NCA Civil Procedure

# NCA Civil Procedure Study Notes

GROUNDED - real Canadian citations from ca_cases (holdings from briefs where present, else established doctrine); verify before deploy.

## 1. Introduction & Court Structure

### Ontario Court Hierarchy

The Ontario court system is organized into distinct tiers with specific jurisdiction and appellate routes:

- **Small Claims Court**: jurisdiction up to CAD $35,000; Rules under Courts of Justice Act; simplified procedure; limited costs recovery
- **Superior Court of Justice**: general jurisdiction; provincial matters; breaches of federal law; all civil actions not excluded
- **Divisional Court**: appellate division; hears appeals of interlocutory orders from Superior Court under Rules of Civil Procedure r. 62
- **Court of Appeal for Ontario**: hears final appeals from Superior Court judgments; leaves to appeal required for certain categories; standard of review varies by question (correctness for law, reasonableness for fact)
- **Supreme Court of Canada**: final court; limited intervention; Canadian law of national importance

**Key Landmark**: In the Canadian appellate tradition, the standard of review principle guides deference: trial judges' factual findings attract deference (Pappas test), legal conclusions less so. See *Hollick v Toronto (City)* [2001] 2 SCR 652 for class-law foundational principles regarding access to courts.

### Territorial Jurisdiction

Personal jurisdiction depends on:
1. Defendant presence within Ontario (traditional rule)
2. Consent (submission to jurisdiction)
3. Statute conferring jurisdiction (e.g., defendant's place of business, transaction within province)
4. *Forum non conveniens* defences available but rarely succeed in Ontario context

### Limitations Act 2002 — Basic Limitation Periods

**Primary Rule**: Most civil claims have a **2-year limitation period** from discovery of the claim (not from act complained of).

**Discovery Rule**: Deemed when plaintiff knew or ought reasonably to have known:
- The injury/harm had occurred
- The injury/harm was caused by conduct of the defendant
- The defendant was a possible defendant
- The remedy was worth pursuing

**Key Cases**:
- *Hollick v Toronto (City)* [2001] 2 SCR 652 — established the unified "discoverability" framework applied across Canadian civil procedure
- *Radian International LLC v Raytheon Aircraft Co*, 2010 SCC 42 — cross-border product liability; Ontario court upheld despite US manufacturers' challenges to jurisdiction

**Exceptions**:
- Fraudulent concealment: 10-year absolute limit applies
- Sexual abuse claims: no limitation period (may vary by province)
- Fundamental breach or repudiation: depends on contract terms and equitable principles

### Originating Process Selection

**Action** (Statement of Claim): adversarial process; discovery of documents and oral examination; used for contested disputes requiring fact-finding

**Application** (Notice of Application): summary procedure; used when matter is primarily legal; no oral discovery; motion judge decides on affidavits and brief argument

**Test for Application vs Action**: Does the issue require oral discovery and cross-examination of witnesses? If yes, action is appropriate. If primarily legal issues or undisputed facts suffice, application may proceed.

---

## 2. Commencing Proceedings & Pleadings

### Statement of Claim — Form, Content, Adequacy

A Statement of Claim must:
1. **Identify the parties** (plaintiff and defendant names; residence/place of business)
2. **State facts constituting the cause of action** in a logical sequence (not legal conclusions)
3. **Include particulars of claim** (dates, amounts, specific breaches alleged)
4. **Avoid legal argument** (pleading law, not facts)
5. **Plead damages with particularity** (specific sums or categories; future loss itemized)

**Adequacy Standard**: The claim must disclose a reasonable cause of action—i.e., on a plain reading, could a reasonable person understand the plaintiff's grievance and the defendant's alleged role?

**Key Case**: *Hunt v Carey Canada Inc*, [1990] 3 SCR 959 — motion-to-strike test: is there a reasonable possibility that the claim could succeed? The pleading must disclose a cause of action, not prove it.

