1 Introduction to the Canadian Legal System
Learning Objectives
- Examine the underlying value of laws and their role in upholding fairness, justice, and equality in Canadian society.
- Explore the historical traditions that have shaped the Canadian legal system, including the influence of British common law and French civil law traditions.
- Recognize the roles of different parties involved in legal disputes, such as plaintiffs, defendants, and legal professionals.
- Learn the steps involved in the litigation process, from the initiation of a lawsuit to the final judgment
- Understand alternative dispute resolution methods, such as mediation and arbitration, and their utility relative to litigation.
In this chapter, we will be discussing the foundational building blocks of the Canadian legal system. In some ways, this is the most important starting part because, to truly understand some of the law we will learn later in the text, we also need to explore the underlying value of laws and their role in regulating conduct. This discussion will engage concepts such as the rule of law and its significance in upholding fairness, justice, and equality.
Additionally, we will look at some of the historical traditions that shaped (and continue to shape) our legal system. We will examine the influence of British common law and French civil law, which forms the basis of Canadian jurisprudence.
Finally, we will delve into the steps of the litigation process, exploring the various stages involved including the initiation of the lawsuit, all way to the final judgment.
While some of this backdrop will feel historical, as we will soon see, so much of Canadian law is influenced by the very structure of the legal system.
Rules versus Laws
Our lives are heavily guided by both “rules” and “laws”. It’s obvious that without such structures, it would be different to organize and maintain society. However, what is the difference between the two?
“Rules” refer to guidelines established by specific institutions or organizations, such as schools or workplaces, to regulate conduct and ensure smooth functioning within their respective environments. Rules are often more flexible and can be subject to change or adaptation based on the situation. Think about all the rules we might say influence our conduct. For example, an informal rule might say we should cut in front of someone in a line-up at a sporting event or concert. What regulates this behaviour is not a “law”; there would be no prosecution or legal claim that could arise from cutting in the line. But, despite the lack of legal mechanism to enforce compliance, it does still shape our conduct, it is still a rule.
On the other hand, “laws” are official regulations and rules established by a governing body, usually a legislative authority, to govern the behaviour of individuals and maintain social order within a larger society. Laws are generally more rigid and binding, enforced by the legal system with prescribed penalties for non-compliance. They are designed to apply universally and govern actions that have broader implications for society as a whole.
Bedrock of the Common Law
As will be discussed, the bedrock of the Canadian legal system is the “common law”. Further, the essence of how the common law provides answers to legal answers is found in an old Latin concept called, stare decisis:
“Stare Decisis” = “To Stand By Things Decided”
As a legal doctrine, stare decisis emphasizes the importance of respecting prior court decisions — what we call following precedent. The idea is that by consistently reinforcing the court’s prior decisions, this will ensure consistency, predictability, and stability in the legal system. All individuals can be confident of what the law says because judges are bound to follow the previously determined cases. Placing deference on prior cases also allows law to evolve gradually over time, rather than changing abruptly with each new case.
For example, imagine an employee, Leeza, believes that she has been subjected to discriminatory treatment by her employer based on her gender. Leeza decides to take legal action and files a lawsuit alleging employment discrimination. When the court examines Leeza’s case, it will refer to previous judgments in similar cases involving gender discrimination. It will assess whether the facts and circumstances of Leeza’s case are comparable to those of previous cases where discrimination claims were upheld or dismissed. The court will analyze the legal principles and reasoning applied in those earlier decisions to guide the determination in Leeza’s case.
Ultimately, stare decisis ensures that Leeza’s case is not treated in isolation. By relying on past decisions, the court can maintain consistency and fairness in its rulings.
The application of stare decisis can vary from one jurisdiction to another, and courts may choose to depart from precedent in certain circumstances. Perhaps, a court will choose to depart from precedent if the previous decision was wrongly decided, if the legal landscape has changed significantly since the previous decision was made, or if the previous decision is no longer in line with current societal values. However, these situations are generally the exception rather than the rule, and courts generally follow precedent unless there is a compelling reason not to do so.
Foundational Law — Overriding Stare Decisis
There have been a few notable instances where Canadian court’s have veered away from the pure application of stare decisis. One major pivot was in “Medical Assistance in Dying (MAiD)” – can an individual choose to have medical assistance in their death? The legality of MAiD was considered in two judgments of the Supreme Court of Canada: Rodriguez v. British Columbia (Attorney General), 3 SCR 519 in 1993 and then later Carter v Canada (Attorney General), 2015 SCC 5 from 2015.
