Knowledge Centre

Procedures Guide

November 2013 ,


In Canada, the procedures for litigation vary from province to province and between civil and common law. This guide sets out how the procedures work in each jurisdiction.

Alberta

Edmonton

 

 

Calgary

 

Delay to file an apparence

N/A

Delay File a statement of defence

A Statement of Defence is required 20 days after service of the Statement of Claim (1 month if service is outside Alberta) but this is ordinarily extended on agreement between counsel. Step 1

*Filing a Notice of Intent to Defend provides an additional 10 days to file a Defence. Step 1

Delay to set the case ready for trial

Trial can be set on completion of a Form 37 which confirms the matter is ready for trial including disclosure and exchange of all experts’ reports to be relied on at trial or by application of one of the parties. Step 4

Time to obtain trial dates once the certificate of readiness is issued

Trial dates are set once Form 37 is submitted on agreement between counsel. A case conference can be requested at any stage if necessary to assist counsel. Step 5

Rules of discovery | Delay to examine before plea | Delay to examine after plea

Oral discovery is ordinarily held once affidavits of records are exchanged and are ordinarily set by agreement of counsel but can be done with a formal appointment, if necessary. Step 3

Affidavit of documents: which documents? Under which circumstances?

Production of all relevant and material records is required in all cases and is done early to facilitate evaluation of the parties’ positions. The plaintiff must serve an affidavit of records 3 months after the statement of defence is filed and the defendant must serve an affidavit 2 months after that. An application can be brought at any time by either party for a further and better affidavit. Step 2

Court settlement Conference: a mandatory process or not?

There was a mandatory step added to the Rules of Court recently in Queen’s Bench to attempt settlement either through private mediation or Judicial Dispute Resolution but this requirement has been lifted likely because the system was overloaded with requests for JDR’s. There is always a required pre-trial conference in Provincial Court which is essentially a settlement conference.

Mediation

Mediations can be done anytime on agreement between the parties with a private mediator or a Judge.

Simplified procedures (fast track and Small claims Court) (monetary limits)

The Provincial Court limit is $25,000 and fast tracks cases through the system. In Queen’s Bench cases are categorized as standard or complex cases initially and the steps to be taken vary depending on that categorization. There are also methods of resolving claims without full trials including trial of an issue, summary judgment or summary trial but the use of these is fairly limited.

British Columbia

Victoria

 

 

Vancouver

 

Delay to file an apparence

Not Applicable as Appearance is not required.

Delay File a statement of defence

Response must be filed and served within 21 days of service of Notice of Civil Claim.

Third Party Notice must be filed within 42 days of service of Notice of Civil Claim.

Delay to set the case ready for trial

Trial date may be set once pleadings closed.

Time to obtain trial dates once the certificate of readiness is issued

Trial date may be set once pleadings closed.

Rules of discovery | Delay to examine before plea | Delay to examine after plea

Examination for discovery can be conducted after the pleadings closed.

Affidavit of documents: which documents? Under which circumstances?

List of Documents must be produced within 35 days of close of pleadings and ongoing update if documents discovered. Documents need only be listed to prove or disprove a material fact or if relied upon at trial. More detailed list or affidavit may be required by Court Order.

Court settlement Conference: a mandatory process or not?

Mandatory only in Small Claims Court. Otherwise the parties can jointly request or court can order a judicial settlement conference.

Mediation

Is not mandatory but can be required by Case Planning Judge or Court Order or by a party pursuant to a Notice to Mediate under the Law & Equity Act Notice to Mediate (General) Regulation.

Simplified procedures (fast track and Small claims Court) (monetary limits)

Rule 15 – Fast Track if claim under $100,000 or 3 day trial – costs awarded are limited and mandatory Case Planning Conference.

Small Claims Court limit is $25,000 (no costs allowed, only disbursements).