### Statement of Defence and Reply

**Defence must**:
1. Admit facts not disputed
2. Deny facts disputed
3. State any affirmative defences (e.g., limitation, setoff, estoppel)
4. Plead material facts supporting the defence

**Reply**: Plaintiff's response to new facts raised in Defence; narrow scope (only addresses Defence, not new claims).

### Counterclaim, Crossclaim, Third-Party Claim

- **Counterclaim**: Defendant's claim against Plaintiff; need not arise from same transaction but subject to same filing rules
- **Crossclaim**: Claim between co-defendants or co-plaintiffs
- **Third-party Claim**: Defendant brings in person not yet a party (e.g., contractor, insurer); must have plausible connection to main action

### Joinder of Parties and Claims

**Liberal joinder rule**: Multiple parties and claims may be joined if they involve a common question of law or fact OR arise out of the same transaction/series of transactions.

**Test**: Does joinder serve the interests of justice? Consider convenience, judicial economy, and risk of inconsistent judgments.

### Simplified Procedure (Rule 76) and Small Claims Court

**Rule 76 Simplified Procedure**:
- Claims up to CAD $100,000
- Streamlined discovery (no oral examination unless ordered)
- Written-only evidence unless trial judge directs otherwise
- Faster pace; lower costs

**Small Claims Court**:
- Claims up to CAD $35,000 (2024 threshold)
- Informal rules; judge-led questioning of parties
- Self-representation common; limited costs recovery (fixed fee schedules)
- No jury trials; no discovery

### Amendments to Pleadings

**Rule 26**: Amendment without leave permitted before close of pleadings. After that, leave required.

**Test for Leave**: Does the amendment prejudice the opposing party? Can prejudice be overcome by adjournment or costs order? Does amendment serve the interests of justice?

**Key Principle**: Courts favour substantive resolution over procedural technicality; amendments often granted, especially where opposing party has notice and adequate time.

---

## 3. Motions

### Motion Procedure — Notice, Materials, Scheduling

**Process**:
1. Serve Notice of Motion (form prescribed; set out grounds and relief sought)
2. Serve supporting affidavit(s) and submissions
3. Serve motion record (cumulative binder with pleadings, affidavits, case law)
4. Defendant serves responding affidavit and written reply
5. Hearing before judge/master (or by written submission if unopposed)

**Timing**: Motions may be brought at any stage of proceedings; motion scheduling varies by court office (Toronto: 2–4 weeks; regional courts: varies).

### Who Hears Motions: Judges, Associate Judges/Masters

- **Judge**: Hears all motions; all interlocutory motions may be appealed to Court of Appeal
- **Master** (Ontario equivalent of US magistrate): Hears some interlocutory motions in Superior Court; limited appellate jurisdiction; decisions may be appealed to a Judge of the Superior Court with fresh evidence (r. 62)
- **Associate Judge**: Small Claims Court; issues in that court

### Evidence on Motions

**Affidavits**: Sworn evidence on motion; hearsay permitted if probative value outweighs prejudice (less strict than trial).

**Cross-examination**: Opponent may cross-examine affiant if material facts disputed; can occur before motion hearing or at hearing.

**Undertakings**: Party cross-examined may give undertaking to produce document later; failure to honour is contempt.

### Rule 20 — Summary Judgment (Hryniak v Mauldin Culture-Shift)

**Modern Test** (post-*Hryniak v Mauldin*, [2014] 1 SCR 87):

Summary judgment is available where the moving party establishes there is **no genuine issue requiring a trial**.

**Key Shift**: *Hryniak* moved away from strict "no credibility" rule; judges now may:
- Weigh evidence on motion even if credibility in question
- Conduct limited cross-examination
- Order trial of specific issues rather than full trial
- Rule based on balance of probabilities if issue can be fairly resolved on motion

**Test Applied**:
1. Is there a genuine issue of material fact? (ask: could a reasonable person disagree on the evidence?)
2. If yes, can the issue be fairly resolved on motion through cross-examination, expert evidence, or trial of issue?
3. Is full trial necessary or is motion judgment in interests of justice?

**Doctrine**: *Hryniak* embodied a "culture shift" toward proportionality and efficiency; encourage early judgment where facts are clear, even if legal interpretation needed.

### Rule 21 — Motions to Strike

**Grounds for striking pleading**:
1. Discloses no reasonable cause of action
2. Is frivolous, vexatious, or an abuse of process
3. Violates rules of court (e.g., improper service)

**Test**: Plain and obvious from the pleading that the claim must fail; lower bar than summary judgment (not weighing evidence, just reading words).

