court will resolve is defined by the pleadings filed by the parties to the dispute. Pleadings are a concise statement of the facts that each party must prove to the court to establish its respective position. The plaintiff is required to plead all of the facts necessary to establish a valid cause of action against each defendant, and each defendant is required to plead all of the facts necessary to refute that cause of action. The pleadings are intended to define the facts and issues that will be relevant at trial.

1.2.1 Commencing Proceedings

To commence a civil action, an originating document must be filed with the court and served on the opposing party. The Rules of Court in each common law province and Code of Civil Procedure (CCP) in Quebec set forth the specific form required. Most provinces require that an action be commenced by way of a Statement of Claim (in Quebec, an originating application) setting out the particulars of the claim and the relief sought.

A more skeletal originating document — namely, a Notice of Action — is permitted in New Brunswick and Ontario. A Notice of Action gives a general notice of the claim. Pursuant to the Rules of Court, a Statement of Claim is either appended to the originating document or filed and served at a later date.

1.2.2 Statement of Defence

After being served with a Statement of Claim, each defendant has a certain number of days to deliver a formal legal response (generally called a Statement of Defence) to the Statement of Claim. If the Statement of Defence is not served on the plaintiff and filed with the court by the applicable deadline, the plaintiff may be able to apply to the court for default judgment against the defendant without any further notice to the defendant. See section II, 1.5.1 “Default Judgment.”

If the defendant has a claim for relief against the plaintiff, the defendant can file a counterclaim against the plaintiff. The defendant can also make claims against other defendants in a cross-claim, or the defendant can join other parties in the action by way of a third-party claim or, in Quebec, an action in warranty. See section II, 1.2.4 “Joinder of Parties.”

1.2.3 Amending Pleadings

The Rules of Court in each province generally permit parties to amend pleadings. However, there are significant differences pertaining to the timing and method of making such amendments. Leave of the court may be required in certain circumstances.

Generally, a party has the right to amend its pleading before the close of pleadings (typically defined as after all parties have filed their pleadings and the time for a reply has expired). In certain provinces, the opposing party may apply to the court to set aside such amendments. In other provinces, unless the amendment necessitates the addition, deletion or substitution of a party, the amendment is generally allowed without leave. In British Columbia, for example, parties are permitted one free amendment before the notice of trial is served, after which they will need leave of the court or consent of the other parties.

1.2.4 Joinder of Parties

Under the Rules of Court in the common law provinces and the CCP in Quebec, the court may add or substitute a person as a party to a proceeding where (1) that person ought to have been joined as a party, or that person’s participation in the proceeding is necessary to ensure that all matters in the proceeding are effectively adjudicated or (2) it is just and convenient to do so. Thus, the court has discretion to join not only “necessary parties” but also parties where there is a common question of law or fact arising in the proceeding, the claim to relief arises from the same transaction or occurrence, and it appears that joinder may promote the convenient administration of justice.

The Rules of Court in many provinces provide that the court may relieve parties from the requirement of joinder. Such relief may be granted if it appears that the joinder of multiple claims or parties may unduly complicate or delay the hearing or cause undue prejudice. Relief may take the form of separate hearings or an order that a party be compensated for having to attend — or be relieved from attending — any part of a hearing in that the party has no interest.

1.2.5 Joinder of Issues

A party may join several causes of action against the opposite party in the same proceeding.

1.3 Discovery Process

1.3.1 Particulars

The Rules of Court in the common law provinces and the CCP in Quebec set the requirements for pleadings in a proceeding. If a pleading fails to provide the information necessary for the case to be met or a pleading is vague or overly general, a party may demand “particulars” of that pleading. Particulars provide a more detailed explanation of the facts or legal issues of the claim. If the opposite party fails to provide particulars within a given time, a motion may be brought asking the court to order that particulars be delivered.

1.3.2 Discovery of Documents

After pleadings have been exchanged, parties to an action in common law provinces are required to exchange a list of all documents in their possession, power or control that are relevant to the issues raised in the pleadings, with the exception of privileged documents. In some provinces, these materials are accompanied by an affidavit of documents sworn by a representative of each party.

The definition of “documents” in Canada includes paper documents, emails, computer files, tape recordings, videos and electronic media. The definition of “relevance” is also broad.

The opposing party is entitled to receive a copy of every document contained in the list of documents that is not privileged. Privileged documents are generally those created for the purpose of giving or receiving legal advice (“solicitor-client privilege”) or mainly in anticipation of litigation, even if no lawyer is involved. In the former case, where legal advice of any kind is sought from an individual in their capacity as a professional legal advisor, the confidential communications relating to the giving or receiving of that advice are permanently protected from disclosure, unless the client waives such protection. Solicitor-client privilege extends to communications in any form but does not extend to facts that may be referred to in those communications if they are otherwise discoverable and relevant. While they are not provided to the other side, privileged documents are to be separately listed in the list of documents.