In the first case, Sue Rodriguez, a woman suffering from amyotrophic lateral sclerosis (ALS), sought the right to access assisted suicide to end her life. However, at the time, there was a Criminal Code prohibition on assisted suicide. In 1993, the Supreme Court of Canada heard her challenge and ruled against her, stating that the prohibition on assisted suicide was constitutional. The Court concluded that the Canadian Charter of Rights and Freedoms (discussed later) did not encompass a right to assisted suicide.
However, in 2015, another terminally ill patient named Gloria Taylor, who was also diagnosed with ALS, challenged the constitutionality of the prohibition on assisted suicide in Carter v. Canada (Attorney General). In Taylor’s case, the Supreme Court of Canada revisited the same issue of assisted suicide, but this time the court held that the prohibition on assisted suicide was unlawful. The court recognized that the ban on assisted suicide imposed unnecessary suffering on individuals who were grievously and irremediably ill, and it declared that certain exemptions should be made to allow physician-assisted dying.
The court’s decision in Carter effectively overruled the Rodriguez decision from 1993. How the could the law so fundamentally reverse itself in just 22 years? The answer is that the Supreme Court of Canada found that there were significant changes in societal attitudes, legal developments, and the availability of evidence and arguments that were not present in the earlier case. The court acknowledged the evolving understanding of individual autonomy and the right to make decisions about one’s own life, especially in the context of terminal illnesses. The Carter decision has had a profound impact on Canadian law and resulted in the federal government passing legislation in 2016 to regulate MAiD.
Origins of the Canadian Legal System
An interesting facet of the Canadian legal system is that it operates as a duality meaning, there are actually two legal systems operating at the exact same time. The two systems are the civil law system operating in the province of Quebec and the common law system operating in the rest of the provinces and territories. This duality emerged historically because of the influence of both the French and British in shaping the country.
The Civil Law System
Canada’s Civil Law tradition is derived from the legal systems of France and other European countries influenced by Roman law. It places emphasis on comprehensive “codes” that provide the basis for legal principles and regulations. Civil law relies less on case law and more on the interpretation and application of central legal codes.
Quebec is the only Canadian province or territory utilizing a civil law model. The development of the civil law system is largely a reflection of the French colonial experience in what is now Quebec. In the 16th century, French explorers, such as Jacques Cartier, began exploring and establishing settlements. The first permanent French settlement was established in 1608 in Quebec City by Samuel de Champlain. These French settlers brought with them the legal traditions and practices of France, including the civil law system based on Roman law. When France ultimately ceded its territories in North America to Britain in the 18th century, the French civil law system remained in place in Quebec; this decision was made, in part, to maintain the distinctiveness of Quebec’s legal system.
In 1866, the Civil Code of Quebec was officially adopted as a comprehensive legal code governing private law matters, such as property, contracts, and civil liability, within the province. The civil law system continues to thrive in Quebec and, through its code-based system, provides a mechanism for solving legal disputes.
The Common Law System
Canadian common law finds its origins in medieval England. During the Middle Ages, legal cases and questions were determined by local courts. There was no centralized decision-maker nor a central code in which to find legal answers. Instead, over time the doctrine of precedent emerged requiring that decision-makers respect the decisions that had been previously decided.
In the 16th and 17th centuries, courts such as the Court of Chancery and the King’s Bench were responsible for issuing decisions that would serve as precedent for future cases. After the British colonies were established in North America, English common law principles were then imported.
However, a question emerged about whether the common law or civil law would be the foundational legal system for the country at large. In part, this was settled by the Battle of Quebec, which took place in 1759 during the Seven Years’ War, and was fought between British and French forces. Ultimately, the British were victorious, led by General James Wolfe and, as a result of the victory, Canada came under British control. Thus, the common law system was adopted and reigned supreme — that is except for what is now Quebec.
Role of Equity
“Equity” is another branch of law which also emerged from England. Equity is a system of justice that developed as a way to provide a more flexible and individualized approach to resolving disputes. It involves the application of fairness and justice in cases where the strict application of the law would lead to an unfair or unjust result. Where equity is used, the decision-maker has the power to fashion a remedy that is appropriate to the specific circumstances of the case and not be strictly beholden to the precedent.
