1. General Court Procedures

1.1 Time for Commencing Proceedings

The time deadlines and limitation periods for commencing lawsuits and actions are the subject of provincial law (with limited exceptions for matters within federal jurisdiction). If a party does not commence legal proceedings within the applicable limitation period, that party may be prohibited from making the claim thereafter.

Limitation periods vary from province to province, and often vary within a particular province depending on the type of case. Alberta and Ontario both have a general two-year limitation period for most civil cases, such as breach of contract and negligence, but in certain limited circumstances, the limitation periods can be much shorter. For example, in British Columbia, the limitation period to give notice of a claim to a municipal body is only 60 days.

In addition to the limitation periods set out in the statutes of the various provinces, there are certain common law doctrines (such as laches and acquiescence) which give the courts discretion to dismiss a claim if the plaintiff did not pursue its rights within a reasonable time.

1.2 Pleadings

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

1.2.1 Commencing Proceedings

Commencing a civil action requires an originating document filed with the court and served on the opposing party/parties stating the nature of the claim and the relief sought. The Rules of Court in each province stipulate the specific form required. The vast majority of provinces require an action to be commenced by way of a Statement of Claim setting out the particulars of the claim and the relief sought.

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

1.2.2 Statement of Defence

After being served with the Statement of Claim, each defendant generally has a number of days to deliver a Statement of Defence in response to that Claim. If the Statement of Defence is not served on the plaintiff and filed with the court within 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.

1.2.3 Amending Pleadings

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

Generally, a party may amend its pleading once before the close of pleadings (and the scheduling or commencement of the trial). 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, Nova Scotia, and Newfoundland and Labrador, the respective Rules of Court allow a party to plead any matter arising at any time whether before or after the issue of the originating document. In addition, in Manitoba a party may seek leave to amend its pleadings to allege a fact that occurred after commencement of the proceedings, even though the fact gives rise to a new claim or defence.

 1.2.4 Joinder of Parties

By court order, the court may add or substitute a person as a party under the Rules in all provinces where it is: (a) just and convenient to do so; and (b) that person ought to have been joined as a party or his/her participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectively adjudicated. In British Columbia, a person made a party by court order may apply to the court to vary or discharge the order.

The Rules of Court in all of the provinces give the court discretion to make an order joining “necessary parties.” That is, every person whose presence as a party is necessary to enable the court to adjudicate effectively and completely on the issues in a proceeding may be joined as a party to the proceeding. Additional plaintiffs (or defendants as the case may be) may be joined to the proceedings 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 against the requirement of joinder. Such relief may be granted where it appears that the joinder of multiple claims or parties may unduly complicate or delay the hearing or cause undue prejudice to a party. 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 which the party has no interest.

1.2.5 Joinder of Issues

The Rules of Court of each province permit a party to 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 each province set out the requirements for pleadings in a proceeding. Where a pleading, such as a claim or a defence, fails to provide all of 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. 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 are required to exchange all documents in their possession that are relevant to the issues raised in the pleadings, with the exception of documents that are privileged. These materials are accompanied by an affidavit of documents sworn by a representative of each party.

The affidavit encloses a list of all relevant documents and states that, after a diligent search of that party’s files and records, those are the only relevant documents to be produced. The definition of “documents” has been expanded in Canada to include such things as paper documents, emails, computer files, tape recordings, videos and electronic media. The definition of “relevance” is also broad. However, in Ontario the Rules were amended as of January 1, 2010 to narrow the scope to documents that are “relevant to any matter in issue” instead of merely “relating to” (or “touching on”) any matter in issue. Other changes to the Rules in Ontario as of January 1, 2010, include a requirement that parties agree on a “discovery plan” in advance of documentary or oral discovery and a requirement that the principle of proportionality be observed throughout discovery. How these refinements will be interpreted in practice remains to be seen.

The opposing party is entitled to receive a copy of every document listed in the affidavit of documents that is not privileged. Privileged documents are generally those created for the purpose of giving or receiving legal advice. Where legal advice of any kind is sought from a professional legal adviser in his or her capacity as such, the confidential communications relating to the giving or receiving of that advice are at the client’s instance permanently protected from disclosure by himself or by the legal adviser, except if the client waives the protection.

The privilege extends to communications in whatever form, but does not extend to facts that may be referred to in those communications if they are otherwise discoverable and relevant. Privileged documents are to be listed in the affidavit of documents separately, but do not need to be provided to the opposing party.

If relevant documents are held by third parties, any party to an action may bring a motion seeking an order requiring that third party to produce those relevant documents for inspection. Again, the rules provide an exemption for privileged materials.