If a third party holds relevant documents, any party to an action may bring a motion seeking an order requiring the third party to produce such documents for inspection. Again, there is an exemption for privileged materials.

With certain limited exceptions, the parties to an action are not permitted to use the evidence or information elicited from documentary discovery and discovery by oral questioning from the other parties to the litigation for any purposes, other than for use in the court proceeding for that the evidence was obtained.

E-discovery can be time-consuming and expensive. That is especially the case in litigation resulting from large or complex projects or transactions, where relevant electronic documents can number in the millions. In an attempt to make e-discovery more manageable, the Ontario Rules of Court have adopted the Sedona Canada Principles Addressing Electronic Discovery, which are now in their third edition. The Sedona Canada Principles encourage parties to cooperate in establishing a joint discovery plan that defines the scope and process of e-discovery, such as by implementing document-coding protocols and the use of technology-assisted review. The overarching purpose of the Sedona Canada Principles is to ensure that the e-discovery process is proportionate to the nature and amount involved in the litigation.

1.3.4 Examinations for Discovery

Following the exchange of relevant documents, the parties are entitled to conduct an examination for discovery of the opposing party. This process may be called “questioning” in certain provinces, such as Alberta. As with other aspects of civil procedure, each province has different rules about the availability and scope of examinations for discovery in an action. In some provinces, such as Ontario, there is no automatic right to conduct a discovery of more than one representative of a corporate litigant, nor is there an automatic right to conduct discovery of persons who are not parties to the litigation; a party must obtain leave of the court to do so.

The discovery witness produced on behalf of a corporate litigant must inform themself of the corporation’s knowledge. If the witness does not know the answer to a specific question, the witness may be required to make inquiries and provide the answer at a later date in writing. For example, a corporate representative may be required to find out what another corporate employee said or did with respect to a particular issue. In complex cases, it is common to have numerous requests to provide information and documents.

With certain limited exceptions, such as when information is deemed privileged, the person being examined must answer every question at the examination for discovery. All answers are taken under oath or affirmation in the presence of a court reporter; no judge is present. The examination typically takes place in an office setting. The party asking the questions may use the transcript from the examination later at trial.

Before a party can serve a notice of examination, the party must have delivered its list of documents that it will conduct examination for discovery on unless the parties have agreed otherwise. Conducting examinations for discovery can be a lengthy and expensive step in the litigation, and many cases settle at this stage in the proceeding. Some provinces, such as Ontario, Quebec and British Columbia, have a limit on the length of time for an examination of discovery. This period can be extended by consent or court order.

In Quebec, a defendant may examine the plaintiff — or the representative of a corporate plaintiff — either before or after the filing of the defence, while the plaintiff will usually examine the defendant — or the representative of a corporate defendant — only after the filing of the defence, to ensure the efficiency and proper management of the proceedings. During these examinations, the plaintiff may seek the communications of documents to be provided as undertakings at a later date. Examinations of third parties may only be conducted with the consent of that third party and that of the other party to the proceeding, or with leave of the court.

1.3.5 Examinations Before Motion or Trial

In addition to provisions governing examinations for discovery, most provinces also have provisions that permit oral examinations of witnesses out of court, with leave of the court or consent of the parties. Attendance can be required by summons, which may also require the person to bring all relevant documents in their possession to the examination.

As with examinations for discovery, examinations of witnesses before motion or trial are conducted under oath or affirmation in the presence of a court reporter, typically in an office setting. The transcript is used at the motion hearing or at trial.

On interlocutory motions, counsel argue their respective positions based largely on evidence put forward in affidavits that may be tested by cross-examination. Most Canadian jurisdictions use privatized court reporting services so that cross-examination of affiants occurs at a law office rather than in the courthouse.

Interlocutory motions are often brought to:

Determine whether the court should assume jurisdiction over the matter in issue
Compel a plaintiff to post collateral as security for a defendant’s litigation costs where it appears likely that the plaintiff will be unable to pay the defendant’s allowable costs, if unsuccessful
Strike out a party’s pleadings, or request another form of relief, where that party has failed to meet procedural requirements in the action
Consolidate multiple actions where there are common facts and issues that ought to be dealt with together, or split one lawsuit into multiple actions where the opposite is true
Enforce the Rules of Court and other procedural protections by, for example, compelling a party to attend a cross-examination or examination for discovery, answer questions or provide requested records that are likely to be helpful in the litigation
Oversee court-supervised processes, such as the appointment of a receiver, receiver-manager or liquidator
Dispute a judgment or a step taken without providing appropriate notification to parties adverse in interest

In most cases, Canadian counsel tend to be courteous and respectful in the courtroom, while advocating their client’s interests as compellingly as possible.

