Civil Procedure (Canadian Common Law)

# Civil Procedure (Canadian Common Law) — Grounded Notes


## 1. Court Structure & Jurisdiction

### Subject-Matter & Territorial Jurisdiction

The jurisdiction of Superior Courts in Ontario is codified in the *Courts of Justice Act*, RSO 1990 c C43. Courts of Justice Act assigns disputes involving monetary claims exceeding Small Claims Court limits (currently $35,000 and under) to Superior Court jurisdiction. Federal Court has jurisdiction over federal statutory matters, patent/copyright, and federal Crown disputes.

**Jurisdiction Simpliciter — Real and Substantial Connection Test**

The foundational authority for personal jurisdiction in Canada is ***Club Resorts Ltd v Van Breda*, [2012] SCC 17**. This Supreme Court decision established the "real and substantial connection" test, replacing the older *Mosher v Purdy* formulation. The test requires the defendant to have a real and substantial connection with the jurisdiction, assessed in the context of the defendant's prior activity, previous dealings with the plaintiff, and the subject matter of the dispute.

A plaintiff challenging jurisdiction must plead facts showing the defendant lacks connection; the burden then shifts to the defendant. Mere presence of property or contract performance within the jurisdiction is insufficient; the connection must be meaningful and not coincidental.

**Forum Non Conveniens**

Under *Club Resorts* and confirmed in Canadian jurisprudence, a defendant may seek a stay of proceedings on the ground that another forum is "clearly more appropriate" (*Beals v Saldanha*, [2003] SCC 72). This is distinct from jurisdiction simpliciter. A court seized of jurisdiction may decline to exercise it if:

1. The defendant demonstrates another forum is clearly more appropriate;
2. The balance of convenience favours the alternate forum; and
3. Access to justice concerns do not override efficiency.

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## 2. Commencing Proceedings & Limitations

### Originating Process

Ontario Rules of Civil Procedure, RRO 1990 Reg 194 (current ed.), Rule 14 distinguishes:

- **Statement of Claim** (r.14): Used in ordinary actions. Must contain the essential facts (but not evidence), particulars of claim, and relief sought. Must be served personally (r.16) or by substituted service if authorized (r.16.04).

- **Application** (r.38): Used for matters arising under a statute, or where statutory or common law authority is limited to application procedure. Applications follow different procedural rules (motion-like) rather than full pleading and discovery.

### Limitations — Ontario Limitations Act, 2002

The *Limitations Act, 2002*, SO 2002 c 24 Sch B, establishes:

- **Basic Limitation Period**: 2 years from the date the plaintiff discovers (or ought to discover) the injury, loss, or damage and the causal connection to the defendant's conduct.

- **Ultimate Limitation Period**: 15 years from the date the act or omission on which the claim is based occurred, except in cases of sexual assault or abuse of a child (no ultimate bar).

- **Discoverability**: The Act does not run against a plaintiff who is not aware of the injury. Medical malpractice cases, latent defect actions, and environmental damage claims often turn on when the plaintiff "ought reasonably to have discovered" the loss.

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## 3. Pleadings

### Statement of Claim, Defence, Reply, Counterclaim

A Statement of Claim (r.14) is the pleading initiating an ordinary action. It must:

1. State the essential facts (material facts, not evidence);
2. Identify the relief sought;
3. Be clear, concise, and unambiguous (r.25.01).

The Defence (r.25) admits or denies each allegation, or states insufficient knowledge. A Counterclaim (r.27) asserts a claim by the defendant against the plaintiff. A Reply (r.26) by the plaintiff responds to new matter raised in the Defence.

### Striking Pleadings — Rule 21

Under Rule 21.01, a party may move to strike a pleading (or portion) on the grounds that:

1. It discloses no reasonable cause of action or defence;
2. It is frivolous or vexatious;
3. It is an abuse of process.

The test is whether the pleading is *plain and obvious* that the claim cannot succeed. This is a strict test; the motion should not resolve disputed questions of fact or law.

**Hunt v Carey Canada Inc**, [1990] 2 SCR 959, is the leading Canadian authority on striking pleadings. It held that a motion to strike should only succeed if it is plain and obvious that the pleading discloses no reasonable cause of action. The court should not decide disputed questions of fact or law at the striking motion stage.