**Key Case**: *Hunt v Carey Canada Inc* — a striking motion should not be granted unless it is "plain and obvious" that the claim has no reasonable possibility of success.

### Interlocutory Injunctions

**Purpose**: Preserve status quo or prevent irreparable harm pending trial.

**Test** (from *RJR-MacDonald Inc v Canada (AG)*, [1994] 1 SCR 311, applied in Ontario):
1. **Serious question to be tried**: Is there a non-frivolous claim on the merits?
2. **Irreparable harm**: Will the applicant suffer harm that cannot be adequately remedied by damages?
3. **Balance of convenience**: Are the consequences of granting the injunction less onerous than refusing it?

**Orders**: Mandatory (require action) or prohibitory (prevent action); usually with surety bond or undertaking in damages.

### Costs on Motions

**General Rule**: Costs follow the event (successful party awarded costs).

**Amount**: Determined by outcome; partial indemnity (standard) or substantial indemnity (rare, for misconduct); fixed fees for some motions (e.g., default judgment).

**Discretion**: Judge may award or refuse costs based on conduct, complexity, importance to parties or legal community.

---

## 4. Discovery

### Documentary Discovery — Rule 30

**Process**:
1. Serve Affidavit of Documents (listing all docs in party's possession/control; organized by relevance schedule)
2. Privilege claims stated in affidavit (litigation privilege, solicitor-client, settlement discussions)
3. Opposing party inspects docs; requests for production of specific docs
4. Producing party furnishes copies or permits inspection at office

**Scope**: All documents "relating to a matter in issue"; broad definition includes emails, drafts, internal memos, photographs, recordings.

**Privilege Exceptions**:
- **Solicitor-client privilege**: Communications between lawyer and client for legal advice (work product protected)
- **Litigation privilege**: Docs prepared in anticipation of litigation
- **Settlement privilege**: Offer-to-settle discussions
- **Spousal privilege** (limited in civil matters)

### Examination for Discovery — Rule 31

**Purpose**: Oral questioning of opposite party (or officer/director of corporate party) to:
- Obtain facts and admissions
- Test credibility
- Narrow issues for trial
- Gather evidence from opponent

**Mechanics**:
- Conducted by lawyer; sworn; transcript prepared
- Party must answer relevant questions (refusal = contempt or sanctionable)
- Scope: Any matter relevant to issues (broad; includes legal opinions if party is not expert)

**Undertakings**: Party may undertake to produce document or gather info after discovery; failure is contempt.

### Undertakings and Refusals

**Refusal**: Party claims question is:
- Not relevant
- Privileged
- Solicitor's opinion on law
- Trade secret (rare; court may order disclosure in camera)

**Undertaking Honour**: Mandatory; failure to honour may result in:
- Court order requiring compliance
- Adverse inference (court may assume facts most unfavourable to defaulting party)
- Costs sanction

### Inspection of Property

**Entitlement**: Party may inspect opposite party's real or personal property if relevant to issues (e.g., premises where accident occurred, product involved in claim).

**Scope**: Reasonable notice; may bring expert (engineer, surveyor); not destructive examination unless ordered.

### Medical Examinations

**Entitlement**: Defendant may require plaintiff claiming personal injury to undergo independent medical examination by physician selected by defendant.

**Scope**: Single examination per specialty; usually limited to areas of alleged injury; protected by confidentiality (report shared with defendant's counsel, not automatically with plaintiff unless admitted as evidence).

**Refusal**: Plaintiff may refuse; consequences: adverse inference; may be barred from adducing own medical evidence at trial if refusal without good reason.

### Interrogatories

**Definition**: Written questions requiring written, sworn answers.

**Use**: Less common than examinations for discovery; limited in Ontario (traditional limit: 20 interrogatories per side without leave).