In the modern Canadian legal system, law and equity are often treated as distinct bodies of law, but they may also be blended together in various ways. For example, in many Canadian courts a judge has the power to award both legal and “equitable” remedies in a single case. Such “equitable remedies” including injunctions (a court order requiring someone to do or refrain from doing something), specific performance (an order requiring someone to carry out a contract as agreed), or others that we will be canvassed in later chapters.
Indigenous Law and Recognition
Understanding the roots of the modern Canadian legal system requires a recognition of what occurred prior to the arrival of French and British colonists. Indigenous legal systems existed for thousands of years on today’s unceded land. Speaking very generally, Indigenous rules and legal principles encompass a holistic approach to law, encompassing social, economic, spiritual, and environmental aspects of life.
The notions of “Indigenous law” and “Aboriginal law” are separate and distinct and one should be careful in how those terms are used. Below is a fantastic overview of the distinction by Estella White (Charleson) – Hee Naih Cha Chist:
“Indigenous law exists as a source of law apart from the common and civil legal traditions in Canada. Importantly, Indigenous laws also exist apart from Aboriginal law, though these sources of law are interconnected. Aboriginal law is a body of law, made by the courts and legislatures, that largely deals with the unique constitutional rights of Aboriginal peoples and the relationship between Aboriginal peoples and the Crown. Aboriginal law is largely found in colonial instruments (such as the Royal Proclamation of 1763, the Constitution Acts of 1867 and 1982 and the Indian Act) and court decisions, but also includes sources of Indigenous law.”
Estella White (Charleson) – Hee Naih Cha Chist, “Making Space for Indigenous Law,”
http://jfklaw.ca/making-space-for-indigenous-law/
In recent years, there has been a growing recognition of the importance of Indigenous law within the Canadian legal framework both in its historical context, but also in modern application. Efforts are underway to incorporate Indigenous legal principles into various aspects of Canadian legal system such as restorative justice and treaty-building, in the hopes of better recognizing the rights and jurisdiction of Indigenous peoples and promoting equality, reconciliation, and decolonization.
Types of Legal Disputes in Canada
Another duality that exists in the Canadian legal system is that it is divided into two main branches: public law and private law. These branches encompass different areas of law and govern distinct types of legal disputes. Therefore, not every dispute is going to be handled the same or engage the same legal processes.
Public law deals with the relationships between individuals and the government or government entities. Public law sets out the rules and regulations that govern the exercise of power by the government and ensures the protection of public rights and interests. Some key areas of public law include:
- Constitutional Law – Involves the interpretation and application of the Canadian Constitution, which outlines the fundamental principles and structures of the country’s government. Constitutional law disputes involve issues related to the distribution of powers between the federal and provincial governments, the protection of individual rights and freedoms, and the validity of governmental laws and actions.
- Administrative Law – Focuses on the actions and decisions of government agencies, boards, and tribunals. It regulates the exercise of administrative power, including the procedures followed by government entities and the legality of their decisions. Disputes in administrative law may arise when a person challenges a government decision or seeks remedies for actions taken by administrative bodies.
- Criminal Law – Focuses on offenses against society as a whole rather than individual disputes. It involves actions or omissions that are considered crimes and is enforced by the state through prosecution. Criminal law addresses “offenses” such as theft, assault, murder, and drug trafficking. The burden of proof lies with the prosecution, and if found guilty, the defendant may face penalties such as fines, imprisonment, or probation.
Private law governs the legal relationships between individuals, organizations, or private entities. It deals with the rights and obligations of individuals in their interactions with one another and provides the framework for resolving disputes between private parties. Some key areas of private law include the following:
- Contract Law – Deals with agreements between parties that create legally enforceable obligations. It governs issues such as the formation, interpretation, and performance of contracts.
- Tort Law – Covers civil wrongs or injuries caused by one party to another. It includes claims for personal injury, negligence, defamation, and other wrongful acts. Tort law allows injured parties to seek compensation for the harm suffered due to the actions or omissions of others.
- Property Law – Addresses the rights and obligations related to real and personal property. It includes ownership, transfer, and use of land, buildings, and other assets. If there is an interference with a form of property, the victim may seek compensation.
Much of this textbook’s focus will be private law however, some attention will be paid to public law issues.
The Court Levels
In order to understand the process of resolving legal disputes, we must also understand where such disputes are heard.
