The structure and organisation of Canadian courts

The Constitution Act, 1867 entrenches a system of provincial superior courts.^[1] The federal Parliament has also established a Federal Court and a Federal Court of Appeal.

Each province, whether as a part of its provincial superior court or otherwise, has a Court of Appeal. Some provinces, such as Ontario, have created an intermediate appellate court (the Divisional Court) that hears appeals from interlocutory rather than final orders, and from judgments under a specified monetary amount.

Under section 3 of the Supreme Court Act, the Supreme Court of Canada is established as the general court of appeal for all of Canada.^[2] It hears appeals in all areas of the law from the appellate courts in each province and the Federal Court of Appeal.

Jurisdiction of Canadian courts 

The provincial superior courts are courts of record with geographic jurisdiction extending over the provinces in which they sit. Each has the jurisdiction, power, and authority historically exercised by the courts of common law and equity. This jurisdiction is inherent and presumed unless specifically removed by statute as, for example, by section 20(1) of the Federal Courts Act, which provides that the Federal Court may try any matter in which a remedy is sought under “an Act of Parliament or at law or in equity” respecting any patent, copyright, trademark, industrial design, or topography.

Because they are courts of plenary and inherent jurisdiction, the provincial superior courts try virtually all commercial matters. 

The procedural rules

The first instance and appellate courts in Canada each have their own procedural rules of court. While substantially similar in substance, the procedural rules differ in form. For example, the procedural rules differ in their names.^[3]

^{[1] Constitution Act, 1867, s. 96.}

^{[2] Supreme Court Act, R.S.C. 1985, c. S-26.}

^{[3] See, for example: British Columbia, Supreme Court Civil Rules, B.C. Reg. 168/2009 [BC Supreme Court Civil Rules]; Alberta, Alberta Rules of Court, Alta. Reg. 124/2010 [Alberta Rules of Court]; Ontario, Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [Ontario Rules of Civil Procedure]; and Federal Court of Canada, Federal Courts Rules, SOR/98-106 [Federal Courts Rules].}

Unlike some jurisdictions, there are no pre-action considerations that are mandated by the procedural rules of court in jurisdictions across Canada.

In an effort to reduce the cost and delay associated with traditional litigation, parties often turn to mediation or arbitration as an alternative to resolving their commercial disputes.

Mediation

Mediation is a private negotiation between parties to a dispute that is facilitated by a neutral third party, referred to as a mediator. The mediator may be a lawyer or former judge, or another experienced businessperson or professional that is suited to facilitate resolution between the parties. Unlike a court or arbitrator, the mediator has no power to end the dispute by imposing a resolution.

Arbitration

Arbitration resembles private litigation in the sense that a binding resolution of the dispute is made by the arbitrator. Arbitration must be agreed to by the parties, either by contractual arrangement in advance or once a dispute arises. Arbitrations may be conducted under already established procedural rules which may be modified by the parties (and the arbitrator), or may be bespoke to the dispute.

It will generally take at least twenty-four months for a straightforward commercial case to reach trial. However, in some Canadian jurisdictions, and in some limited circumstances using abbreviated procedures, commercial cases can reach trial within eight months of the litigation being commenced.^[4]

^{[4] For example, in British Columbia, Rule 15-1 of the BC Supreme Court Civil Rules, supra note 3, is available for: (i) claims for money, real property, personal property, or a builders’ lien, where the total value of the claim is CAD 100,000 or less (not including interest and costs); or (ii) litigation where the parties agree that the trial of the action can be completed in three days. Where a claim is subject to Rule 15-1, there are limitations on the conduct of the litigation. For example, examinations for discovery are limited to two hours, and the amount of recoverable costs is fixed depending on the length of the trial.}

Except in the Province of Quebec, which is governed by a civil law system, the litigation process in most of Canada is based on compulsory disclosure of relevant evidence through documentary and oral discovery.