Manitoba

Winnipeg

 

Delay to file an apparence

Depending on the type of injury there are limitation periods that range from 2 to 6 to10 years after discovery of the circumstances that make up the cause of action. Step 1

Delay File a statement of defence

Must be filed 10 days after receipt of Statement of Claim, unless a waiver is given. Step 2

Delay to set the case ready for trial

A Certificate of Trial Readiness can be filed at any time after the pleadings have closed. For trials which are expected to take 5 days or fewer, the parties may make an application within 90 days of the close of pleadings for a trial date.

By filing the certificate the parties have agreed that they are ready for trial and no applications may be brought or continued relating to circumstances which were apparent before the Certificate was filed without leave of the court, and there may be no further discovery. Step 5

Time to obtain trial dates once the certificate of readiness is issued

Once the Certificates are filed, the matter goes on the pre-trial conference list. It is at the pre-trial conference that the judge determines what the next step is. It could be a setting down a date for a settlement conference, mini-trial, summary or expedited trial, removing it from the Pre-Trial List, or setting it down for trial.

This is based on the court’s schedule. Step 7

Rules of discovery | Delay to examine before plea | Delay to examine after plea

Examination for Discovery can occur any time after pleadings are closed without an order. An order is necessary before an action is commenced with an ex parte application, or before pleadings are closed with an inter partes application. Step 4

Affidavit of documents: which documents? Under which circumstances?

Called a “List of Documents” in this jurisdiction. Must be filed 10 days after the close of pleadings or 7 days after service of originating document where there are no pleadings.

Must serve on the opposing party true copies of “Documents of which the party has knowledge at that time relating to every matter in question in the proceeding.”

Excepted from production are documents over which a party is claiming privilege. Step 3

Court settlement Conference: a mandatory process or not?

Called a “List of Documents” in this jurisdiction. Must be filed 10 days after the close of pleadings or 7 days after service of originating document where there are no pleadings.

Must serve on the opposing party true copies of “Documents of which the party has knowledge at that time relating to every matter in question in the proceeding.”

Excepted from production are documents over which a party is claiming privilege. Step 3

Mediation

Mediation may be used by consent of both parties. One party may apply or the court may order of its own accord that the parties attend mediation.

Simplified procedures (fast track and Small claims Court) (monetary limits)

Small claims. $25,000.00

New Brunswick

Fredericton, St John, Moncton

 

Delay to file an apparence

  • No appearance
  • Plaintiff files Statement of Claim before expiry of limitation period
  • 6 months to serve the Notice of Action and Statement of Claim attached after it is filed with the Court

Delay File a statement of defence

  • 20 days after being served with the Notice of Action with Statement of Claim, if in NB
  • 40 days if in another province or territory or the United States of America
  • 60 days if outside of Canada and the United States of America
  • Notice of Intent to Defend can be filed by defendant during above-mention periods for additional 10 days to file defence

Delay to set the case ready for trial

  • After all pleadings are closed and all pre-trial procedures have been completed
  • Any party who is not in default under the Rules of Court or under any order of the Court may  set the matter down by serving a Notice of Trial and a Trial Record on the other party and filing it with the Court with proof of service 
  • Notice of Trial and Trial Record must be filed and served at least 14 days prior to Motions Day

Delay to obtain trial dates once the certificate of readiness is issued.

  • Varies depending on the jurisdiction

Rules of discovery | Delay to examine before plea | Delay to examine after plea

  • No plea entered
  • Any party to an action may examine for discovery, once, any other party who is adverse in interest
  • Undertakings are given to the parties during discovery and it usually takes between 2 to 3 months to obtain answers to undertakings
  • Must obtain Court permission to examine non parties

Affidavit of documents: which documents? Under which circumstances?

  • Notice Requiring Affidavit of Documents (Form 31A)
  • The party receiving the Notice Requiring Affidavit of Documents has 10 days to file and serve on every other party an Affidavit of Documents
  • Affidavit of Documents contains list and description of all documents related to a matter in issue in the action
  • Documents in the possession or control of a party to the action must be produced for inspection upon request, unless they are privileged

Court settlement Conference: a mandatory process or not?