Courts are independent bodies that have the authority to interpret and apply the law, resolve disputes, and ensure the protection of individual rights and freedoms. The primary function of courts is to resolve legal disputes through a fair and impartial process. They listen to the arguments presented by parties involved in a case, assess the evidence, and make decisions based on the law. Courts have the power to determine guilt or innocence in criminal matters and liability or damages in civil cases.
Not all courts are created equally. While they all have powers to resolve disputes, some courts have the ability to create more binding precedent and some have jurisdiction to hear a wider array of disputes or issues.
As you can see from the following image*, the Canadian court system is hierarchical with a series of higher and lower-level courts:
In the upcoming section, we examine most of these court levels including their structure and jurisdiction.
The Supreme Court of Canada
At the top of the court hierarchy is the Supreme Court of Canada (SCC) and, as such, the decisions of the SCC are binding on all other courts in the country.
The SCC is Canada’s highest court and the final court of appeal for all legal matters in the country. The court hears appeals from the federal courts of appeal and the provincial and territorial courts of appeal. The SCC also has the power to hear reference cases, which are questions referred to the court by the federal or a provincial government for an opinion on a point of law. The court itself is composed of nine justices appointed by the Governor-General of Canada on the advice of the Prime Minister.
Cases to the SCC are on permitted on leave from the court. In order for a case to be heard by the SCC, the party seeking to appeal must submit an application for leave to appeal. This application includes written arguments explaining why the Court should hear the case and typically requires a justification for why the underlying issues are of national importance. The leave to appeal process allows the Court to exercise its discretion in determining which cases it will hear.
If leave to appeal is denied, it means the Court has decided not to hear the case and the decision of the lower court stands. If leave to appeal is granted, the case proceeds to a hearing. The parties then present their arguments before the justices, who then deliberate and render a judgment. The SCC’s decision in the appeal becomes the final ruling on the matter.
The Court has a limited capacity to hear cases due to the fact it sits only nine judges. As such, the Court typically hears only around 70 to 80 cases annually.
External Resource
Click the following link to watch archived webcasts of SCC hearings:
https://www.scc-csc.ca/case-dossier/info/webcasts-webdiffusions-eng.aspx
The Courts of Appeal
The courts of appeal are the highest court in each individual province and territory. They are the intermediate appellate courts situated between the trial courts (such as provincial supreme courts and federal courts) and the SCC.
The primary function of the courts of appeal is to review decisions made by lower courts or administrative bodies to ensure the correct application of the facts and law. The courts of appeal do not re-try cases; instead, they focus on legal issues, such as errors in law, errors in fact, or procedural irregularities. Appellate courts do not consider new evidence or reassess witness credibility.
When a party is dissatisfied with a decision from a lower court or tribunal, they may file an appeal to the relevant court of appeal. The appellant (the party appealing) presents arguments explaining why the lower court’s decision was incorrect or unjust, while the respondent (the opposing party) defends the lower court’s decision. The appellate judges review the written submissions, the record of the lower court, and often hear oral arguments from the parties’ legal representatives.
In most cases, appellate panels in Canada consist of three judges. This three-judge panel is commonly referred to as a “division” or a “panel” of the court of appeal. The three judges hear and decide the appeal collectively. However, there are instances where a court of appeal may sit with a larger number of judges. For particularly complex or significant cases, an appeal may be heard by a larger panel, such as five judges. This larger panel is often referred to as an “en banc” hearing; these are less common and usually reserved for cases of significant public interest or those involving novel legal questions.
The Supreme/Superior Courts
Generally, the superior or supreme level of court serves as the general trial court for most civil and criminal matters. This court level is principally responsible for handling more serious and complex trials, including major criminal offenses, high-value civil disputes, and family law matters.
While the superior/supreme courts have the authority to hear original cases, they also have the power to hear appeals from lower level courts — for example, from the provincial small claims court. Accordingly, judges can sit in an appeal capacity and determine whether the lower court’s decision was correct.
In cases at the superior/supreme court level, a single judge presides over the case and is responsible for making decisions; this is known as a judge-alone trial. However, in certain circumstances, particularly in criminal cases involving serious offenses, the accused person may have the right to a trial by jury. In these cases, a judge and a jury work together to decide the outcome of the trial. The judge provides guidance on legal matters, instructs the jury on the law, and ensures the trial proceeds fairly. The jury, consisting of a group of citizens selected from the community, hears the evidence presented in court, deliberates on the facts, and ultimately reaches a verdict.