Documentary discovery

Generally, and although the procedures vary across the provinces, each party to the litigation is required to disclose all relevant documents that:

• are in the possession, power, or control of the party and for which no privilege is claimed; and
• were, but are no longer, in the possession, control, or power of the party and for which no privilege is claimed.^[5]

Each party to the litigation is also required to list, but not disclose, all relevant documents that are, or were, in the possession, power, or control of the party and for which privilege is claimed

A document is relevant if that document may directly or indirectly advance a party’s case or damage that of an adversary.

Apart from the default documentary discovery obligations, the court may order the production of any document that is in the possession of a person who is not a party to the action, if the document is relevant and if it would be unfair to require the party seeking the document to proceed to trial without it.^[6]

Oral discovery

An examination for discovery is a proceeding conducted outside of court, but under oath, in the context of which a party is entitled to ask each opposing party questions relevant to the litigation.^[7] The purpose of the discovery is to obtain admissions, evidence, and documents.

While there are differences across the provinces, each party is generally entitled to examine a single representative of each opposing party, orally or in writing, once. The representative of that party must inform himself or herself and answer all questions. Examinations are, in virtually every case, conducted orally. Oral discovery in Canada may be replaced by a written examination if the examining party so elects. This is relatively rare.

^{[5] See, for example: BC Supreme Court Civil Rules, supra note 3, Rule 7-1(1); Alberta Rules of Court, supra note 3, Rules 5.2(1) and 5.6; Ontario Rules of Civil Procedure, supra note 3, Rules 30.02(1) and 30.03(2); and Federal Courts Rules, supra note 3, Rule 223(2).}

^{[6] See, for example: BC Supreme Court Civil Rules, supra note 3, Rule 7-1(13); Alberta Rules of Court, supra note 3, Rule 5.11; Ontario Rules of Civil Procedure, supra note 3, Rule 30.04(5); and Federal Courts Rules, supra note 3, Rule 225.}

^{[7] See, for example: BC Supreme Court Civil Rules, supra note 3, Rule 7-2; Alberta Rules of Court, supra note 3, Rule 5.17; Ontario Rules of Civil Procedure, supra note 3, Rule 31; and Federal Courts Rules, supra note 3, Rule 89.}

Witnesses can be compelled to attend trial by serving them with a subpoena or summons to witness, depending on the jurisdiction in which the trial is being held. A witness subpoena or summons must be served before the date when the witness is required to attend court, unless a judge orders otherwise. If the witness does not attend on the date required, that witness is guilty of contempt of court and subject to the court’s power to punish contempt of court, which includes issuing a fine or potential imprisonment.^[8]

^{[8] See, for example: BC Supreme Court Civil Rules, supra note 3, Rules 12-5(22) and (31); Alberta Rules of Court, supra note 3, Rule 8.8; Ontario Rules of Civil Procedure, supra note 3, Rule 53.04; and Federal Courts Rules, supra note 3, Rule 41.}

Canadian courts generally follow the English practice of awarding costs at the conclusion of each proceeding, whether that be an application, trial, or appeal. The basic costs principle is that the successful party is entitled to compensation from the unsuccessful party for its costs in a proceeding. 

Discretion to award costs

Costs are awarded at the discretion of the judge hearing the matter in which they are claimed, and they are claimed in virtually every form of proceeding. In awarding costs, the court may fix all or part of the costs with or without reference to published tariffs, or may direct that the costs be assessed, with or without reference to published tariffs.^[9] In determining the amount of costs, and by whom they are paid, the court may consider a number of factors, including:

• the result of the proceeding;
• the amounts claimed and the amounts recovered; 
• the complexity of the proceeding;
• the conduct of any party that tended to shorten or unnecessarily lengthen the duration of the proceeding; and
• any offers to settle made in the proceeding.^[10]