1.3.3 Examinations for Discovery

After the exchange of relevant documents, the parties are entitled to conduct an examination for discovery of the opposing party. In some provinces, such as Ontario, there is no automatic right to conduct a discovery of more than one representative of a corporate litigant, and no automatic right to discover persons who are not parties to the litigation.

With certain limited exceptions, such as information that is 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, but no judge is present, and the examination typically takes place in an office setting. The transcript from the examination may be used later at trial (see Section III, 1.9.5).

The party who first serves a notice of examination may examine first and is entitled to complete that examination before being examined by the other party. However, before a party can serve a notice of examination, the party must have delivered its affidavit of documents to the other side. Examinations for discovery can be a lengthy and expensive step in the litigation and many cases often settle around this stage in the proceeding. Pursuant to the Rule amendments that came into force in Ontario on January 1, 2010, there shall be a limit of seven hours for each party to conduct examinations for discovery (absent agreement or court order to the contrary). The extent to which this limit will be observed or enforced in complex matters also remains to be seen.

1.3.4 Examinations before Motion or Trial

In addition to examinations for discovery, there are provisions in most provinces for oral examinations of witnesses out of court before the hearing of a motion or the opening of trial, generally with leave of the court or consent of the parties. The attendance of persons to be examined can be required by summons, and that summons may also require the person to bring all relevant documents in his or her possession to the examination.

1.4 Summary Disposition of Matters by the Court Without Trial

1.4.1 Default Judgment

The Rules of Court throughout Canada provide for a process whereby a plaintiff may proceed against a defendant and obtain a default judgment in circumstances where a defendant, properly served, has not filed the necessary pleadings in response to the action.

While default judgment applications are court applications, generally speaking, a court appearance is not necessary. 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 responsive documents.

If the plaintiff’s claim is one of debt or liquidated demand, the plaintiff can enter a default judgment against a defendant for a specific sum not exceeding the amount of the debt or liquidated claim, 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 (or another similar document) against the defendant for damages and costs in an amount to be assessed by the court at a later date.

1.4.2 Dismissal for Delay/Failure to Prosecute Action

If upon application by a party, it appears to the court that there is want of prosecution in a proceeding, the court may order that the proceeding be dismissed. Given, however, that an order dismissing a proceeding for want of prosecution can have severe consequences on a plaintiff, it will not be lightly made.

Furthermore, the order will not be made without giving the offending party an opportunity to remedy the default unless the default has been intentional or has given rise to a substantial risk that a fair trial will not be possible.

1.4.3 Summary Judgment and Summary Trials

1.4.3.1 Summary Judgment

The Summary Judgment rules enable a plaintiff to a proceeding to obtain Summary Judgment without a trial if the plaintiff’s claim can clearly be proven and if the defendant is unable to raise a bona fide defence or raise an issue against the claim that ought to be tried. Summary Judgment applications are not just the purview of the plaintiff, and such applications can also be brought by a defendant on the basis that there is no merit in the whole or part of the claim and that there are no facts which would substantiate the whole or part of the claim.

In essence, the Summary Judgment rules are intended to prevent vexatious defences or frivolous claims.

Applications for Summary Judgment can only be made in plain cases and are not to be made where a party knows that the facts as to liability are in dispute or are of a complicated or difficult character.

A proceeding for Summary Judgment is not a trial by affidavit and, in most provinces, the court does not try issues, find disputed facts, assess credibility or decide questions of law but simply determines whether there are issues to be tried. However, the Ontario Rules of Civil Procedure permit the judge hearing a motion for Summary Judgment to weigh evidence, assess credibility, draw any reasonable inference from the evidence or conduct a mini-trial to allow for oral evidence, unless it is in the interests of justice for such powers only to be exercised at trial.

A defendant in the case of a Summary Judgment application must show there is a “triable issue”, “arguable case”, or “real chance of success” to successfully defeat a Summary Judgment application by a plaintiff.

Affidavits and any other evidence submitted to the court in Summary Judgment applications are not used for the resolution of disputed issues of fact but for determining whether any issues are actually in dispute.

1.4.3.2 Summary Trial

In British Columbia and Alberta, the Rules of Court provide for a Summary Trial process in addition to the Summary Judgment application described above. In Ontario, a Summary Trial process is available under what is known as the “Simplified Procedure” for most claims for C$100,000. Similarly, the federal rules require, unless the court orders otherwise, a “Simplified Action” for proceedings under C$50,000.