Mandatory

Mediation

Not mandatory

Simplified procedures (fast track and Small claims Court) (monetary limits)

  • Rule 79 – Simplified procedure (for claims under $75,000.00);
  • Small Claims Act (for all claims of $12,500.00 or less)

Newfoundland

St John’s

 

Delay to file an apparence

Rule 38: Applies to Applications only. Party served with an Application shall file a Notice of Appearance at least three (3) days before the hearing

Delay File a statement of defence

Rule 18: 20 days after service of the Statement of Claim if in the province; 40 days if out of province but in the US/Canada; 60 days if anywhere else.

*Filing a Notice of Intent to Defend provides an additional 10 days to file a Defence. Step 1

Delay to set the case ready for trial

Rule 48: Anytime after the close of pleadings a party may serve and file a request for trial and trial record on all parties.

Time to obtain trial dates once the certificate of readiness is issued

Rule 48: The Registrar shall forthwith arrange to set the matter down for trial following service and filing of the request for trial and trial record

Rules of discovery | Delay to examine before plea | Delay to examine after plea

Rule 31: May examine a party after delivery of statement of defence and, unless the parties agree otherwise, after serving an affidavit of documents Step 3

Affidavit of documents: which documents? Under which circumstances?

Rule 30: All relevant documents in the possession, control or power of a party to the action. To be served within 10 days of the close of pleadings. Step 2

Court settlement Conference: a mandatory process or not?

Settlement Conferences are available but not mandatory.

Mediation

No Rule – Available anytime

Simplified procedures (fast track and Small claims Court) (monetary limits)

Simplified Procedure – Rule 75.1: No Limit. Small Claims – Rule 74: $8,000

Nova Scotia

Halifax

 

Delay to file an apparence

Limitations are generally between one and six years from the date the cause of action arose, depending on the cause of action. See the Limitations of Actions Act, R.S.N.S. 1989, c. 258, s. 1 for further details. Step 1

Time to deliver a statement of defence

The Notice and Statement of Defence must be filed 15 days after being served in Nova Scotia, 30 day after being served elsewhere in Canada, and 45 days after being served outside of Canada. Rule 31.12. Step 2

Delay to set the case ready for trial

A Date Assignment Conference may be sought any time after pleadings close, and documentary disclosure and discovery examinations are complete. Rule 4.13. Step 5

Delay to obtain trial dates once the certificate of readiness is issued.

This will depend on the court schedule. There is no guarantee of trial dates within a certain time-frame. Step 6

Rules of discovery | Delay to examine before plea | Delay to examine after plea

Discovery examinations can be scheduled any time after pleadings close. Rule 18.02.  In Nova Scotia, it is standard practice for discovery examinations to take place after documentary disclosure. Step 4

Affidavit of documents: which documents? Under which circumstances?

Parties must exchange Affidavits Disclosing Documents no more than 45 days after pleadings close. These do not need to be filed with the Court. They should contain all documents which are relevant to a party’s case and under a party’s control. Rule 15. Step 4

Court settlement Conference: a mandatory process or not?

Settlement conferences are not mandatory in Nova Scotia, but are available at any stage of a proceeding. Rule 10.11. Step 7

Mediation

Mediation is not a mandatory process in Nova Scotia. Step 8

Simplified procedures (fast track and Small claims Court) (monetary limits)

Rule 57 fast-tracks proceedings that involve less than $100,000. Discovery examinations are limited and a date assignment conference can be requested any time after pleadings close.

Applications in Chambers or in court are available as alternatives to court actions.  Both involve restrictions on evidence and discovery examinations.  A court Application may be appropriate where the length of the hearing and the number of witnesses can be pre-determined.  Rule 5.07.  A Chambers Application is typically reserved for hearings that will take less than a half-day.  Rule 5.06.

Small Claims Court has a monetary limit of $25,000.  It does not have any disclosure or discovery rules. Hearings are typically scheduled approximately six weeks after the claim is filed.