Security for costs

Because costs are at issue in every Canadian proceeding, a party commencing a proceeding may be obliged to post security for costs, which is a payment made by the plaintiff into court to cover potential future cost awards in favour of a successful defendant. Security for costs orders are sought by applications or motions. As with cost awards, making an order for security for costs is discretionary and must be just in all of the circumstances.^[11]

Some examples of where a court may order security for costs include if it appears that the plaintiff:

• is ordinarily resident outside of Canada;
• is a corporation without sufficient assets in the jurisdiction to pay costs awarded against it; or
• has another proceeding for the same relief pending elsewhere.^[12]

^{[9] See, for example: BC Supreme Court Civil Rules, supra note 3, Rule 14-1; Alberta Rules of Court, supra note 3, Rule 10.31(3)(a); Ontario Rules of Civil Procedure, supra note 3, Rule 57.01(3); and Federal Courts Rules, supra note 3, Rules 400(4) and (5).}

^{[10] See, for example: Alberta Rules of Court, supra note 3, Rules 10.33(1) and (2); Ontario Rules of Civil Procedure, supra note 3, Rule 57.01(1); and Federal Courts Rules, supra note 3, Rule 400(3). This is not a complete statement of the factors the court may consider when awarding costs.}

^{[11] Yaiguaje v. Chevron Corporation, 2017 ONCA 827 at para. 23.}

^{[12] Alberta Rules of Court, supra note 3, Rule 4.22; Ontario Rules of Civil Procedure, supra note 3, Rule 56.01; There is no express rule regarding security for costs in British Columbia, but courts have inherent jurisdiction to order security for costs. This is not a complete statement of all the circumstances in which security will be ordered.}

The most common interim remedies are interlocutory injunctions or summary judgment. Interim remedies and other forms of interlocutory relief are sought by applications or motions, depending on the jurisdiction in which the relief is sought. 

Interlocutory injunctions

An interlocutory injunction is an order of the court that requires or prohibits particular conduct, pending trial. For example, the court may grant an interlocutory injunction requiring that: (i) a party continue to perform under the terms of a disputed contract; or (ii) a party refrain from engaging in certain conduct. Such relief is interlocutory because the matter that is subject to the relief will be reconsidered at the trial of the action.

Although notice to the opposing party is usually required when seeking an injunction, an interim injunction (being a time-limited temporary injunction, pending a subsequent interlocutory injunction) may be granted without notice to opposing parties where urgency makes such notice impossible, or where providing notice would undermine the purpose of the injunction.

The test for determining whether to grant an interlocutory injunction (in both the Federal Court and the provincial courts) was established by the Supreme Court of Canada in RJR MacDonald Inc. v. Canada (A.G.). That test requires a moving party to establish three elements:

• there must be a serious issue to be tried;
• irreparable harm must arise should the injunction not be granted; and
• on balance, convenience favours granting the injunction.^[13]

Summary judgment

A party may obtain summary judgment, respecting some or all matters at issue in an action, if it can demonstrate that there is no genuine issue with respect to that matter requiring a trial. Summary judgment is final and, accordingly, no issue determined by way of summary judgment may be raised at trial.

The Supreme Court of Canada established the applicable test for summary judgment in Hryniak v. Mauldin. The Court held that the test on an application or motion for summary judgment is whether there is a genuine issue requiring trial, and clarified that there is no genuine issue requiring a trial – such that summary judgment is appropriate – when a chambers judge is able to reach a fair and just determination on the merits on the evidence before them. A chambers judge will be able to do so when they are able to make the necessary findings of fact required in the circumstances, are able to apply the law to those facts, and when doing so is a more proportionate, expeditious and less expensive means to achieve a just result.^[14]

^{[13] RJR MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311 [RJR MacDonald]. The test set out in RJR MacDonald originates from American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.).}

^{[14] Hryniak v. Mauldin, 2014 SCC 7.}

Legislative framework

Canada and its provinces were the first jurisdictions in the world to enact legislation expressly implementing the UNCITRAL Model Law on International Commercial Arbitration (Model Law). In 2014, Uniform Law Conference of Canada adopted a proposed new uniform International Commercial Arbitration Act for implementation throughout Canada.