A Summary Trial application is a trial based upon affidavit evidence without, generally speaking, the requirement for witness testimony. Pursuant to the Summary Trial Rules, a party may apply to the court for Judgment in an action or on any particular 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 even expert evidence. Summary Trials in Ontario under the Simplified Procedure may also include up to 10 minutes of direct examination of a witness instead of just cross-examination on an affidavit.

On hearing an application under the Summary Trial Rules, the court can grant Judgment in favour of any party, either on an issue or generally, unless the court is unable on the whole of the evidence before it to find the facts necessary to decide the issues of fact or law, or, the court is of the opinion that it would be unjust to decide the issues on the application.

In most provinces, the Summary Trial process differs substantially from the Summary Judgment process described above in that the court is expressly permitted on a Summary Trial application to find facts, make determinations of law and, in some cases, make credibility assessments. However, a judge hearing a motion for Summary Judgment in Ontario will be able to make such determinations and assessments.

There are obvious limitations on the Summary Trial process and the courts will not hear such applications in circumstances where it would be unjust to finally resolve the issues without a full trial. In making that determination, the court may consider such factors as 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 which may impact on the fairness of the process.

1.4.4 Other Applications

The Rules of Court vary from province to province. However, there are certain procedures in each of the provinces designed to assist in the resolution of actions.

1.4.4.1 Special Case

Parties to a proceeding may agree that a particular question of law or fact may substantially resolve the dispute between the parties. As such, rules exist in most jurisdictions to allow parties to state a question of law or fact in the form of a Special Case for the opinion of the court. In certain circumstances, the court itself may order a question or issue arising in a proceeding, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be stated in the form of a Special Case.

1.4.4.2 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. In deciding whether such an application should be made, the court will determine whether resolving the question posed by the parties would serve the purpose of eliminating a claim insupportable in law with a resultant saving of time and effort. The purpose of the rule is to provide a means of determining a question of law that goes to the root of the action without deciding issues of fact raised by the pleadings.

1.5 Simplified Procedure

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

• In Ontario, if the claim is for C$100,000 or less, the use of the “simplified procedure” is mandatory and, where the claim exceeds C$100,000, the action can proceed under the simplified procedure if the parties agree or if the plaintiff abandons the portion of the claim that exceeds the threshold.


• In British Columbia, a “fast track procedure” is available in circumstances where the trial of the proceeding can be completed within two days, but there is no limitation on the amount of the claim. New rules that came into force on July 1, 2010 provide a “fast track procedure” that is mandatory where the claim is C$100,000 or less or where the trial can be completed within three days.

Although the rules vary from province to province, in general, the simplified rules reduce the amount of examination for discovery that is available and provide for earlier trial dates.

1.6 Interlocutory Motions and Applications

1.6.1 General procedural motions

Business disputes in Canada, as in other jurisdictions, commonly involve time-sensitive legal issues. Canadian courts devote significant time and resources to the process of providing a fair, balanced and timely pre-trial procedure for hearing litigants on practice or procedural issues. In appropriate cases, litigation issues may be determined on a summary basis without the need for a lengthy trial.

Court applications of this nature generally seek directions or decisions “between steps” in the litigation and, as such, are known as interlocutory motions. The Rules allow motions to be scheduled on relatively short notice to parties adverse in interest — often as little as two business days or even less in cases where it is appropriate for the court to hear the matter on an urgent basis or without requiring notice to other parties. However, despite the rules, there are significant scheduling delays in some cities, notably Toronto, and it may take several weeks to obtain a motion date for non-urgent matters.

Counsel argue their respective positions in these motions based largely on evidence put forward in Affidavits and scrutinized by cross-examination. Most Canadian jurisdictions use privatized court reporting services so that cross-examination of affiants occurs at a law office rather than the courthouse.

The following is a list of some common types of interlocutory motions:

• 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 another party’s pleadings or ask the court for other available relief, where that party has failed to meet procedural requirements in the action.


• Consolidate multiple actions where there are common facts and issues which ought to be dealt with together, or split one lawsuit into multiple actions where the opposite is true.


• Oversee court-supervised processes, such as appointment of a receiver, receiver-manager or liquidator.


• Enforce the “rules” and procedural protections of litigation by, for example, compelling a party to attend for cross-examination or examination for discovery, answer questions or provide requested records which are determined likely to be of assistance in the litigation.


• Obtain judgment without trial, where there is no genuine defence to the claim or in cases where the court is satisfied that litigants’ rights are clearly set out by contract or statute so as to obviate the need for trial.


• Dispute a judgment or other litigation step taken without providing appropriate notification to parties adverse in interest.