The name of the superior/supreme court will vary from province to province; so too will the jurisdiction of the court. Below is a brief snapshot of the superior/supreme courts in Canada and the monetary jurisdiction for civil disputes.
The Provincial Courts
The provincial courts are the main trial court in the province and is typically, the first level of court for most legal proceedings. As noted above, decisions of the provincial courts can also be appealed to the Supreme/Superior Courts.
The provincial courts have both criminal and civil jurisdiction, and hear a wide range of cases including criminal offenses, family disputes, small claims, and traffic offenses. One of the most common areas of provincial court is the small claims division which hears disputes below the monetary threshold of the Supreme/Superior court. For example, the British Columbia Provincial Court hears disputes below $35,000 — anything above that amount should be heard in BC Supreme Court.
British Columbia’s Civil Resolution Tribunal
While laws and courts can be slow to adapt to new technology, the province of British Columbia has been at the forefront of embracing technology to resolve legal disputes. In 2017, the Province launched an ingenious new online tribunal (the first in Canada) to handle low value legal disputes.
The Civil Resolution Tribunal (CRT) is a specialized online tribunal that deals with disputes under $5,000, and certain strata property and motor vehicle matters. The tribunal is similar to a court as it resolves legal disputes between parties however, the proceedings are conducted online and the parties are almost always self-represented. As a result, the tribunal allows a flexible, low-cost, and accessible form of dispute resolution.
One of the major goals of the CRT is to enhance access to justice and reduce the financial barriers which may prevent individuals from seeking legal redress. As such, the fees associated with bringing a complaint are relatively low. The following represents the CRT filing fees as of 2023:
External Resource
Click the following link to explore the BC Civil Resolution Tribunal website and learn about the process to file a complaint:
https://civilresolutionbc.ca/
Bringing a Legal Claim
Assuming parties are not able to informally resolve their legal dispute, it is likely that one or potentially, both, will commence litigation. Litigation is the process of resolving disputes using the court system. Accordingly, parties bring their dispute through the litigation process for a judge to resolve it.
The following discussion canvasses issues in commencing an action and describes the steps in the litigation process.
Is there Jurisdiction?
The first step in contemplating a legal action is to determine which court has jurisdiction over your case. Jurisdiction refers to the legal authority of a court to hear and decide cases. A person bringing a claim, would want to ensure that the court they are selecting has both “subject-matter jurisdiction” and “personal” jurisdiction.
Subject-matter jurisdiction refers to the authority of a court to hear cases involving certain types of disputes, such as criminal cases or civil cases. Some Canadian courts are more specialized or only hear issues of a certain type. For example, if you are suing because someone has breached a contract for $10,000, the various provincial courts would have subject-matter jurisdiction. However, if you have a maritime law issue, the Federal Courts would have jurisdiction.
Personal jurisdiction refers to the authority of a court over a particular individual or entity. A court can only exercise personal jurisdiction over a person or entity if they have sufficient contacts with the jurisdiction. It makes sense that an Ontario resident who is injured in Ontario by another Ontario resident should not be bringing a claim in a British Columbia court. If all of the material facts indicate Ontario then the Ontario courts should have jurisdiction.
If a court lacks either subject-matter jurisdiction or personal jurisdiction, it would decline to hear the case.
Understanding the Burden of Proof
Regardless of the form of legal dispute, there will be a burden of proof which needs to be satisfied. The burden of proof refers to the obligation of a litigant to prove their case to a certain threshold. The concept is important because it helps to ensure that judicial decisions are based on sufficient evidence rather than unsubstantiated claims or subjective desires. It is fundamentally important for litigants to determine which side has the burden of proof and what degree of evidence is required to satisfy it.
In criminal cases, the burden of proof is on the prosecution and the standard is one of “beyond a reasonable doubt”. The burden of proof requires prosecutors to present evidence that proves the accused is guilty beyond a reasonable doubt. This is a high standard of proof and is often referred to as it being a near certainty (or 99% likely) that the accused committed the crime. The burden of proof is high in criminal cases because the consequences of a guilty verdict are serious; an accused may go to jail or otherwise be burdened with a criminal record.
In civil cases, the burden of proof is lower than in criminal cases. In a civil case, the plaintiff (the party bringing the action) has the burden of proving their case on a balance of probabilities.