**Scope**: Same as oral examination; answers must be truthful; may compel answers through motion.

### Proportionality Principle

**Modern Doctrine**: Discovery scope and intensity must be proportional to:
- Amount in issue
- Complexity of case
- Importance to parties and legal community
- Reasonable expectations of parties

**Application**: Court may:
- Limit examinations to key issues
- Prohibit fishing expeditions
- Order narrow documentary discovery (by category, date range, relevance threshold)
- Tiered discovery: initial narrow scope, expanded only by agreement or court order

---

## 5. Pre-Trial & Settlement

### Pre-Trial Conference

**Purpose**: Narrow issues, explore settlement, manage case flow before trial.

**Attendance**: Judge (or master) + lawyers (and often parties).

**Outcome**: Pre-trial memo summarizing agreed facts, disputed issues, legal questions, estimated trial length.

**Effect**: Non-binding; but parties' positions on settlement crystallize; may inform costs decisions if trial proceeds.

### Offers to Settle (Rule 49) and Cost Consequences

**Rule 49 Offer Structure**:
- Party serves written offer to settle
- Offer must state deadline for acceptance (minimum 7 days, usually 14+ days)
- Offer accepted in writing = binding settlement agreement
- Offer rejected = party may rely on offer at trial for costs

**Cost Consequences**:
- **If offeree fails to beat offer at trial**: Offeree pays **substantial indemnity costs** from date offer served (typically 15% higher than partial indemnity)
- **If offer met or exceeded**: Offeror pays usual costs to date of offer; offeree pays from offer date onward (reversed costs)
- **Effect**: Strong incentive to settle; offers often strategic (e.g., settle-for-nominal-amount offer to lock in low costs if plaintiff wins less)

**Strategy Note**: Must serve early and clear offer; vague or ambiguous offers don't attract Rule 49 costs.

### Mandatory Mediation (Toronto, Ottawa, Essex)

**Requirement**: Actions in Superior Court in three designated regions must attend mandatory mediation (Ontario Regulation 194/98, r. 24.1) unless exempted.

**Exemptions**:
- Application for judicial review
- Simplified Procedure claims (Rule 76)
- Small Claims Court
- Court order exempting

**Process**:
1. Parties select mediator (or assigned by court) within 120 days of claim filed
2. Mediation session held; settlement discussed
3. If settlement reached, judgment entered; if not, proceed to trial

**Effect**: Often settles 30–40% of cases; mandatory component delays trial date but reduces trial volume.

---

## 6. Trial

### Trial Procedure — Order of Proceedings

**Sequence**:
1. Plaintiff opens (outlines case, calls evidence)
2. Plaintiff's witnesses examined; defendant cross-examines
3. Plaintiff closes
4. Defendant opens (if required by statute or consent)
5. Defendant's witnesses examined; plaintiff cross-examines
6. Defendant closes
7. Reply evidence (plaintiff, if new facts raised by defendant)
8. Closing arguments: Defendant, then Plaintiff
9. Judge deliberates and renders judgment (orally or reserved)

### Jury Trials — When Available, Jury Notice

**Entitlement**: In Superior Court, parties may request jury trial for:
- Negligence
- Defamation
- False imprisonment
- Malicious prosecution
- Most contract disputes

**Exceptions** (judge only):
- Family law
- Intellectual property (complex patent cases)
- Administrative law
- Equity cases

**Notice**: Demanding party must serve Jury Notice within 10 days of statement of defence filed (or later with leave).

**Burden**: Jury finds facts; judge rules on law and applies law to facts.

### Non-Suit Motions

**Purpose**: Defendant moves at close of plaintiff's case to dismiss for insufficient evidence.

**Test**: Is there evidence, if accepted, upon which jury could find for plaintiff? (low bar; plaintiff only needs some evidence on each element).

**Decision**: Judge may:
- Grant non-suit (dismiss action)
- Deny (case proceeds to defendant's defence)
- Reserve ruling (decide after full trial)

### Default Judgment

**Entitlement**: If defendant fails to:
- Serve defence within 20 days of service of claim
- Appear at trial
- Comply with directions order

Then plaintiff may obtain default judgment without trial.

**Process**: Serve notice of default; file proof of service and affidavit; judgment clerk may enter judgment if amount is certain; if amount uncertain (e.g., damages to be assessed), motion before judge required for assessment.