1.4.2 Injunctions

1.4.2.1 General Test

An injunction is an order of the court impeding the commission or continuance of a wrongful act, restraining a pending or existing breach of contract or seeking to preserve rights or assets pending the outcome of litigation. Injunctions prohibiting a party from undertaking or continuing certain conduct are the most common type of injunction. However, injunctions may also impose an obligation on a party to undertake or continue to act in a certain manner.

Since the court is asked to restrict the legal rights of another party, applying for and obtaining injunctive relief is a complex process and the requested relief will only be awarded in circumstances where the party seeking the injunction can demonstrate all of the following:

There is a serious issue to be tried: The court will generally assess the merits of the case on a preliminary basis to determine that the claim is not frivolous or vexatious.
Refusing to grant the requested relief will cause irreparable harm to the applicant’s interests: “Irreparable” in this context means that the applicant must convince the court that the resulting harm is probable and of such a nature that it cannot be remedied by monetary damages.
The “balance of convenience” favours granting the injunction: The court must compare the parties’ respective interests, weighing the alleged “harm” to the applicant if their interests are not protected against the effect on other parties if their legal rights are restricted in the manner sought.

Injunctions are an equitable remedy. As such, they are discretionary in nature. In deciding whether to grant an injunction, a court must consider the overall context in which the application is made and determine whether granting or refusing to grant an injunction would be fair in the circumstances. The court may decide that injunctive relief is not appropriate if, for example, it appears that:

The applicant has caused delay or otherwise does not claim relief in good conscience
The applicant has a lesser right to protection than third parties who may be affected by the injunction
The injunction would result in unjustifiable hardship to the respondent
The injunction would not be in the public's best interest
The injunction would, in effect, be a final determination of the matter

The injunction would, in effect, require the court to engage in continuing supervision of the parties’ business interests

1.4.2.2 Undertaking as to Damages

Injunctive relief is an extraordinary remedy with significant consequences if used inappropriately. As such, typically the applicant must give a meaningful undertaking to pay damages in the event that the injunction is granted but the litigation is ultimately decided against the applicant. Failure to honour such an undertaking may result in serious consequences associated with breach or contempt of a court order.

1.4.2.3 Mareva Injunctions

A Mareva injunction is a pre-trial order used in appropriate cases to prevent a defendant from “judgment-proofing” itself by dissipating or removing assets to a foreign jurisdiction. To succeed, the applicant must show a real risk of removal or dissipation of assets, as distinct from a mere apprehension or suspicion.

A court will only grant a Mareva injunction in the clearest of cases, and the applicant is generally required to provide an undertaking as to damages. Typically, a Mareva injunction application is brought without notice to the other parties and the applicant must establish:

A strong likelihood of success
Full and frank disclosure of any material facts of which the court should be aware in considering the application
Full particulars of the claim, fairly stating any points made by the defendant that speak against the applicant’s claim
A real risk that the defendant will move assets from the jurisdiction or dissipate them to avoid the possibility of judgment

Grounds for believing that the defendant has assets within the jurisdiction

1.4.2.4 Anton Piller Orders

Anton Piller orders are, in essence, a civil search warrant. The purpose of the order is to preserve evidence from possible destruction and recover property belonging to the plaintiff that may be necessary to prove the plaintiff’s case. Plaintiffs must apply for an Anton Piller order and if granted, the order must contain procedural protections for the defendant and go no further than is necessary to remedy the problem.

Upon obtaining an Anton Piller order, the plaintiff and their lawyers, who supervise the seizure process in their capacity as officers of the court, are permitted to enter the premises and search for and seize materials in the defendant’s possession. The court assumes custody of any seized materials.

In light of the extraordinary and interventionist nature of the Anton Piller order, the threshold for obtaining relief is even higher than for other types of injunctions. The element of surprise is usually necessary to accomplish the objective of preserving evidence, so the application is made to the court in a closed hearing and without notice to any other party. During the hearing, the court expects the applicant to fully disclose all relevant matters within its knowledge, including information that does not support the request. If the applicant fails to disclose any material facts, the court has broad discretion to decline the application.