“In a civil claim such as this the applicant bears the burden of proof, on a balance of probabilities. That means he must provide evidence that persuades me that his version of events is more likely than not. Otherwise, I must dismiss his claim.”
Maxwell v. Clisby et al., 2018 BCCRT 10 at para. 11
The balance of probabilities means that the plaintiff must present evidence that makes it more likely than not that their claims are true; this is sometimes referred to as providing evidence which proves your case above 50%. If the plaintiff or applicant fails to meet that threshold then the case will be dismissed.
Accordingly, a party bringing a dispute should ensure that they have enough evidence to pass this legal threshold.
Foundational Law — The Burden of Proof
Maxwell v. Clisby et al., 2018 BCCRT 10 is a Civil Resolution Tribunal decision dealing with a dispute between two neighbours.
Maxwell (the applicant) claimed that he had discussions with Clisby (the respondent) about replacing an old fence, and in those discussions, they agreed to split the cost of removing the old fence and installing a new one. Clisby denied agreeing to share the cost and stated that the discussions were only about the height and style of the fence.
The central issue was whether Clisby agreed to pay part of the cost of the fence. The burden of proof fell on Maxwell to establish, on a balance of probabilities, that an agreement existed between the parties. Maxwell presented evidence including pictures of the old and new fencing, a topography survey, and photographs. He also testified about his version of events.
The Tribunal member held that Maxwell had failed to provide any evidence beyond his own submissions that Clisby agreed to share the costs of the new fence. With conflicting statements from both parties and no additional evidence supporting either side’s version of events, Maxwell could not prove that Clisby agreed to pay. The tribunal member concluded that Maxwell’s belief in the existence of an agreement was not sufficient evidence. As a result, Maxwell’s claim was unsuccessful.
This relatively minor case demonstrates that when bringing a legal action, you need to be aware of the legal burden. The evidence always needs to pass the balance of probabilities or, as in the Maxwell case, the claim will be dismissed.
Initiating the Litigation Process
I. File the Pleadings
Once the proper court is identified, the parties then draft and file the pleadings are the written statements of the parties that outline the material facts and the legal issues in the case. The pleadings go by many names throughout the Canadian courts however, what unifies them is that they are each filed with the court and served (given) on the opposing parties.
There are a few main types of pleadings which are described below:
- Statement of Claim/Notice of Claim – The statement of claim or notice of claim is a document filed by the party bringing the action (the plaintiff or applicant) outlining the facts of the case and the relief they are seeking from the court.
- Statement of Defence/Response to Claim – The statement of defense or response to claim is a document filed by the party being sued (defendant or respondent) in response to the claim. It sets out the defendants’/their position on the issues raised in the lawsuit and the relief it is seeking — often a dismissal of the lawsuit.
- Counterclaim – The counterclaim is the legal pleading that is used by the defendant/respondent to make a claim back against the plaintiff/applicant. Counterclaims allow the defendant/respondent to pursue relief against the plaintiff in the existing litigation.
- Cross-Claim – If a plaintiff/applicant has also sued another party (there are multiple defendants/respondents), a cross-claim may be issued. A cross-claim is a pleading filed by one defendant/respondent against another defendant/respondent in the same litigation. Cross-claims can be valuable as they allow a defendant/respondent to assert a claim for liability against another defendant/respondent in the same over-arching litigation.
- Third Party Claim – A third party claim is a legal pleading in which a defendant/respondent in a lawsuit (the “third party”) is brought into the case by the original defendant (the “primary defendant”). Under a third-party claim, the primary defendant claims that the third party is also responsible for the plaintiff’s injuries or damages and therefore, should have to share in or contribute to any potential liability.
Example – Multiple Pleadings
Let’s use an example to highlight how a single dispute could lead to the filing of multiple different types of pleadings. Imagine a homeowner has recently inherited some money and decided to build a brand new home on their existing lot. After hiring a construction company for the build, numerous issues emerged that led to litigation. Here are a few types of pleadings which could theoretically be involved in the dispute:
- Statement of Claim/Notice of Civil Claim – The homeowner’s statement of claim may allege that the construction company failed to complete the construction of their new home in a timely and satisfactory manner, and as a result, caused the homeowner financial losses and inconvenience.
- Statement of Defence/Response to Civil Claim – The construction company may file a statement of defence/response denying the allegations made by the homeowner and asserting that they fulfilled their contractual obligations and that any delays or issues were caused by the homeowner.