Ontario

Ottawa

 

 

Toronto

 

Delay to file an apparence

  • Not relevant for Ontario.
  • In Ontario, the statement of claim must be served within 6 months of its delivery to the registrar.

Delay File a statement of defence

  • The defendant must submit a defence within 20 days of service of the statement of claim.
  • The defendant may submit a notice of intent to present a defence in order to be granted an additional 10 days.

Delay to set the case ready for trial

  • After the defence is filed, the action must be set down for trial within two years.
  • Method for setting a case ready for trial: the party that wishes it set for trial serves a trial record on the plaintiff and then promptly files the proof of service (Rule 48.02)

Delay to obtain trial dates once the certificate of readiness is issued.

  • Not relevant for Ontario

Rules of discovery | Delay to examine before plea | Delay to examine after plea

  • Once the written proceedings in an action are closed, the parties must develop a discovery plan within 60 days. The discovery plan must include the deadline for and the expected scope of the communication of documents and a discovery timetable.
  • There are two parts to discovery:
    • Communication of documents (Rule 30): The parties must disclose the existence of all documents and produce the documents not covered by privilege.
    • Examination for discovery (Rule 31): mandatory disclosure prior to trial by a party to the case, under oath, of everything that party knows and believes regarding the facts and evidence relevant to the matters in issue.

Affidavit of documents: which documents? Under which circumstances?

The disclosure obligation is satisfied by swearing an oath and by service of an affidavit of documents (Rule 30.03). All parties must serve on every other party an affidavit of documents disclosing to the full extent of the party’s knowledge, information and belief all documents relevant to any matter in issue in the action that are or have been in the party’s possession, control or power (Rule 30.03(1)). All parties must produce the documents not covered by privilege.

Court settlement Conference: a mandatory process or not?

  • Within 180 days of the setting down of an action for trial, the parties must set a date and time with the registrar to appear for a pre-trial conference before a judge or case management master.

Mediation

  • Mediation is compulsory and is required within 180 days of the filing of the defence. This rule applies to actions instituted in the City of Ottawa, the City of Toronto and Essex County.
  • Once the action is set down for trial, mediation must either already have taken place or take place within 90 days.

Simplified procedures (fast track and Small claims Court) (monetary limits)

  • Small Claims Court: limit of $25,000
  • Simplified procedure (Rule 76): limit of $100,000 but the plaintiff may elect to follow this procedure in all cases unless the defendant objects. No party may conduct oral examinations for discovery for more than two hours. The parties must adduce their evidence by affidavit and they are allowed 10 minutes to examine the deponent at the summary trial. Each party is limited to 45 minutes for its oral arguments.

PEI

Charlottetown, Alberton, Summerside, Montague

 

Delay to file an apparence

Rule 38:Rule 38: Applies to Applications only. Party served with an Application shall file a Notice of Appearance at least three (3) days before the hearing

Delay File a statement of defence

Rule 18: 20 days after service of the Statement of Claim if in the province; 40 days if out of province but in the US/Canada; 60 days if anywhere else.

*Filing a Notice of Intent to Defend provides an additional 10 days to file a Defence. Step 1

Delay to set the case ready for trial

Rule 48: Anytime after the close of pleadings a party may serve and file a request for trial and trial record on all parties.

Time to obtain trial dates once the certificate of readiness is issued

Rule 48: The Registrar shall forthwith arrange to set the matter down for trial following service and filing of the request for trial and trial record

Rules of discovery | Delay to examine before plea | Delay to examine after plea

Rule 31: May examine a party after delivery of statement of defence and, unless the parties agree otherwise, after serving an affidavit of documents Step 3

Affidavit of documents: which documents? Under which circumstances?

Rule 30: All relevant documents in the possession, control or power of a party to the action. To be served within 10 days of the close of pleadings. Step 2

Court settlement Conference: a mandatory process or not?