To succeed in obtaining an Anton Piller order, the applicant must establish:

A strong likelihood of success
The damage, potential or actual, will be very serious if an order is not granted. “Damage” concerns whether the plaintiff will be unable to make its case at trial if the impugned materials are not available
The party against whom the order is made is actually in possession of incriminating documents or evidence
There is a “real possibility” that the party against whom the application is made may destroy, hide or abscond with the materials before the ultimate hearing. Since it is sometimes impossible for an applicant to produce direct proof in this regard, Canadian courts may be willing to infer a risk of destruction where the applicant can satisfy the court that the defendant has been acting dishonestly or in a suspicious manner. The court will not draw the inference lightly; evidence of dishonest or suspicious behaviour must be compelling

As with other requests for an injunctive order, generally, the applicant must provide an undertaking as to damages.

1.5 Summary Disposition of Matters by the Court Without Trial

1.5.1 Default Judgment

Throughout Canada, the Rules of Court in each common law jurisdiction and the CCP in Quebec allow a plaintiff to apply for a default judgment when a properly served defendant has not filed the necessary pleadings in response to the action following the expiration of the filing period. Default judgment applications generally do not require a court appearance. A default judgment can be obtained by filing the appropriate documents with the court, including proof of service and evidence demonstrating the defendant’s failure to file the appropriate response documents.

If the plaintiff’s claim is for a liquidated amount, the plaintiff can enter a default judgment against a defendant for a specific sum (not exceeding the amount of the liquidated amount), interest, if entitled, and costs. If the claim is for an unliquidated sum, such as general damages for pain and suffering, the court will issue a default judgment against the defendant for damages and costs in an amount to be assessed by the court at a later date.

While a default judgment is a final order of the court, a defendant is entitled to apply to set it aside in certain circumstances. Such applications are frequently granted when the defendant’s failure to file was not wilful or deliberate, the defendant’s application was made as soon as reasonably possible after learning of the default judgment and there is a defence worth investigating. Nevertheless, it is incumbent upon a party served with an action to respond appropriately and expediently.

1.5.2 Dismissal for Delay/Failure to Prosecute Action

Upon an application by a defendant, a court may dismiss an action if it determines there has been unreasonable delay. Typically, such a delay exceeds one or two years. However, the threshold can be longer depending on the province. An order dismissing a proceeding for want of prosecution can have severe consequences for a plaintiff; as such, it will not be made lightly. In particular, the order will not be made without giving the offending party an opportunity to remedy the default, unless the default was intentional or it gives rise to a substantial risk that a fair trial will not be possible.

For a party to succeed on an application to dismiss for delay, the law generally requires that the delay be inordinate and inexcusable and that the cause or likely cause is of some prejudice to the applicant. Given the nature of the application, Canadian courts in most jurisdictions have made this order difficult to obtain. It is not uncommon for applications to fail, even in the face of delays measured in years.

In Quebec, a plaintiff’s action is deemed discontinued if the plaintiff fails to file an inscription for proof and hearing of the action on the merits within six months from the date the case protocol is accepted. This delay is customarily extended by the court upon application showing valid reasons for the extension sought.

1.5.3 Summary Judgment and Summary Trials

1.5.3.1 Summary Judgment

Summary judgment rules enable a party to obtain judgment without a trial in certain situations. The party seeking summary judgment must prove there is no genuine issue requiring a trial.

Traditionally, summary judgment was only granted in very clear cases. However, the Supreme Court of Canada has stated that summary judgment is a tool that should be used to streamline dispute resolution and enhance access to justice and, as such, should be considered more broadly.

This evolving approach has now been codified in the Ontario Rules of Civil Procedure, which permit a judge on a motion for summary judgment to weigh evidence, evaluate the credibility of a deponent, draw any reasonable inference from the evidence or conduct a mini-trial to allow for oral evidence, unless it is in the interest of justice to reserve such powers for a trial. While some but not all other provinces have also codified similar changes, courts across Canada have generally agreed with the principle that summary judgment should be granted wherever possible.

There is no provision for summary judgment in Quebec’s CCP.

1.5.3.2 Summary Trial

A summary trial application is based on affidavit evidence, without the requirement for witness testimony. A party may apply to the court for judgment in an action or on any issue. The applicant, and each of the other parties of record, may adduce evidence to support or oppose the application by way of affidavit, answers to written interrogatories, answers to evidence taken on examinations for discovery, admissions and expert evidence. The evidence may also include the transcripts of any cross-examination taken of the various affiants. In Ontario, summary trials may include cross-examination and re-examination of witnesses, provided notice of such an intention is provided 10 days before trial.

On hearing an application under the summary trial rules, the court may grant judgment in favour of any party, either on an issue or generally, unless the court is unable to find the facts necessary to decide the issues despite the whole of the evidence presented, or the court is of the opinion that it would be unjust to decide the issues in the summary trial.