- Counterclaim – The construction company may file a counterclaim against the homeowner, alleging that the homeowner failed to make timely payments or interfered with the construction process, and as a result, caused the construction company financial losses.
- Cross-Claim – If a subcontractor (like an electrician or plumber) is already a party in the litigation after being sued by the homeowner, the construction company may bring a cross-claim against the subcontractor.
- Third-Party Claim – The construction company may also bring a third-party claim against a subcontractor (who is not already in the litigation), alleging that the subcontractor’s faulty work caused delays and defects in the construction of the homeowner’s new home.
II. Discovery
Following the close of the pleadings process, the next step is for the parties to undertake “discovery”. The discovery process unfolds in two ways: “document discovery” and “examinations for discovery”.
Document discovery refers to the process of gathering and exchanging relevant documents that may be used in the litigation. Common examples of documents that are relevant in litigation are emails, text messages, financial records, company reports, police reports, or other witness statements. The parties to the litigation are expected to act with good faith in disclosing all material documents though there are a series of procedural steps a party can undertake if they believe that documents have been omitted or withheld by the other side.
Examinations for discovery are a process in which each litigant has the opportunity to question the other parties and any material witnesses to obtain statements. The individuals subject to examination must answer questions under oath and the statements gathered can be used as evidence in the trial. Examinations are often a formal process and typically conducted by the lawyers on each side.
III. The Trial
After the discovery stage closes, the next step in the litigation process would be the conduct of the trial. The trial will be heard in front of the trier-of-fact. In most civil cases in Canada, the trier-of-fact is a single judge (often called judge-alone trials) though in some cases the trial may be heard by a judge and jury.
The trial begin with the plaintiff presenting their case. This process includes the opening statement, the calling of witnesses, and introducing all the plaintiff’s evidence. At the close of the plaintiff’s case, the defendant then presents their case including their opening statement, their calling of witnesses, and evidence. During their respective presentations, the plaintiff and defendant have an opportunity to cross-examine each others witnesses. Once the presentation of both sides is complete, the trial moves to closing arguments in which they summarize their evidence and the legal issues in the case, and ask the jury or judge to find in their favour.
IV. The Decision and Costs
The judge or jury will then deliberate and reach a verdict — the formal decision in the case. If the defendant is found liable, the court will then determine the appropriate remedy, such as an award of damages. If the defendant is found not liable then the plaintiff’s action is dismissed.
The party that loses at trial (or loses an application to the court) is typically responsible for paying the legal costs of the winning party. This is known as a “costs award.” The purpose of the award is to reimburse the winning party for expenses incurred during the litigation, including court fees, lawyer fees, and other expenses (photocopying, witness fees, etc.). However, it is uncommon for a costs award to cover the full amount of a plaintiff’s or defendant’s legal expenses. Typically, the winner will only get around 40% of their actual legal expenses covered by a costs award.
V. Will there be an Appeal?
If litigation proceeds to trial, it is possible that one or maybe both parties will be dissatisfied with the decision. A litigant can seek to appeal certain decisions made by a court, tribunal, or administrative agency to a higher court or tribunal. In essence, the party bringing the appeal, known as the appellant, is requesting a higher court to review the decision of a lower court.
To be successful in an appeal, the appellant must demonstrate that the lower court made an error in either interpreting the facts of the case or applying the law, and that this error resulted in an incorrect decision. Simply making a mistake is not sufficient; the mistake must be significant enough to have affected the outcome of the case.
One of the important procedural steps is to determine the deadline for filing an appeal of the initial decision. In many cases, a litigant will typically have 30 days from the date of the decision to file an appeal. However, this deadline can be shorter or longer depending on the specific court or tribunal level.
Assuming the appeal is brought within the relevant filing deadline, the appeal process will then unfold and the appellate court will render its decision. A court of appeal can make several types of decisions in civil cases, including upholding the decision of the lower court, reversing the decision of the lower court, or ordering a new trial.
Alternative Dispute Resolution
Litigation should not be taken lightly. It can be a time-consuming and costly process as well as emotionally taxing for the parties involved. Litigation also adds a layer of unpredictability into the dispute as the parties turn the decision-making over to a judge or jury. An often under-appreciated downside to litigation is that it is also a matter of “public record”, meaning easy public access to the pleadings and material evidence in the case. Because of these downsides, the parties often consider alternative ways to resolve their disputes.