Among other things, the new model statute adopts all of the 2006 Model Law amendments (except option II for Article 7), including those that broaden the jurisdiction of courts and arbitral tribunals to order interim relief. The new statute also establishes a 10-year limitation period to commence proceedings seeking recognition and enforcement in Canada of foreign international commercial arbitral awards. The model statute will become law as it is enacted by the various Canadian federal, provincial and territorial legislatures.

An arbitration-friendly jurisdiction

International commercial arbitration in Canada operates under a well-developed legal framework designed to promote the use of arbitration and minimise judicial intervention. The Model Law and the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) provide narrow grounds for judicial intervention in international commercial disputes that are subject to arbitration agreements. Canadian courts have consistently expressed their approval of these principles and frequently defer to arbitral tribunals for determinations regarding the tribunal’s own jurisdiction and complex issues of fact and law.

Courts across Canada have echoed these sentiments, consistently applying the competence–competence principle, showing broad deference to the decisions of arbitral tribunals and narrowly interpreting the grounds for setting aside arbitral awards. In addition, some provinces have explicitly accepted that international arbitral awards are akin to foreign judgments, providing parties with jurisdictional advantages and longer limitation periods for enforcing their award.

The integrity of the international commercial arbitration process has further been endorsed in recognition and enforcement proceedings. When faced with challenges to the recognition of foreign awards, Canadian courts have consistently emphasised the mandatory nature of the enforcement provisions in the Model Law. Similarly, Article V of the New York Convention, which sets out the limited grounds on which enforcement may be refused, is narrowly interpreted, and arbitral debtors have the burden of proving any allegation of injustice or impropriety that could render an award unenforceable.

Arbitrators have discretion to award interim relief at the request of the parties under provincial arbitration legislation.^[15] The same discretion is afforded to arbitrators under the procedural rules of most arbitral institutions.

Although the procedural rules of some arbitral institutions enumerate specific examples of interim relief that may be granted, most of those rules provide an arbitral tribunal with discretion to grant “any interim measure that it deems appropriate”. Some examples of interim relief that arbitrators may grant include:

• security for all or part of the amount in dispute;
• the preservation, storage, sale or other disposal of property under the control of any party and relating to the subject matter of the arbitration; and
• orders for the payment of money or the disposition of property as between any parties.^[16]

In some provinces, the court has the same discretion to award interim relief in relation to arbitral proceedings as the court has in relation to court proceedings.^[17] Accordingly, if the provincial arbitration legislation or procedural rules governing the arbitration do not provide for interim relief, it may be necessary to apply to the court for that relief.

^{[15] See, for example: Arbitration Act, S.B.C. 2020, c. 2, s. 36 [B.C. Arbitration Act]; Arbitration Act, R.S.A. 2000, c. A-43, s. 41(1) [Alberta Arbitration Act]; and Arbitration Act, 1991, S.O. 1991, c. 17, s. 41 [Ontario Arbitration Act].}

^{[16] See, for example: Vancouver International Arbitration Centre International Commercial Arbitration Rules, Rule 26(a).}

^{[17] See, for example: B.C. Arbitration Act, supra note 15, s. 45(1).}

Arbitration legislation differs among the provinces on the availability of an appeal of a domestic arbitral award. However, a commonality between provinces is that appeals are generally available on questions of law that arise out of the domestic arbitral award.^[18] In some provinces, appeals are made to the provincial Court of Appeal while, in other provinces, the appeals are brought to the provincial superior court.

