Civil Litigation in Canada

Civil litigation in Canada refers to the legal process for resolving disputes between private parties. Unlike criminal law, which deals with offenses against the state, civil law focuses on matters involving private rights, obligations, and remedies. The goal is typically to compensate the injured party or to enforce a right, rather than to punish.

Canada’s legal system is a common law system (except Quebec, which has a civil law system for private law matters, though its public law and procedure are influenced by common law), meaning that judge-made precedents (case law) play a significant role alongside statutes. Furthermore, Canada has a federal system, so civil litigation procedures and substantive laws can vary between the federal courts and each of the ten provinces and three territories.

Key Characteristics of Civil Litigation in Canada

1. Parties: The party initiating the lawsuit is usually called the Plaintiff or Claimant, while the party being sued is the Defendant or Respondent.
2. Purpose: To resolve disputes between individuals, corporations, or other entities; to enforce private rights; to redress wrongs; and to provide remedies (e.g., compensation, injunctions).
3. Standard of Proof: In civil cases, the plaintiff must prove their case “on a balance of probabilities.” This means the judge (or jury) must be satisfied that the plaintiff’s version of events is more likely true than not. This is a lower standard than “beyond a reasonable doubt” used in criminal cases.
4. Outcomes: Outcomes typically involve monetary compensation (damages), court orders (e.g., injunctions, specific performance), or declarations of rights. Imprisonment or criminal penalties are not outcomes of civil litigation.
5. Governing Laws:
   • Constitutional Law: The Canadian Constitution, including the Charter of Rights and Freedoms, impacts all areas of law.
   • Provincial/Territorial Civil Procedure Rules: Each province and territory has its own comprehensive set of rules governing the procedure for civil lawsuits (e.g., Ontario’s Rules of Civil Procedure, British Columbia’s Supreme Court Civil Rules).
   • Federal Courts Rules: Govern proceedings in the Federal Court and Federal Court of Appeal.
   • Substantive Laws: Specific laws relevant to the dispute, such as contract law, tort law (negligence, defamation), property law, family law, employment law, consumer protection law, etc. These laws can be federal or provincial.
   • Case Law (Precedent): Decisions from higher courts (like the Supreme Court of Canada or provincial Courts of Appeal) are binding on lower courts.

Courts with Civil Jurisdiction in Canada

Canada has a multi-tiered court system with both federal and provincial/territorial courts:

• Provincial/Territorial Courts (Small Claims Courts): These courts handle civil claims for smaller monetary amounts (the maximum claim limit varies by province, e.g., $35,000 in Ontario). They offer a more streamlined, less formal process often designed for self-represented litigants.
• Provincial/Territorial Superior Courts (or Courts of King’s/Queen’s Bench): These are the trial courts of general jurisdiction in each province/territory. They hear a wide range of civil cases, including personal injury claims, contract disputes, commercial litigation, real estate disputes, and family law matters (though family law often has specialized divisions or separate family courts).
• Provincial/Territorial Courts of Appeal: These courts hear appeals from decisions of the Provincial/Territorial Superior Courts.
• Federal Court: This court has jurisdiction over specific areas of federal law, such as intellectual property (patents, copyrights, trademarks), admiralty (maritime law), federal taxation, and claims against the federal government.
• Federal Court of Appeal: Hears appeals from the Federal Court.
• Supreme Court of Canada: Canada’s highest court. It hears appeals from provincial/territorial Courts of Appeal and the Federal Court of Appeal, but typically only grants “leave to appeal” (permission to hear the case) for matters of national public importance or significant legal principle.

Stages of Civil Litigation in Canada

The civil litigation process can be lengthy and complex, but generally follows these stages:

1. Pre-Litigation/Pre-Action Stage:
   • Cause of Action: A plaintiff must have a valid legal basis (a “cause of action”) to sue.
   • Limitation Periods: Strict time limits exist for commencing a lawsuit (called “limitation periods” or “statutes of limitations”). These vary by province and type of claim (e.g., commonly two years for many tort and contract claims). Failure to file within the limitation period usually bars the claim permanently.
   • Investigation and Research: Lawyers gather facts, assess evidence, identify potential parties, and research applicable law.
   • Demand Letter: Often, a formal demand letter is sent to the prospective defendant, outlining the claim and seeking a resolution before litigation begins.
   • Alternative Dispute Resolution (ADR): Parties are often encouraged, and sometimes required by court rules, to explore ADR methods like negotiation, mediation, or arbitration to settle the dispute without going to trial. Most civil cases in Canada settle before trial.
2. Commencement of Action (Pleadings Stage):
   • Originating Process: The lawsuit is initiated by filing a formal document with the court. This is typically a Statement of Claim (or Notice of Civil Claim in BC, Originating Application in Quebec) which sets out the plaintiff’s allegations, the legal basis for the claim, and the relief sought.
   • Service: The originating process must be formally “served” on the defendant(s) to officially notify them of the lawsuit. Proper service is crucial for the court to have jurisdiction over the defendant.
   • Statement of Defence: Upon being served, the defendant must file a Statement of Defence (or similar document) outlining their response to the allegations, their version of the facts, and any legal defences they intend to rely on.
   • Counterclaim/Cross-claim/Third-Party Claim: A defendant may file a counterclaim if they have a claim against the plaintiff, a cross-claim against another defendant, or a third-party claim to bring another party into the lawsuit.
   • Reply: The plaintiff may file a Reply to respond to new allegations raised in the Statement of Defence.
3. Discovery Stage:
   • This is a crucial phase where parties exchange information and evidence to fully understand each other’s cases.
   • Document Discovery: Parties exchange “Affidavits of Documents” (or similar lists) detailing all relevant documents in their possession, power, or control, which are then often available for inspection by the other side.
   • Examinations for Discovery: Lawyers for each side question the opposing party (and sometimes non-parties) under oath outside of court. This is recorded by a court reporter and helps clarify facts, obtain admissions, assess credibility, and narrow the issues for trial.
4. Pre-Trial Procedures & Settlement Discussions:
   • Motions: Parties may bring various “motions” (interlocutory applications) to the court to resolve procedural issues, compel discovery, seek interim orders (e.g., interim injunctions, preservation of property), or to strike out parts of a claim/defence.
   • Mediation/Settlement Conferences: Many jurisdictions have mandatory or encouraged mediation sessions where a neutral third party (the mediator) helps facilitate settlement discussions. Pre-trial conferences with a judge are also common to narrow issues and encourage settlement.
   • Offers to Settle: Parties often exchange formal offers to settle. If an offer is refused and the eventual judgment is less favourable to the refusing party, there can be cost consequences (penalties in terms of who pays legal costs).
5. Trial:
   • If the case does not settle, it proceeds to trial.
   • Presentation of Evidence: Parties present their evidence through witness testimony (oral testimony, written witness statements/affidavits), documentary evidence, and sometimes expert witness testimony.
   • Cross-Examination: Witnesses are subject to cross-examination by the opposing counsel.
   • Final Arguments: At the close of evidence, lawyers present their final oral or written arguments to the judge (or jury, if applicable).
   • Judge’s Role: The judge manages the trial, rules on evidence, and interprets the law. In civil cases, juries are less common than in criminal cases, but they are available for certain types of claims in some provinces.
   • Judgment: The judge delivers a judgment, which is the court’s final decision, outlining the findings of fact, the application of law, and the remedies awarded.
6. Enforcement of Judgment:
   • If the losing party (judgment debtor) does not comply with the judgment, the winning party (judgment creditor) can take steps to enforce it. Enforcement mechanisms vary by province but can include:
     • Garnishment: Seizing money owed to the judgment debtor by a third party (e.g., bank accounts, wages).
     • Writs of Seizure and Sale: Seizing and selling the judgment debtor’s property (personal property, land).
     • Charging Orders: Against shares or other financial assets.
     • Contempt of Court: For failure to obey a court order (like an injunction).
7. Appeals:
   • A party dissatisfied with a judgment can appeal to a higher court within specific time limits. Appeals typically focus on errors of law or fact made by the trial judge, not a re-hearing of all the evidence.

Common Types of Civil Cases in Canada

• Personal Injury Claims: Accidents (motor vehicle, slip and fall), medical malpractice, product liability.
• Contract Disputes: Breach of contract, enforcement of agreements.
• Property Disputes: Real estate transactions, landlord-tenant issues, boundary disputes.
• Employment Law Disputes: Wrongful dismissal, harassment, breach of employment contracts.
• Family Law: Divorce, separation, child custody, spousal support, division of property (often handled in specialized family courts or divisions).
• Commercial/Business Disputes: Shareholder disputes, partnership disputes, intellectual property infringement.
• Defamation: Libel (written) or slander (spoken) damaging reputation.
• Professional Negligence: Claims against lawyers, accountants, engineers, etc., for failing to meet professional standards.
• Construction Law Disputes: Contract breaches, construction defects, builder’s liens.
• Class Actions: Lawsuits where a large group of people with similar claims sue a common defendant.

Remedies in Civil Litigation

The goal of civil remedies is generally to put the aggrieved party in the position they would have been in had the wrong not occurred. Common remedies include:

• Damages (Monetary Compensation):
  • General Damages: Non-pecuniary losses (pain and suffering, loss of enjoyment of life, disfigurement). In Canada, there is a judicially imposed “cap” on general damages for the most severe non-pecuniary losses in personal injury cases (adjusted for inflation, currently over $400,000).
  • Special Damages: Quantifiable pecuniary losses (past lost income, medical expenses, property damage).
  • Future Pecuniary Damages: Future loss of earning capacity, future care costs.
  • Punitive/Aggravated Damages: Rarely awarded, to punish particularly egregious conduct, not primarily to compensate.
  • Nominal Damages: A small sum where a right was breached but no actual loss occurred.
• Injunctions: Court orders requiring a party to do or refrain from doing something.
• Specific Performance: An order compelling a party to perform a specific act, often used in contract law (e.g., to complete a land sale) where damages are not an adequate remedy.
• Declaratory Relief: A court declaration clarifying the legal rights or obligations of parties.
• Rescission: Cancellation of a contract, restoring parties to their pre-contractual positions.
• Restitution: To restore a benefit unjustly obtained by one party at the expense of another.
• Account of Profits: An order compelling a defendant to hand over profits made from wrongful conduct (e.g., intellectual property infringement).

Conclusion

Civil litigation in Canada is a robust and multifaceted area of law, designed to provide a fair and accessible mechanism for resolving disputes between private parties. While the specific rules and procedures vary by jurisdiction, the overarching principles of due process, fairness, and the pursuit of just remedies remain consistent. Due to the inherent complexities, costs, and strategic considerations involved, individuals and organizations contemplating or facing civil litigation in Canada are strongly advised to seek experienced legal counsel.