While vigorous representation may be the most recognizable hallmark of litigation, interlocutory practice in Canada also reflects a tradition of counsel as officers of the court, with professional obligations to opposing counsel and parties adverse in interest as well as their own clients. In most cases, Canadian counsel tend to be courteous and respectful in the courtroom while at the same time advocating the interests of their client in as compelling a manner as possible.

1.6.2 Injunctions

1.6.2.1 General Test

An injunction is an order of the court which restrains a pending or existing breach of contract, the commission or continuance of a wrongful act, or which seeks to preserve rights or assets pending the outcome of litigation.

The most common type of injunction is known as a negative injunction, since it prohibits a party from undertaking or continuing certain conduct. Injunctions may also be positive or mandatory in nature so as to impose an obligation requiring a party to undertake or continue to act in a certain manner.

The situations in which injunctive relief may be appropriate are too numerous to provide an exhaustive list, however, some common scenarios will include protecting against the use or disclosure of proprietary or confidential information (often in the context of customer lists or intellectual property examples), or preventing the occurrence or continuance of an alleged defamation, breach of a contractual non-competition covenant or prejudice to the shareholders of a corporation.

• There is a serious issue to be tried. To make this determination, the court will generally assess the merits of the case on a preliminary basis, without deciding the matter. Among other things, the applicant must satisfy the court that its lawsuit is not frivolous or vexatious.


• Refusing to grant the requested relief will cause irreparable harm to the applicant’s interests. “Irreparable” in this context is assessed according to whether resulting harm is probable and of such nature that it cannot be remedied in monetary terms. Where there has been a clear breach of a clear covenant in a contract, irreparable harm need not be shown.


• The “balance of convenience” favours granting the injunction. The court’s assessment of this factor involves a comparison of respective interests, weighing the “harm” alleged by the applicant if its interests are not protected, against the effect on other parties, and, in some cases, against the public interest, if their legal rights are restricted in the manner sought.

Injunctions arise from a set of discretionary principles based on overall fairness, known as equitable considerations, allowing the court to consider the overall context in which the application is made. 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 (for example, where the vendor of an asset applies for an injunction to prevent its sale, but in the meantime the purchaser has already sold that asset to an innocent third party who had no notice of the vendor's claim).


• The injunction would result in unjustifiable hardship to the respondent.


• The injunction would not be in the plublic’s 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 particular business interests.

1.6.2.2 Undertaking as to damages

Injunctive relief is an extraordinary remedy with significant consequences if used inappropriately and, for this reason, the applicant must generally give a meaningful undertaking (promise to the court) to pay damages in the event 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.

1.6.2.3 Mareva Injunctions

In addition to the legal risk of success or failure, the practical challenges of litigation often include whether the defendant will ultimately have any assets from which a judgment may be collected.

One mechanism used by Canadian courts to address such concerns is the Mareva injunction, adopted from English law. This type of pre-trial order may be utilized 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, as distinct from a mere apprehension or suspicion of this eventuality.

Adopting the English principles posed unique challenges for Canadian courts since Canada is a federal state composed of 10 provinces and three territories. The dual federal/provincial nature of this relationship challenged the courts to decide whether another province or territory within Canada constitutes a truly “foreign” jurisdiction. The common law has restricted the availability of Mareva injunctions where the defendant is merely moving assets from one Canadian province to another since judgments from the first province are readily enforceable in the other province. Alberta has enacted provincial legislation that allows Mareva-type relief to be awarded in these circumstances.

As with other requests for an injunctive order, the applicant must generally provide an undertaking as to damages and the courts will award such relief only in the clearest of cases – restricting a party’s ability to move or dispose of its assets is a significant departure from conduct typically associated with the ordinary course of business. Typically the applicant must establish:

• A strong likelihood of success.


• Full and frank disclosure of the material facts which the court should know in considering the application.


• Full particulars of the claim, including the grounds and the amount of the claim, fairly stating the points made against it by the defendant that speak against their claim.


• A real risk that the defendant will move assets from the jurisdiction or dissipate those to avoid the possibility of judgment.


• Grounds for believing that the defendant has assets within the jurisdiction.

1.6.2.4 Mandatory Orders: Anton Piller orders

Anton Piller orders allow the plaintiff to apply to the court for what is, in essence, a civil search warrant.

Such an order typically allows the plaintiff and its lawyers (who supervise the seizure process in their capacity as officers of the court) to enter a premises, search for and seize materials in possession of the defendant. The court assumes custody of these materials because the intention of this process is to preserve evidence from possible destruction (especially where it can be quickly and conveniently destroyed, as in the case of computer data) or to recover property of the plaintiff which may be necessary to prove its case.