In provinces where courts will not find facts, make determinations of law and make credibility assessments on summary judgment motions, they are permitted to do so in the context of a summary trial.

There are limitations to the summary trial process. Courts will not hear such applications in circumstances where it would be unjust to resolve the issues finally without a full trial. In making that determination, the court will consider the amount involved, the complexity of the matter in issue, the urgency of the matter, the likelihood of prejudice from further delays, whether credibility is a key issue, the cost of proceeding to a conventional trial in relation to the amount involved and any other matters that may impact the fairness of the process.

There is no provision for summary trial in Quebec’s CCP.

1.5.4 Other Applications

1.5.4.1 Special Case

Parties to a proceeding may agree that a particular question of law or fact could substantially resolve their dispute. In such instances, most jurisdictions permit parties to state a question of law or fact in the form of a special case for the opinion of the court.

The special case is brought before a court and the parties set out the facts and documents necessary to decide the particular issue. With the consent of the parties, if any question in the special case is answered, the court may draw a reasonable inference, grant specific relief or order judgment to be entered.

1.5.4.2 Proceedings on a Point of Law

A point of law arising from the pleadings may, by consent of the parties or by order of the court, be set for hearing and disposed of at any time before the trial. Conducting a hearing on a point of law gives the court an opportunity to determine a question of law that goes to the root of the action, without having to decide issues of fact raised in the pleadings. However, such a hearing is only appropriate if a question arises as to whether a valid claim or defence can be raised by a party’s allegations, assuming they are true. The facts relating to the point of law must not be in dispute, and it must be possible to resolve the point of law without hearing evidence. In determining whether to conduct proceedings on a point of law, the court must consider whether resolving the question would serve the ultimate purpose of eliminating a claim insupportable in law, thereby saving time and effort.

1.6 Simplified Procedure

Some provinces provide a simplified court procedure for civil disputes involving less complex matters or smaller claims below a threshold amount. The purpose is to attempt to lower the cost of litigation by reducing procedural complexity.

In Ontario, for example, if the claim is for money, real property or personal property and if it is for C$200,000 or less, the “simplified procedure” is mandatory. Where the claim exceeds C$200,000, the action can proceed under the simplified procedure if the parties agree or if the plaintiff abandons the portion of its claim that exceeds the threshold.

Although the rules vary from province to province, the simplified procedure rules typically reduce the degree to which examination for discovery is available and provide for earlier trial dates.

1.7 Case Management and Pre-Trial Conferences

Most provinces, such as Ontario and British Columbia, have introduced special rules to manage the litigation process, including case management. Case management procedures are jurisdiction-specific and include an array of new and often shorter deadlines for the various steps in a proceeding. Case-managed proceedings are typically subject to a timetable established either by the parties' consent or by a judicial officer's order. Many jurisdictions require that mediation be attempted before going to trial. For these and other reasons, most civil and commercial cases in Canada are settled long before they reach trial.

Whether or not an action is subject to case management, if the action does not settle during its early stages and the trial date is approaching, the case will likely be brought before a judicial officer or a judge other than the trial judge for a pre-trial conference. The court may order a conference or a party to the proceeding may request one. The conference's purpose is to consider the possibility of settlement, simplify the issues for trial, determine the timing and length of trial, and generally assist in disposing of the proceeding.

1.8 Costs

1.8.1 What Are Costs?

In Canada, it is common for the successful party in litigation to recover from the unsuccessful party a portion of the expenses incurred in pursuing or defending the case. These expenses may include such items as lawyers’ fees and necessary expenses, such as expert reports and travel costs associated with various steps in the litigation.

1.8.2 Assessment of Costs

The courts of each province have guidelines for setting the amount of costs to be paid. For example, Alberta has a predetermined schedule that sets out a sliding scale for “party-party” costs, resulting in less than full indemnity in most cases. Ontario uses a tariff system with a scale of hourly rates based on the lawyer's years of experience.

In some circumstances, the court can award higher costs to sanction unfounded serious allegations, such as fraud or conspiracy, or to sanction a party who engaged in unreasonable behaviour. Most provinces encourage the parties to settle by establishing cost consequences for failure to accept reasonable offers to settle and imposing a higher costs award if a party unreasonably rejects a settlement offer.

Where disputes arise with respect to quantifying the costs to be awarded, including the reasonableness of disbursements being claimed, most provinces have a special dispute resolution mechanism in place, whereby the parties may appear before an officer appointed by the court to assess the costs.