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## 4. Motions & Interlocutory Relief

### Summary Judgment — Rule 20

Rule 20.01 permits a moving party to seek summary judgment on the ground that there is no genuine issue requiring a trial. The leading modern authority is ***Hryniak v Mauldin*, [2014] SCC 7**, which reformed Canadian summary judgment practice.

*Hryniak* held that:

1. The court must consider whether there is a genuine issue requiring trial;
2. If not, summary judgment may be granted;
3. The court has expanded discretionary powers to resolve the dispute on the summary judgment record, including by ordering limited oral testimony or cross-examination;
4. Summary judgment is now a proportionate and cost-effective alternative to trial in many cases.

The "cultural shift" endorsed by the Supreme Court means that summary judgment is now the presumptive path in disputes where the material facts are not genuinely disputed, even if the legal conclusions remain contested.

### Interlocutory Injunctions — RJR-MacDonald Test

The leading authority for interlocutory injunctions is ***RJR-MacDonald Inc v Canada*, [1994] 1 SCR 311**. The test requires:

1. **Serious Question to be Tried**: The plaintiff must show a serious legal issue to be determined.
2. **Balance of Convenience**: The inconvenience and risk of loss to the plaintiff if the injunction is not granted must be weighed against the inconvenience and risk to the defendant if it is.
3. **Irreparable Harm**: The plaintiff must demonstrate that damages would not be an adequate remedy.

A plaintiff may also be required to post security for costs as a condition of the injunction.

### Proportionality Principle — Rule 1.04

Ontario Rule 1.04 enshrines the principle of proportionality, requiring parties to narrow issues and conduct proceedings in a proportionate manner having regard to:

- The amount in dispute;
- The importance of the issues;
- The complexity of the issues;
- The likely cost of the proceedings; and
- The need to resolve the proceeding fairly.

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## 5. Discovery

### Documentary Discovery — Affidavit of Documents (Rule 30)

Rule 30 requires each party to make full and frank disclosure of all documents in their possession, custody, or control that are relevant to any issue in the action. This includes:

- Documents supporting the party's position;
- Documents supporting the opposing party's position;
- Neutral documents.

Documents are listed in an Affidavit of Documents, categorized as:
- **Produced**: Available for inspection (non-privileged).
- **Privileged**: Withheld (legal advice or litigation privilege).

Solicitor-client privilege and litigation privilege are the two main bases for withholding documents.

### Examination for Discovery — Rule 31

Rule 31 permits each party to examine the other party (or authorized representatives) orally to:

1. Clarify pleaded allegations;
2. Obtain admissions;
3. Obtain factual information relevant to the issues;
4. Assess credibility.

A party may object on grounds of:
- Solicitor-client privilege;
- Litigation privilege;
- Relevance (if the question is clearly irrelevant);
- Without prejudice settlement discussions.

**Undertakings**: A witness may give an undertaking to obtain information or documents not available at the examination. Failure to fulfill an undertaking may result in adverse cost consequences.

### Deemed Undertaking Rule — Rule 30.1

Rule 30.1 provides that information obtained on discovery (and from affidavits, interrogatories, or examinations) is deemed to be obtained on an undertaking that it will not be used for any purpose other than the conduct of the action, without leave of the court or consent of the other party.

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## 6. Pre-Trial & Case Management

### Offers to Settle — Rule 49

Rule 49 permits a party to make a written offer to settle. If the offer is not accepted and the plaintiff subsequently obtains a judgment no more favourable than the offer, cost consequences follow:

- The defendant (offeror) is entitled to substantial indemnity costs from the date the offer was made, even if the plaintiff ultimately wins on liability.
- The plaintiff (if offeror) obtains substantial indemnity costs if the judgment is no more favourable than the offer.

Offers must:
- Be in writing;
- Identify the terms clearly;
- Remain open for a minimum period (typically 7 days);
- State that it expires if not accepted.

The cost consequences incentivize realistic settlement postures and penalize unreasonable refusals.