In light of the extraordinary and interventionist nature of such an order, the threshold for obtaining this 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 (known as in camera and ex parte). In this context, the court will expect the applicant to fully disclose all relevant matters within its knowledge, even if they do not support its request. If the applicant fails to disclose material facts, the court has broad discretion to decline the application.

The order must contain procedural protections for the defendant and go no further than is absolutely necessary to remedy the problem that has given rise to the application for the order.

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 for it. Consideration of “damage” under this heading is directed at whether the plaintiff would 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 these materials before the ultimate hearing. Since it is sometimes impossible for an applicant to produce direct proof in this regard, Canadian courts are sometimes willing to infer a risk of destruction where the applicant can satisfy the court that the defendant has been acting dishonestly or in suspicious circumstances. However, the court will not draw this inference lightly – the inference of dishonesty, and that there is a “real possibility” that evidence will be destroyed, must be compelling before the court will presume prospectively that the defendant will do so.

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

1.7 Case Management and Pre-Trial Conferences

Some provinces, such as Ontario and Quebec, have introduced special rules to manage the litigation process. These case management procedures are very jurisdiction-specific, and include a wide array of new and often shorter deadlines for the various steps in a proceeding. Case-managed cases are typically subject to a timetable established either by the parties on consent or by the order of a judicial officer (such as a case management master). In Toronto, Ontario, a specialized form of case management may be available in the form of the Commercial List Court (a branch of the Ontario Superior Court reserved for certain commercial matters). In addition, most jurisdictions require that mediation be attempted in every case before going to trial. For these and other reasons, the large majority of civil and commercial cases in Canada are settled long before they come to trial.

Whether or not a proceeding is subject to case management, if it does not settle during discovery or at another early stage and is approaching trial, that case may be brought before a judge or other judicial officer (other than the trial judge) for a pre-trial conference. A conference may be ordered by the court or may be requested by a party to the proceeding. The purpose of the conference is to consider the possibility of settlement, to simplify the issues for trial, to determine the timing and length of trial, and to assist generally in disposing of the proceeding. Communications made at the pre-trial conference must be kept confidential from the judge who ultimately presides at the trial or hearing.

1.8 Costs

1.8.1 What Are Costs?

It is common in litigation in Canada for the successful party to recover from the unsuccessful party a portion of the expenses incurred by the successful party for such items as lawyer’s fees, expenses to obtain expert reports and travel expenses associated with various steps in litigation, including trial, preparation and interlocutory proceedings. The discretion to award costs is an extremely flexible tool in the hands of judges.

1.8.2 Costs Guidelines and Schedules

Notwithstanding the court’s ability to fashion a flexible award, the courts of each province have different guidelines for setting the amount of costs to be paid. For example, Alberta has a predetermined schedule which establishes a sliding scale for “party-party” costs which results in less than full indemnity in most cases; and Ontario uses a tariff system that has a scale of hourly rates based on the years of experience of the lawyer. Ontario, like most other provinces has two scales of costs – a Partial Indemnity Scale (similar to Alberta’s “party-party” costs) which is used in most cases, and a Substantial Indemnity Scale (similar to Alberta’s “solicitor-client” costs) which is used when the circumstances warrant a higher award of costs.

The court commonly uses a higher award of costs to sanction unfounded serious allegations, such as fraud or conspiracy, or to sanction unreasonable behaviour by a party. The higher award of costs may also be used if a party rejected a settlement offer and ultimately recovers less than the rejected settlement at trial. Most provinces encourage the parties to settle by establishing cost consequences for failure to accept reasonable offers to settle.

Where disputes arise with respect to quantification of 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 tax or assess the costs.

1.8.3 When Costs Are Payable

Generally, costs become payable following the outcome of trial. 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 but, as with any award of money by the court, may need to enforce this right through the available civil enforcement mechanisms.

1.8.4 Security for Costs

A defendant can apply to the court to require the plaintiff to provide security for costs before the trial of the action. There are slight differences between different provinces. In Ontario, the rules set categories for when the court may order security, including when: (i) the plaintiff resides outside the province; (ii) 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; and (iii) 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.

In Alberta, a court may award security where it considers it just and reasonable to do so having regard to five factors. These factors are: (i) whether it is likely the applicant will be able to enforce an order or judgment against assets in the province; (ii) the ability of the respondent to the application to pay the costs awarded; (iii) the merits of the action; (iv) whether an order to give security would unduly prejudice the respondent's ability to continue the action; and (v) any other matter the court considers appropriate.