In Quebec, costs orders are nominal and do not generally include counsel fees.

1.8.3 When Costs Are Payable

Generally, costs become payable following the outcome of a trial or court application. The court, however, has discretion to make costs related to interlocutory motions payable “forthwith” and without regard to ultimate success in the litigation.

Once costs have been awarded, the successful party has a right to be paid. However, as with any award of money granted by the court, the successful party may need to enforce this right through the available civil enforcement mechanisms.

1.8.4 Security for Costs

A defendant may apply to the court for an order requiring that the plaintiff provide security for costs before the trial. Although there are slight differences in provincial rules, security for costs is generally available when (1) the plaintiff resides or conducts business outside the province and has no assets within the province, (2) the plaintiff is a corporation or nominal plaintiff and there is good reason to believe that the plaintiff has insufficient assets in the province to pay the defendant's costs, or (3) the plaintiff's action is frivolous and vexatious and there is good reason to believe that the plaintiff has insufficient assets in the province to pay the defendant's costs.

An order awarding security for costs will generally require that a plaintiff pay a certain amount of money into court or provide a letter of credit to ensure that funds are available to satisfy an award of costs to a successful defendant. Failure to comply with such an order within the time required may result in dismissal of a plaintiff’s action. In rare circumstances, security for costs orders can also be granted in favour of a plaintiff against a defendant.

1.8.5 Costs in Class Proceedings

See section III, 1.5 “Awards, Costs, Funding and Counsel Fees” for a discussion of costs in class proceedings.

In most commercial cases, pre-trial procedures, including discovery, continue right up to the commencement of trial. Expert reports and responding reports must be delivered within established time periods before trial — typically, 60 to 90 days — for expert witnesses to be permitted to testify at trial. Other pre-trial notices are necessary for certain documentary evidence to be placed in evidence at trial without full formal proof. It is also common practice to deliver Notices to Admit, which require the opposing party to admit certain facts, within the weeks leading up to trial. The purposes of Notices to Admit are to narrow the issues and increase the cost risk to the opposing party if non-contentious facts are not admitted. Often supplementary examinations for discovery and exchange of documents for updating previous pre-trial disclosure also take place within a few weeks or days before the trial is scheduled to commence.

In most cases outside of Quebec, any party may ask for a jury trial by delivering a jury notice. However, juries are not available in certain cases, such as in family law matters, in claims against a municipality and in applications for certain forms of equitable relief. Parties in Canada rarely elect to have civil matters determined by a jury. Juries are occasionally used in personal injury and defamation cases. The court retains the discretion to strike out a jury notice and to require a trial by judge instead based on the complexity of the case or strong local prejudice.

1.9.1 Opening Statements

In most provinces, the plaintiff’s counsel presents an opening statement at the beginning of the trial. Typically, judges prefer that the defendant’s counsel also present an opening statement before any evidence is called, so that the issues are clearly delineated from all perspectives at the outset of the trial. In complex cases, opening statements may last for hours or days, during which the judge may be introduced to many of the documents in issue in the case, as well as documents prepared by counsel to assist the court, such as a chronology of key events, a cast of characters, a glossary of technical terms or a summary of agreed facts.

1.9.2 Examination of Witnesses

Counsel conducting the direct examination of their own witness may not ask leading questions, i.e., questions that suggest the answers except on non-contentious matters. Unless the witness is an expert witness, discussed below, the witness may only testify to matters within that witness’s direct knowledge.

“Hearsay” evidence is generally not admissible unless the evidence falls within a recognized exception to the rule against hearsay or where it is found to be “necessary and reliable.”

A lawyer may subpoena a witness and cross-examine an employee, director or officer of an opposing party. However, a lawyer will often be prohibited from interviewing such a witness ahead of time.

During cross-examination, a witness may not speak to their own lawyer or anyone else about any matter relating to the case. Witnesses may be declared “adverse” if their answers are inconsistent with their prior out-of-court statements. In deciding whether to make a declaration of adversity, the trial judge will consider the significance of the inconsistencies, a motive to support the opposite side or evidence of collusion with the opposite side, and the witness’s conduct at trial. A witness who is declared adverse may be cross-examined by the lawyer who asked them to testify.

1.9.3 Expert Witnesses

Expert evidence may be called at trial when it is necessary and relevant and when specialized opinion evidence or other technical assistance will help the court in its administration of justice between the parties.

The expert may be required to produce their entire file, including prior drafts of the expert report. Depending on the jurisdiction, the production of the expert’s file must occur in advance of or during trial.