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## 7. Costs

### Costs Discretion — Rule 57

Rule 57 grants the court broad discretion in awarding costs. The court may award:

- **Partial Indemnity Costs**: A fixed percentage (typically 60%) of the successful party's actual legal fees and disbursements.
- **Substantial Indemnity Costs**: A higher percentage (typically 75%) or full recovery, awarded in cases of misconduct, bad faith, or rule breach.
- **Solicitor-Client Costs**: Full recovery of all reasonable fees and costs, reserved for egregious conduct.

Factors the court considers include:

1. The result (success/failure);
2. Complexity and length of the action;
3. Conduct of the parties (reasonableness, settlement offers, compliance with rules);
4. Whether either party brought the action in good faith;
5. Whether the action was a test case.

### Cost Consequences of Rule 49 Offers

If a Rule 49 offer is rejected and the plaintiff does not obtain a judgment as favourable as the offer, the defendant offeror is entitled to substantial indemnity costs from the date the offer was made (even if the plaintiff wins at trial). This creates a powerful incentive to make and accept reasonable offers.

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## 8. Class Proceedings

### Class Proceedings Act 1992 — Certification Criteria

Ontario's *Class Proceedings Act*, 1992, SO 1992 c 6, permits certification of a class proceeding where:

1. **Identifiable Class**: Members are identifiable and the class is not so large as to make individual resolution more convenient.
2. **Common Issues**: There are common issues of fact or law that would benefit from resolution in a class proceeding.
3. **Preferable Procedure**: A class proceeding is the preferable procedure for resolution of the common issues.
4. **Representative Plaintiff**: The representative plaintiff can fairly and adequately represent the class interests.

The court must also be satisfied that a class proceeding is the best method of resolving the controversy and that the representative is adequate.

### Carriage & Settlement

The court designates a "representative plaintiff" (usually the applicant for certification) who must adequately represent class interests and cooperate with class counsel. Settlement of a class proceeding requires court approval, and class members may opt-out (within limits) to pursue individual claims.

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## 9. Judgment Recognition & Enforcement

### Recognition of Interprovincial Judgments

***Morguard Investments Ltd v De Savoye*, [1990] 3 SCR 1077**, established that Canadian provinces must recognize and enforce judgments from other provinces where the rendering court had "genuine connection" with the subject matter or parties. This applies the same "real and substantial connection" test to inter-provincial judgment recognition.

### International Judgment Enforcement

***Beals v Saldanha*, [2003] SCC 72**, extended judgment recognition principles to international contexts. A foreign judgment is enforceable in Canada if:

1. The foreign court had jurisdiction over the defendant (applying a real and substantial connection test adapted to international standards);
2. The judgment is not contrary to public policy or fraud.

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## 10. Appeals

### Appeal Routes

Ontario civil appeals are structured as follows:

- **Divisional Court** (Rule 62.02): Appeals from motions, summary judgments, and certain interlocutory matters go to the Divisional Court (a branch of the Superior Court).
- **Court of Appeal** (Rule 62.01): Appeals from final judgments and certain interlocutory orders go to the Ontario Court of Appeal.

**Leave to Appeal** is required for some interlocutory appeals. The court considers whether the appeal raises a question of general importance, whether the decision is clearly wrong, or other exceptional circumstances.

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## Key Takeaways for NCA Candidates

1. **Jurisdiction is fundamental**: Understand *Club Resorts* (real and substantial connection) and *Beals* (international context).
2. **Summary judgment is the new norm**: *Hryniak v Mauldin* fundamentally changed Canadian civil procedure; courts now expect efficient resolution without trial in many cases.
3. **Proportionality governs**: The procedural rules are now explicitly proportionate; a multi-million-dollar claim justifies more discovery than a modest one.
4. **Cost consequences are real**: Rule 49 offers create meaningful incentives; unreasonable conduct in settlement negotiations can trigger substantial indemnity costs.
5. **Pleadings remain gatekeeping**: Rule 21 striking motions are still the first line of defense against frivolous claims, but the test is strict (*Hunt v Carey*).
6. **Discovery remains broad but bounded**: Full disclosure is mandatory, but privilege (solicitor-client, litigation) and the deemed undertaking rule provide important limits.
7. **Class proceedings require certification**: The Act imposes strict requirements for certification; certification is not automatic.