In British Columbia, the rules do not include instructions on when a court may order security for costs. The ability to order security is part of the court’s inherent jurisdiction and it has complete discretion regarding whether or not it will award security for costs, but adopts similar factors based on common law jurisprudence.

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. Failure to do so once ordered will normally result in dismissal of a plaintiff’s action.

Security for costs orders are rarely granted in favour of a plaintiff as against a defendant, as such an award would be seen as an unreasonable impediment to a defence.

1.8.5 Costs in Class Proceedings

See Section III, 2.6 of this Guide for a discussion of costs in Class Proceedings.

1.9 Trials

As in most other common law jurisdictions, less than 10% of all lawsuits result in trials. The vast majority of cases settle or are concluded at an earlier stage of the proceedings.

Case management processes in many provinces are designed to ensure that cases move forward through the litigation process and reach trial on a timely basis, usually within two to three years of the case being filed. Urgent cases can be dealt with much more quickly; but complex cases often take more than three years to reach trial. 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 prior to trial (typically 60 to 90 days) in order for expert witnesses to be permitted to testify at trial.

Other time-limited pre-trial notices include notices under the Evidence Act and Business Records Act which are necessary for certain documentary evidence to be placed in evidence at trial without full formal proof. In addition, it is a common practice to deliver Notices to Admit (notices requiring the opposing party to admit certain facts) within a few weeks before trial. The purpose of such notices is to narrow the issues and increase the cost risk to the opposing party if non-contentious facts are not admitted. In addition, supplementary examinations for discovery and exchanges of documents to update previous pre-trial disclosure (for example, on the subject of damages) will often take place within a few weeks or days before the trial is scheduled to commence.

In most cases, any party may ask for a jury trial by delivering a jury notice. Juries are not available in certain cases (for example, family law matters, various forms of equitable relief and claims against a municipality). However, parties in Canada rarely choose to have civil matters determined by a jury. Juries are used in personal injury and defamation claims but, even in these cases, jury trials are not universal. The court retains the discretion to strike out a jury notice and require a trial by judge without a jury. A jury notice can be struck out based on complexity of the case or strong local prejudice but, in most cases, a jury notice will be allowed to stand if one of the parties wishes to have a trial by jury.

The trial itself is conducted in a manner that will be familiar to common law advocates around the world. The following points may be of interest.

1.9.1 Opening Statements

Plaintiff’s counsel invariably makes an opening statement at the beginning of the trial. Typically, judges prefer that 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 even more than a day. In the course of extended openings, the judge may be introduced to many of the documents in issue in the case. The judge is likely to be given various documents which have been prepared by counsel to assist the court, for example, 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 his or her own witness may not ask leading questions (questions that suggest the answers) except on non-contentious matters.

A witness may be declared hostile if the answers given to the lawyer who asked him or her to testify are inconsistent with prior out-of-court statements. However, this declaration is rarely made unless the trial judge feels it is necessary to do justice in the case.

There is no longer a hard and fast rule against “hearsay” evidence and the more recently formulated test as to whether the evidence is “necessary and reliable” will be applied.

A lawyer may subpoena as 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.

A witness may not speak to his or her own lawyer or any other lawyer on the same side of the case about evidence the witness has already given or, during cross-examination, about any matter relating to the case.

1.9.3 Expert Witnesses

Expert evidence may be called at trial when it is necessary and relevant and when it will assist the court to have opinion evidence or other technical assistance to do justice between the parties.

Canadian courts are becoming increasingly sceptical of expert evidence which is used to simply buttress the advocacy of counsel. On the other hand, it is a rare commercial case that does not have at least one expert witness (and usually two or three) on each side.

1.9.4 Documentary Evidence

Unless the authenticity of specific documents is in issue, most civil cases proceed on a co-operative basis with respect to the admission of documents into evidence. The parties usually produce one or more joint briefs of documents for the use of the court. 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. Any documents that are contentious as to authenticity are 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 except to the extent they are read into the record by the party who conducted the examination. This may be done by simply reading several questions and answers from the opposing party’s examination for discovery into the record during the presentation of one’s own case or by confronting an opposing witness with a contradictory answer from his or her examination for discovery.

A party is free to qualify or contradict evidence which that party has read into the record from the opposing party’s examination for discovery by referring to other evidence placed before the court at the trial.

1.9.6 Length of Trials

Most civil cases are tried in one or two weeks. However, in complex cases involving large amounts of money, trials have been known to take a year or more to be completed. Counsel are required, in many provinces, to agree in advance to a trial schedule (including lists and time estimates for witnesses) in advance. However, our courts remain reluctant to impose or enforce time limits at the trial stage.