^{[18] See, for example: B.C. Arbitration Act, supra note 15, s. 59(2); Alberta Arbitration Act, supra note 15, s. 44(1); and Ontario Arbitration Act, supra note 15, s. 45(1).}

Canada and the United Kingdom are parties to the Convention between Canada and the United Kingdom of Great Britain and Northern Ireland Providing for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters (Canada-UK Convention). This Convention sets out the procedure for enforcing Canadian monetary judgments in the United Kingdom, and vice versa. The Canada-UK Convention has been incorporated into Canadian law by federal and provincial legislation.^[19]

Canada is also party to the International Convention on Civil Liability for Oil Pollution Damage, 1992 (Oil Pollution Convention). The Marine Liability Act implements the Oil Pollution Convention, and provides a mechanism for a foreign judgment of a country that is a party to the Oil Pollution Convention related to civil liability for oil pollution damages to be registered by a judgment creditor in the Federal Court of Canada.^[20]

Various provinces allow expedited enforcement of judgment from other reciprocating jurisdictions.

^{[19] Canada-United Kingdom Civil and Commercial Judgments Conventions Act, R.S.C. 1985, c. C-30. All the common law provinces have such a statute. See, for example: Court Order Enforcement Act, R.S.B.C. 1996, c. 78; International Conventions Implementation Act, R.S.A. 2000, c. I-6; and Reciprocal Enforcement of Judgments (U.K.) Act, R.S.O. 1990, c. R.6.}

^{[20] Marine Liability Act, S.C. 2001, c. 6.}

Generally, domestic monetary and non-monetary judgments are enforceable. Foreign monetary judgments are enforceable if they are for a fixed sum of money and not a penalty or tax.^[21] Foreign non-monetary judgments (including equitable judgments, such as injunctions) may be enforceable in certain circumstances if they are clear and specific, and final in nature.^[22]

Even if a foreign judgment meets the basic requirements for recognition and enforcement, it may nevertheless be “impeached” under Canadian common law on the basis of one of three defences. A judgment debtor bears the onus of proof for these defences, which may result in a foreign judgment being denied recognition and enforcement:

• the foreign judgment was obtained by fraud;
• the foreign judgment debtor was denied natural justice; or
• the foreign judgment is contrary to Canadian public policy.^[23]

Furthermore, the general rule is that Canadian courts will refuse to recognize and enforce foreign judgments which enforce the penal, revenue, or other public laws of a foreign jurisdiction.^[24]

^{[21] Stephen Pitel & Nicholas Rafferty, Conflict of Laws, 2ed, (Irwin Law: Toronto, 2016) at 179.}

^{[22] Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52 [Pro Swing].}

^{[23] Janet Walker, Canadian Conflict of Laws, (Butterworths: Markham) at 14-43 to 14-44; see also, Beals v. Saldanha, 2003 SCC 72.}

^{[24] United States of America v. Ivey et al. (1995), 26 OR (3d) 533 (Ont. Gen. Div.) at 548; affirmed (1996), 30 OR (3d) 370 (Ont. C.A.); application for leave to the Supreme Court of Canada dismissed [1996] S.C.C.A. No. 582.}

The enforceability of a foreign judgment in Canada depends on the jurisdiction in which it was issued, the nature of the judgment, and the province in which recognition and enforcement is sought. The formal requirements for enforcing a foreign judgment under the common law are well-established.

Enforcement of judgments at common law

When the jurisdiction under which a foreign creditor has obtained judgment is outside Canada and is not named a reciprocating jurisdiction under the Reciprocal Judgments Enforcement Act in effect in the province in which the creditor seeks enforcement, then the judgment creditor’s remedy is under the common law, and more specifically, under the common law principle that provides that a foreign monetary judgment creates, between the parties, a debt that may be the subject of an action in Canada.^[25]

Enforcement of foreign monetary judgments at common law

Under the longstanding test established by the Supreme Court of Canada in Morguard Investments Ltd. v. De Savoye, to be presumptively enforceable in Canada, a foreign judgment must:

• relate to a money judgment (i.e. for a debt or a definite sum of money);
• be final; and
• have been issued by a court with jurisdiction over the matter.^[26]

However, this test has been qualified and adjusted over the past 30 years, making the individual characteristics of the foreign judgment important. Assuming the criteria for enforcement of a foreign judgment are met, and subject to the defences discussed above, Canadian courts will assist the judgment creditor by allowing it to use the court’s enforcement mechanisms.