Alternative dispute resolution (ADR) refers to methods of resolving disputes outside of litigation, such as through arbitration, mediation, or negotiation. These methods can be less costly and time-consuming than going to court though they differ in substantial ways.
Negotiation is a process in which the disputing parties communicate directly with each other in an effort to reach a mutually satisfactory resolution. This is typically done without the assistance of a third party.
Mediation is a process in which a neutral third party (the mediator) helps facilitate communication between the disputing parties with the goal of reaching a mutually satisfactory resolution. The mediator does not have the authority to make a binding decision, but can help the parties come to an agreement on their own.
In arbitration, the parties select a neutral third party (the arbitrator) who acts as a private judge in the dispute. The arbitrator reviews the evidence, listens to the arguments presented by both parties, and renders a binding decision, known as an arbitral award. The arbitral award is enforceable by law, and it is typically final and not subject to appeal (except in limited circumstances). Arbitration offers several advantages over traditional litigation. It is often faster, more flexible, and less formal than going to court. The parties have more control over the process and can choose an arbitrator based on their expertise in the subject matter. Arbitration also provides greater privacy, as the proceedings and the award are not typically made public.
Example – Using Alternative Dispute Resolution
In the previous example above, we discussed a dispute between a homeowner, a construction company and some sub-trades. How could the parties use alternative dispute resolution to avoid the time, cost, and public nature of litigation? Here are a few potential avenues:
- Negotiation – The homeowner and the construction company could engage in negotiations to address the underlying dispute. They can discuss the construction delays, sub-par workmanship, or cost overruns, and work together to find a solution. The hope is that the parties can find consensus without resort to litigation or, if its already started, continuing the litigation.
- Mediation – The parties can use a mediator to facilitate discussions between them. The mediator can assist in exploring possible compromises, suggesting alternative solutions, and helping the parties consider the long-term implications of the litigation. The mediator’s suggestions would not be binding and there is no guarantee of a resolution emerging from mediation.
- Arbitration – The homeowner and the construction company could opt for binding arbitration. An arbitrator would be selected, likely one with expertise in construction disputes, who would review the evidence, listen to the arguments from both parties, and then render a decision that is binding on both sides. The decision reached in arbitration can be enforced in the court (if necessary).
Deadlines on a Claim
All individuals should understand limitation periods — it is some of the most important law to know. Generally, a limitation period is a time limit within which legal proceedings must be brought on a particular cause of action. One of the keys purposes of limitation periods is to ensure that legal claims are dealt with promptly and that evidence is still fresh and available to support the claims.
“Limitation periods play an important role in the administration of justice by achieving a balance between every individual’s right to justice on one hand and the systemic need for finality on the other. In their operation, limitation periods encourage the timely resolution of legal controversies and reconcile the competing interests of potential claimants, potential defendants and society at large.”
Haldenby v. Dominion of Canada General Insurance Co., 55 O.R (3d) 470
Limitation periods for private claims are codified by statute and established provincially. In most cases, the limitation period for private claims is two years from the date that the litigant discovered or should have reasonably discovered they had a claim. A legal claim must be commenced within the two-year limitation period or it will be statute-barred — the litigant will no longer be able to pursue their claim.
The limitation period in British Columbia is found in section 6(1) of the Limitation Act, S.B.C., 2012, c. 13:
Subject to this Act, a court proceeding in respect of a claim must not be commenced more than 2 years after the day on which the claim is discovered.
The clock starts to run from the date of “discoverability” which, in some cases, may be open to argument. Discoverability is said to occur when a person has knowledge of the material facts that would lead a reasonable person, exercising due diligence, to investigate a potential claim. In other words, it is the point at which a person knows or should have known that they have suffered a legal injury and that the injury has a reasonable connection to the actions or omissions of the other party.
For example, imagine a store carelessly fails to clean-up a puddle of laundry detergent which has been spilled on the floor. While shopping, a customer slips in the spill and fractures her ankle. The customer would have two years from when she reasonably should have “discovered” the claim; in this example, the date of the slip and fall. If the customer fails to bring her claim within the two year window, her claim will be statute-barred.
Summary of Litigation Steps in British Columbia
The following is a very useful summary of the litigation steps in British Columbia. It was prepared by a Vancouver law firm called Boughton Law.