1.9.7 The Decision

It is usual for judges to take some time following the completion of trial to consider their decisions and deliver a written decision, which will include reasons for the conclusions which have been reached. The period during which judgment is reserved is usually in keeping with the complexity of the issues to be determined. Most decisions are rendered within a few days or weeks of the conclusion of trial.

Generally, the court will invite the parties to make further submissions as to the 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. A judgment normally becomes effective from the date on which the judge pronounces it rather than on the date that a formal order or judgment is entered in the Court Registry. However, the judge may specify an effective date before or later than the date of pronouncement. Where an appeal is permitted from a judgment, the deadline for filing the appeal differs from province to province. In British Columbia and Ontario, it is usually 30 days from the day following the effective date of the judgment and 20 days in Alberta.

Judgments may be given in either written or oral form. Once judgment is given, 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 the 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 registrar. The registrar’s decision is reviewable by the judge who gave the original judgment.

• The successful party can prove that it has the authority to proceed under the terms of the order.


• The unsuccessful party will have proper material upon which to base an appeal.


• Neither party will be able to re-litigate the same matter, since it has clearly been resolved.


• Failure to enter an order may be treated as evidence of its abandonment by the successful party.

Though not mandatory, it is advisable to serve the order on the person who is expected to obey it. Service will prove that the party knew of the order, which is a prerequisite for establishing contempt of court if that party fails to obey the order. If an order is obtained without notice to the other party or parties, the person obtaining the order must serve it on each person affected by it.

1.10.2 Foreign Currency Judgments

Common Law. Under the common law, a money judgment had to be expressed in Canadian dollars, and the date of conversion into Canadian dollars of sums agreed to be paid in a foreign currency was a matter of some controversy. The operative principle developed that the successful litigant should be provided sufficient Canadian funds to purchase the amount awarded in foreign currency at the time of the judgment.

Statutory Provisions. Legislation and procedural rules have clarified the law regarding foreign currency judgments in different provinces. The British Columbia Foreign Money Claims Act states that the court may order the unsuccessful party to pay that amount of Canadian currency required to purchase the equivalent amount of foreign currency owing to the other party. The foreign currency must be converted at a chartered bank located in British Columbia, and the date of conversion is the last day that the bank quotes a Canadian dollar equivalent to the foreign currency prior to the day when the debtor makes a payment under the order. Under the Ontario Courts of Justice Act, similar provisions apply, but the bank must be listed under Schedule I of the Canadian Bank Act, and the judge has the discretion to fix a different date for conversion of the funds. In Alberta, foreign currency judgments are still regulated by the common law. However, under the Alberta Rules of Court (for judgments from the United Kingdom) and the Alberta Reciprocal Enforcement of Judgments Act (for judgments from other reciprocating jurisdictions), when a foreign judgment (that is, a non-Alberta judgment) is subsequently registered in Alberta, it will be converted into Canadian currency at the exchange rate on either the date that the court clerk registers the judgment for judgments from the United Kingdom, or the date of the original judgment for judgments from other reciprocating jurisdictions.

1.10.3 Interest

Pre-Judgment Interest. The amount of interest payable on judgment debts may have been agreed upon by the parties in a contract. In such cases, pre-judgment interest will normally be based on the contract. Note, however, that it is illegal in Canada to charge interest at an effective annual rate of over 60% and a rate stipulated on a monthly or daily basis may not be enforceable unless the contract expressly states the equivalent yearly rate of interest.

In British Columbia, if there is no explicit or implied agreement between the parties, the rate will be based on the Court Order Interest Act, which gives the judge discretion to fix an appropriate rate. Generally, such pre-judgment interest will be based on the rate set for 30-day commercial paper. In Ontario, the rate is based on the Bank of Canada’s short-term rate for advances to Schedule I Canadian banks, and is calculated quarterly. In Alberta, the Regulation to the Judgment Interest Act fixes an annual rate for both pre- and post-judgment interest. Tables are regularly published by each provincial government showing the applicable rates of interest during each period.

Post-Judgment Interest. After judgment is pronounced, money awards in British Columbia will bear interest at a rate equal to the prime lending rate of the Bank of Canada. This rate is fixed each half-year, on January 1 and July 1. However, the court does have the authority to fix a different interest rate. In Ontario, post-judgment interest is fixed every quarter, and is calculated as 1% above the rate for pre-judgment interest, dated on the end of the first day of the last month of the quarter preceding the quarter when the judgment was given. In Alberta, the pre- and post-judgment interest rates are the same. Published tables are available showing the applicable rates of post-judgment interest for each province at a specified date. If a partial payment is made by the judgment debtor, it will first be applied to pay off outstanding interest.

