Civil litigation

Canada and the U.S. have different standards for what is discoverablein an action. In Canada, a documentmust be disclosed if it is relevant to a matter at issue in the pleadings. In the U.S., a document is discoverable so long as it is reasonably calculated to lead to thediscovery of admissible evidence.As the U.S. standard is much morebroad, the volume of information exchanged between parties is often significantly higher in the U.S. than it would be in Canada.

Canadian court system

Canada has an elected parliamentary system of government, divided among a federal government, 10 provincial governments1and three territorial governments2. Legislative authority and the ability to make laws are divided between various levels of government, including the Parliament of Canada, the legislatures of Canada’s provinces and territories, and various local governments or municipalities. Court systems have similarly been established at both the federal and provincial (or territorial) levels.Reflecting its diverse background, the Canadian legal system contains both the common and civil law traditions. The Province of Québec has a civil code descended from the French civil law system, while the other provinces and territories follow the English common law tradition. The Supreme Court of Canada and the federal courts adjudicate matters in both civil and common law.Canada has two court systems where a civil claim may be brought: the Federal Court, and the 13 provincial or territorial courts.

The federal court system in Canada consists of courts that are appointed and administered by the federal government. The federal courts have limited jurisdiction, and hear claims in federally regulated areas such as maritime law, immigration and refugee matters, and most intellectual property cases. The federal courts may also review decisions made by federally regulated tribunals. The specialized Tax Court of Canada also falls under federal jurisdiction, with matters appealed to the Federal Court of Appeal.Similar to the judicial system in the U.S., there is a separate judicial system in each Canadian province.

Within each province there is a provincial court which handles civil matters below a certain monetary threshold (i.e. Small Claims Court), a provincial superior court (also called a Supreme Court or Court of Queen’s Bench in certain jurisdictions) with broad inherent jurisdiction, and an appellate court. Depending on the province, there may also be other provincial courts with specialized jurisdiction (e.g., family, commercial list, and estates).

There are also a number of specialized boards and tribunals in Canada such as securities commissions, labour relations boards, and human rights tribunals that can be reviewed by provincial courts. Most commercial cases and criminal trials in Canada are conducted before provincial superior courts.

The provincial superior courts have three qualities that distinguish them from U.S. state courts. First, the provincial superior courts are a hybrid federal creation, since judges are appointed by the federal government but the courts are administered by the provincial government. Second, the provincial superior courts have general jurisdiction over matters of both provincial and federal law. Third, provincial superior courts are subject to appeals to the Canadian court of final resort, the Supreme Court of Canada. In contrast to the U.S., a provincial appellate court is not the final arbiter of provincial law in Canada; the Supreme Court of Canada has full authority to decide matters of provincial and federal law.

Canada does not have a multi-district litigation procedure to co-ordinate overlapping or multiple actions about the same subject matter. If a particular matter arises in two provinces, the Federal Court does not have jurisdiction; rather, both provinces will have jurisdiction over the matter. This apparent multiplicity of proceedings can be resolved or reconciled through the co-operation of parties and their counsel, or with the assistance of the courts.

  • January 20, 2017