1.9.4 Documentary Evidence

Unless the authenticity of specific documents is in issue, most civil cases proceed on a cooperative basis with respect to the admission of documents into evidence. The parties usually produce one or more joint briefs of documents for the court’s use. Typically, the relevant documents have been qualified for admission into evidence through the pre-trial discovery procedures and, if necessary, through the pre-trial document notices exchanged before trial. When the authenticity of a document is questioned, it is dealt with in the same manner as other contentious facts at trial.

1.9.5 Use of Examination for Discovery at Trial

Transcripts of examinations for discovery are not treated as evidence at trial unless they are read into the record by the party who conducted the examination or used to challenge an opposing witness with a contradictory answer from their examination for discovery. A party may qualify or contradict evidence read into the record from the opposing party’s examination for discovery by referring to other evidence before the court.

In fairness to a witness, any prior inconsistent statement allegedly made by that witness before testifying at trial must generally be “put to” the witness when testifying so that they have an opportunity to explain the apparent contradiction. This applies whether the prior statement was made during examination for discovery or in some other context.

1.9.6 Length of Trials

Most civil cases are tried over the course of one or two weeks. However, in complex cases involving large amounts of money, trials have been known to take a year or longer. In many provinces, counsel are required to agree in advance to a trial schedule that includes lists and time estimates for witnesses. However, Canadian courts remain reluctant to impose or enforce time limits at trial.

1.9.7 The Decision

It is common for judges to take some time following the completion of trial to consider their decisions and deliver a written decision, including reasons for their conclusions. The period during which judgment is reserved is usually in keeping with the complexity of the issues. Most decisions are rendered within a few months. Often the court will invite the parties to make further submissions regarding costs to be awarded.

1.10 Judgments

1.10.1 Judgments and Orders

A judgment is the final determination of an issue or issues between parties to litigation. Typically, a judgment becomes effective on the date the judge pronounces it, rather than on the date a formal order or judgment is entered in the court registry. However, the judge may specify an effective date before or after the date of pronouncement.

Judgments may be given in either written or oral form. Once judgment is rendered, an order must be drawn up in the required form and entered. Usually, the successful party in the action will draw up the order and then obtain approval of its form from all parties who appeared at the trial or hearing. The order is then entered into the court by the registrar as an order of the court. If one or more parties refuse to approve the order, any party may make an appointment to settle the order before the court.

In Quebec, judgments are deposited at the court office and entered in the registers, without the need for an order approved by the parties.

1.10.2 Interest

Where the amount of interest payable on judgment debts is set out in a contract, pre-judgment interest will typically be based on the contract. It is illegal in Canada to charge interest at an effective annual rate over 60%(this prohibition is subject to regulatory amendments that have not come into force as of the publication of this guide). Further, a rate stipulated on a monthly or daily basis may not be enforceable unless the contract expressly states the equivalent yearly rate of interest.

If there is no explicit or implied agreement between the parties, the rate of pre-judgment interest will be established by the province in which the case will be heard. Generally, pre-judgment interest will be based on the rate set for 30-day commercial paper.

1.11 Appeals

1.11.1 Availability of Appeals

There is often an automatic right to appeal a trial decision to a higher court, such as a provincial Court of Appeal.

The deadline for filing a notice of appeal or a motion for leave to appeal differs by province and depends on the type of case. Generally, the deadlines vary from 15 to 60 days. For example, in British Columbia, it is usually 30 days from the day following the effective date of judgment. In Ontario, Notice of Appeal to the Court of Appeal must be served within 30 days, whereas if leave to appeal is required, leave to appeal to the Divisional Court or Court of Appeal must be sought within 15 days.

Decisions issued by administrative tribunals, such as the Competition Tribunal or a provincial securities commission, are often subject to judicial review or appeal to a court. The availability of judicial review or appeal will depend on the legislation establishing the particular administrative tribunal. In some cases, arbitration decisions are also subject to review or appeal to a court.

A decision of a provincial Court of Appeal or the Federal Court of Appeal may be appealed to the Supreme Court of Canada, the highest court in Canada and the last judicial resort of Canadian litigants. The Supreme Court of Canada has jurisdiction over the civil law of Quebec and the common law of the other provinces and territories, and it can hear cases in all areas of the law.

1.11.2 Standard of Review

The level of judicial deference given to a lower court or tribunal by an appellate court depends on the issue in question and corresponds with the standard of review to be applied.

An appellate court will rarely overturn findings of fact made at trial by a jury or trial judge. A finding of fact may only be overturned on appeal if there was a “palpable and overriding error.” Accordingly, most appeals from lower court decisions are concerned with whether the court or tribunal below made an error in interpreting or applying the law. If an appellate court finds that the lower court incorrectly interpreted or applied the law, the appellate court may reverse the lower court’s decision.