Rule 50: Not mandatory Step 4

Mediation

No Rule – Available anytime

Simplified procedures (fast track and Small claims Court) (monetary limits)

Simplified Procedure – Rule 75.1: Limit $25,000 unless both parties agree to proceed by Simplified Procedure. No discoveries; witnesses provide “will say” statements instead.

Small Claims – Rule 74: $8,000

Quebec

Montreal

 

 

Quebec

 

Delay to file an apparence

10 days after the service of the motion to institute proceedings (Section 192 of the Code of Civil Procedure).

Delay File a statement of defence

Variable. The delay has been negotiated by the parties in the agreement as to the conduct of the proceeding (Sections 151.1 to 151.3 of the Code of Civil Procedure).

Delay to set the case ready for trial

180 days after the service of the motion to institute proceedings, unless the Court extends the delay (complexity of the case or special circumstances) (Section 110.1 of the Code of Civil Procedure).

Delay to obtain trial dates once the certificate of readiness is issued.

Varies from a few months to two years depending on the duration of the hearing and the judicial district where the case is heard.

Rules of discovery | Delay to examine before plea | Delay to examine after plea

The delays are provided in the agreement as to the conduct of the proceeding negotiated by the parties. The examinations must be held before filing the declaration that the file is complete.

  • Before plea: examination on all the facts relating to the claim.
  • After plea: examination upon all facts relating to the issues between the parties.

Who can be examined? the plaintiff, his representative, agent or employee; the victim, any person involved in the commission of the act which caused the injury; the person for whom the plaintiff claims as tutor or curator, or for who he acts as prête-nom, or whose rights he has acquired by transfer, subrogation or other similar title; any other party, or his representative, agent or employee; and, with the permission of the court, and on such conditions as it may determine, any other person (Sections 396.1 à 398.2 of the Code of Civil Procedure).

Affidavit of documents: which documents? Under which circumstances?

Not applicable in Quebec.

Some motions require an affidavit, including all motions made during the proceedings (Section 88 of the Code of Civil Procedure).

Court settlement Conference: a mandatory process or not?

Voluntary process that does not suspend the proceedings. In the district of Montreal, the settlement conference will not take place if the trial date has been set, unless under exceptional circumstances (Sections 151.14 to 151.23 of the Code of Civil Procedure).

Mediation

Voluntary process and independent from the settlement conference. The mediator’s fees shall be borne by the parties.

Free mediation service available at the Small claims Court (Sections 973 of the Code of Civil procedure).

In family matters, the parties are required to attend an information session on the mediation process (Sections 814.3 et seq. of the Code of Civil Procedure).

Simplified procedures (fast track and Small claims Court) (monetary limits)

In some matters, the defense is oral and the 180 days delay to set the case ready for trial does not apply (Section 175.2 of the Code of Civil Procedure).

The limit for the jurisdiction of the Small claims Court is $7,000.00, regardless of the interests.

Saskatchewan

Regina and Saskatoon

 

Delay to file an apparence

N/A

Delay File a statement of defence

Twenty days if served in Saskatchewan; normally extended by agreement Step 2

Delay to set the case ready for trial

No fixed schedule; trial date set following pretrial settlement conference; normally within 6 – 12 months. Step 8

Time to obtain trial dates once the certificate of readiness is issued

Pre-trial settlement conference follows certificate of readiness, usually within 6 months. Step 6

Rules of discovery | Delay to examine before plea | Delay to examine after plea

By demand or agreement; any time after Defence filed and Affidavit of Documents completed. Step 5

Affidavit of documents: which documents? Under which circumstances?

Required in all claims; Within 10 days after Defence filed or on demand; normally extended by agreement. Step 4

Court settlement Conference: a mandatory process or not?

Pre-trial settlement conference (judicial mediation) mandatory before trial date set. Step 7

Mediation

Mandatory mediation after defence filed and before any further steps. Step 3

Simplified procedures (fast track and Small claims Court) (monetary limits)

Expedited procedure for claims less than $100,000. Small Claims court limit $20,000. Step 1

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