Enforcement of foreign non-monetary judgments at common law

Under the traditional common law rule, as noted above, once the jurisdiction of the enforcing court is established, the applicant must show that they meet the conditions for having the judgment recognized and enforced. It is at this stage that considerations specific to the particular nature of equitable orders, such as injunctive relief, should be reviewed. The considerations in this regard, enumerated by the Supreme Court of Canada, are as follows: 

• whether the terms of the order are clear and specific enough to ensure that the defendant will know what is expected from them;
• whether the order is limited in its scope, and whether the originating court retained the power to issue further orders;
• whether the enforcement is the least burdensome remedy for the Canadian justice system;
• whether the Canadian litigant is exposed to unforeseen obligations;
• whether there are any third parties affected by the order; and
• whether the use of judicial resources is consistent with what would be allowed for domestic litigants.^[27]

Judgments from the United Kingdom of Great Britain and Northern Ireland

A monetary judgment of a court of England, Wales, Scotland, or Northern Ireland may be the subject of an application for registration pursuant to the Canada-United Kingdom Civil and Commercial Judgments Conventions Act^[28] or the applicable reciprocal enforcement of judgments act of each province.^[29] These acts incorporate, among other instruments, the Canada-UK Convention as part of the domestic law of Canada and the common law provinces and territories.

Foreign judgments from outside the United Kingdom

The Canadian common law provinces have enacted legislation that permits applications to be made for the registration and enforcement of foreign judgments. This provincial legislation is based on the Uniform Law Conference of Canada Model Act (Model Act), as it has been revised by the Uniform Law Conference of Canada over the years.^[30] The Model Act provides for the registration of a foreign money judgment, inclusive of costs.

^{[25] The Uniform Law Conference of Canada adopted a Uniform Enforcement of Foreign Judgments Act in 1988. This Act is meant to apply to the enforcement of foreign judgments rendered in countries with which Canada has not ratified a treaty or convention on the recognition and enforcement of judgments.}

^{[26] Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077.}

^{[27] Pro Swing, supra note 22 at para. 30.} 

^{[28] Canada-United Kingdom Civil and Commercial Judgments Conventions Act, R.S.C. 1985, c. C-30.}

^{[29] All the common law provinces have such an act. See, for example: Reciprocal Enforcement of Judgments (U.K.) Act, R.S.O. 1990, c. R.6; International Conventions Implementation Act, R.S.A. 2000, c. I-6; and Court Order Enforcement Act, R.S.B.C. 1996, c. 78.}

^{[30] Uniform Law Conference of Canada Model Act, Uniform Law Conference of Canada.}

Once registered, the judgment or award is, for all purposes, treated as a judgment of the province in which it was registered and can be enforced using the same methods. For example, enforcement can be effected through:

• seizure and sale of real or personal property;
• garnishment of the debt; and
• the appointment of a receiver.

If the judgment creditor needs more information about the debtor’s ability to satisfy the debt, such as the debtor’s assets, some provincial procedural rules of court provide the creditor with the ability to examine the debtor under oath to obtain that information.^[31]

^{[31] See, for example: BC Supreme Court Civil Rules, supra note 3, Rule 13-1; Ontario Rules of Civil Procedure, supra note 3, Rule 60.18(2).}

The interim measures available are dependent on the jurisdiction in which the relief is sought. There are numerous different interim measures available pending enforcement of both domestic and foreign judgments. Generally, the most common interim measures include:

• interim orders for custody or preservation of property;
• interim injunctions;
• orders for security for costs; and
• pre-judgment garnishment.