Note that for foreign money judgments in British Columbia, the post-judgment interest rate will be calculated based on the foreign prime rate, in other words, the interest rate in the foreign country that is most closely analogous to the prime lending rate of the Bank of Canada.

1.11 Appeals

1.11.1 Availability of Appeals

In most cases, there will be an automatic right to appeal a trial decision to a higher court, such as a provincial Court of Appeal. In some cases, often in respect of interlocutory orders that do not finally determine the case or in matters where the amount in issue is relatively small, a party may have to get leave (that is, permission) to appeal to a higher court.

The deadline for filing a notice of appeal or a motion for leave to appeal differs from province to province and depending on the type of case. Generally, the deadlines vary from 15 to 60 days.

Decisions from administrative tribunals, such as the Competition Tribunal or a Securities Commission, are often subject to judicial review by a court, or appeal to a court. The availability of judicial review or an appeal will depend upon the provisions of legislation empowering the particular administrative tribunal. In some cases, arbitration decisions are also subject to review or appeal to a court.

Every province has a Court of Appeal which is the highest court in that province. A decision of a provincial Court of Appeal may be appealed to the Supreme Court of Canada which is the highest court in Canada. The Supreme Court is the last judicial resort of all litigants. It has jurisdiction over the civil law of Quebec and the common law of the other nine provinces and three territories, and it can hear cases in all areas of the law.

1.11.2 Standard of Review

On appeals, different standards of review are applied to different kinds of cases. Appeal courts grant different levels of judicial deference to the lower court or tribunal depending on the issue in question. However, some useful generalizations can be made.

An appeal court will rarely overturn findings of fact made at a trial by a jury or a trial judge. A finding of fact at trial is only to be overturned on appeal if it was plainly wrong, and 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, and the standard of review is one of correctness, that is, the appeal court must be satisfied that the lower court correctly applied the law, and may reverse the lower court decision if there was an error.

The situation is more complicated with respect to appeals from expert administrative tribunals, such as the Competition Tribunal or a Securities Commission. In those cases, the standard of review will depend on the legislative intent in conferring jurisdiction on the administrative tribunal. The analysis must consider a number of questions, such as the tribunal’s role or function, whether the agency’s decisions are protected by a privative clause, that is, a legislative provision stating that the tribunal’s decisions are not subject to appeal, and whether the question in issue goes to the tribunal’s jurisdiction.

1.12 Enforcing Judgments

Once a final judgment has been obtained, there are a variety of steps that a judgment creditor (that is, a person who is owed money as a result of a court order) may take to enforce the judgment. Those steps include investigation, seizure and sale of the debtor’s real and personal property, and garnishment of wages and other debts. The responsibility for enforcing the judgment rests on the judgment creditor.

Judgment creditors do not, by virtue of their judgments, achieve any priority status (as against, for example, secured creditors). If the judgment debtor (that is, the person who owes money as a result of a court order) has little or no assets, the judgment creditor may find it impossible to collect the money owing under the judgment. In most cases, if a judgment debtor declares bankruptcy, the judgment debt will be discharged with the bankruptcy.

1.12.1 Investigation — Examination in Aid of Execution

In addition to whatever private investigatory means may be available to a judgment creditor, there are legal procedures that can be used to compel a judgment debtor to provide information that may facilitate enforcement.

In most provinces, judgment creditors are entitled to compel a judgment debtor to attend an examination (often called an examination in aid of execution) to answer questions under oath. At such an examination, a creditor may question a judgment debtor as to any matter pertinent to the enforcement of the judgment, the reason for non-payment or non-performance of an order, the income and property of the debtor, 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 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 its judgment against any real property (that is, land) owned by a 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 of time (for example, two years in British Columbia, six years in Ontario).

Once a judgment is registered against title to real property, a judgment creditor can seek to have the 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, the sale of the land will generally be carried out by an appointed official such as a sheriff or bailiff.

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. To seize personal property, a creditor must first obtain a writ on application to the court registry. A writ remains in force for a limited period of time, but it may be renewed. The seizure and sale of the debtor’s property is carried out by appointed officials (such as sheriffs and bailiffs). If assets are seized and sold, the creditor is entitled to the costs of the enforcement. Normally the proceeds from the sale of 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, when served, requires the party served to pay into court, instead of paying the judgment debtor, any money currently owed to the 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.

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