The presumed standard of review for expert administrative tribunals is reasonableness of both the decision’s outcome and reasoning. Under the reasonableness standard, the tribunal’s decision will be given deference. Such decisions are only overturned if they are found to be internally incoherent or untenable, given the factual and legal constraints. However, an expert tribunal will not be given deference when the legislature has indicated a different standard should apply or it is required by the rule of law. For example, if the issue is a constitutional question, the tribunal will not be granted deference. Additionally, expert tribunals will not be given deference on issues of procedural fairness.

1.12 Enforcing Judgments

Once a final judgment has been obtained, there are a variety of steps a judgment creditor can take to enforce the judgment, including investigation, seizure and sale of the debtor’s real and personal property, and garnishment of wages and other debts. The judgment creditor bears the responsibility for enforcing the judgment.

Judgment creditors do not, by virtue of their judgments, achieve any priority status over other creditors. If the judgment debtor has few or no assets, the judgment creditor may find it impossible to collect the money owed under the judgment. In most cases, if a judgment debtor declares bankruptcy, the judgment debt will be discharged in bankruptcy.

1.12.1 Investigation: Examination in Aid of Execution

In most provinces, judgment creditors are entitled to compel a judgment debtor to attend an examination in aid of execution to answer questions under oath. At the examination, a judgment creditor may question a judgment debtor on any matter pertinent to the enforcement of the judgment, the reason for non-payment or non-performance of an order, the debtor’s income and property, the debts owed to and by the debtor, the disposal the debtor has made of any property, either before or after the judgment, and the means the debtor has or may have to satisfy the order. In some provinces, the court also has the discretion to order the attendance of any other person who may have knowledge of the debtor’s circumstances, including the debtor’s spouse.

1.12.2 Seizure and Sale of Real and Personal Property

1.12.2.1 Real Property

A judgment creditor may execute their judgment against any real property owned by the judgment debtor. The creditor must first register the judgment against the title interest of the debtor. Unless it is renewed, a registration will generally expire after a set period.

Once a judgment is registered against title to real property, a judgment creditor can seek to have the judgment debtor’s interest in the property sold. There are different procedures in place in each province for the sale of the debtor’s land. Some provinces require that there be a hearing before the land can be sold, and others have waiting periods after the registration. Ultimately, once the procedures are complied with, an appointed official, such as a sheriff or bailiff, will carry out the sale of the land.

Except under Quebec law, a judgment creditor is not a secured creditor; if there are other charges registered against the title to a debtor’s property at the time a judgment is registered, they will rank in priority over the judgment. Further, a judgment creditor will rank equal to other judgment creditors whose judgments are registered against title to the debtor’s property, even if those registrations are made later in time, but prior to sale. In the case of Quebec, judgment creditors benefit from a legal hypothec which ranks according to its date of registration. Where there are no mortgages, liens or similar encumbrances registered against the judgment debtor’s interest in the land, the proceeds of sale will typically be distributed rateably among the recognized creditors. Where a judgment debtor has only a joint or partial interest in the property, only that interest is subject to being sold.

1.12.2.2 Personal Property

All goods, chattels and personal property of a judgment debtor are liable to seizure and sale by a judgment creditor, except for certain exempted items and amounts. Items exempted from seizure may include household items, work tools, essential clothing and essential medical aids. Appointed officials, such as sheriffs and bailiffs, carry out the seizure and sale of the debtor’s property. If assets are seized and sold, the creditor is entitled to the costs of enforcing the judgment. Just like in the case of real property, normally the proceeds from the sale of personal property are distributed rateably among the recognized creditors. However, any amounts owing for family support or maintenance orders will generally take priority over any other unsecured judgment debts.

1.12.3 Garnishment of Debts

One of the most effective enforcement tools is garnishment. A garnishing order requires the individual, corporation or financial institution served with a garnishing order to pay into court any money currently owed to the judgment debtor, instead of paying the judgment debtor. A creditor may obtain a garnishing order by applying to the court registry after judgment. Information as to likely sources of monies owing to the judgment debtor can be obtained through the examination in aid of execution process.

Typically, a garnishing order will be served on the bank branch where the debtor maintains an account, as well as on the debtor’s employers and/or customers. In some provinces, a portion of the judgment debtor’s wages will be exempt from garnishment. After the money has been paid into the court, it is distributed proportionately to all registered judgment creditors.

Table of Contents

1. General Court Procedures

1.1 Time for Commencing Proceedings

If a party does not commence legal proceedings within the applicable limitation period, that party may be prohibited from asserting its claim.