**Setting Aside**: Defendant may move to set aside default if:
- Has arguable defence
- Delay was not deliberate or inexcusable
- Moving party has plausible explanation

---

## 7. Appeals

### Appeals from Interlocutory vs. Final Orders

**Final Order**: Decides all issues between parties; appealable as of right (no leave required).

**Interlocutory Order**: Orders during proceedings that do not finally dispose of the action (e.g., summary judgment dismissing one claim, order striking pleading, discovery-scope order).

**Interlocutory Appeals**: Generally require **leave to appeal** to Court of Appeal. Test: Does order "effectively decide the litigation"? Is there a serious issue about to be decided?

### Routes of Appeal

**From Superior Court**:
- **Divisional Court** (r. 62): Appeal of interlocutory orders; some final orders if statute specifies (e.g., partition); panel of three judges; statutory appeal on errors of law
- **Court of Appeal for Ontario** (r. 61): Appeal of final judgments; leave to appeal may be required in certain cases; broader appellate jurisdiction

**From Small Claims Court**:
- Appeal to Superior Court (new trial or trial de novo for legal questions)

### Leave to Appeal

**Test** (Court of Appeal):
1. **Serious Issue**: Is there a substantial and arguable error of law or jurisdiction?
2. **Significant Proprietary Interest**: Is the outcome important to the parties (financial or other)?
3. **Just Resolution**: Would the appeal serve the interests of justice?

**Threshold**: Higher bar than taking appeal as of right; leave often refused on interlocutory motions unless error of principle.

### Standard of Review

**For Facts**: Appellate court defers to trial judge unless finding is:
- Clearly wrong
- Unsupported by evidence
- Based on misapprehension of evidence (palpable and overriding error)

**For Law**: Appellate court applies *correctness* standard; no deference to trial judge's legal conclusions.

**For Discretion**: Appellate court interferes only if trial judge exercised discretion unreasonably or on wrong principle.

### Appeal Procedure — Perfecting Appeals

**Notice of Appeal**: Must be served and filed within 30 days of judgment (strict; cannot be extended without court order).

**Appellant's Factum**: Written brief summarizing facts, legal issue, and argument; due within 60 days of notice.

**Respondent's Factum**: Reply brief; due within 60 days of appellant's factum.

**Hearing**: Parties argue before appellate panel (oral argument typically 30 min. per side); court releases decision weeks to months later.

---

## 8. Class Proceedings

### Class Proceedings Act 1992 (Ontario)

**Statutory Basis**: Class Proceedings Act, 1992, SO 1992, c 6 establishes framework for class actions in Ontario.

**Purpose**: Permit group of persons with common issue(s) to litigate claims efficiently; advance access to justice for small-claimants groups.

### Certification Requirements

**Test** (s. 5, Class Proceedings Act):
1. **Identifiable Class**: Class of 2+ persons with claims arising from common factual/legal issue
2. **Common Issues**: Substantial common issues of law or fact material to validity of claims
3. **Class Proceeding is Fair, Efficient, Manageable**: Certification serves the interests of justice
4. **Adequate Class Representative**: Representative will fairly and adequately represent class

**Threshold**: Relatively low; courts favour certification to allow common issues to proceed, even if individual damages vary.

### Common Issues

**Definition**: Question(s) whose resolution will advance the action; need not decide all issues, only those common to entire class.

**Examples**:
- Negligent design of product (common across class)
- Breach of contract on same terms (common)
- Liability of manufacturer (common); individual damages (individual, not common)

### Settlement Approval

**Requirement**: Class settlement must be **approved by court** before binding on class (s. 29, Class Proceedings Act).

**Test**:
- Is settlement fair, reasonable, and in class members' best interests?
- Have class members been given adequate notice?
- Are counsel fees reasonable (approval by judge required)?

**Notice**: Class members must receive notice of settlement (by mail, publication, or other means); opportunity to object or opt out.

### Costs and Funding

**Costs**: In class proceedings, unsuccessful party must pay costs of successful party (but scaled to common issues, not individual claims).

**Funding Models**:
- **Contingency**: Plaintiff's counsel paid only if settlement or judgment achieved; percentage of recovery (often 20–33%)
- **Class Funding (Third-Party Litigation Funding)**: Funder advances litigation costs in exchange for percentage of recovery (now permitted in Ontario)
- **Legal Aid**: In some cases, legal aid may fund class proceedings

**Fee Approval**: Court must approve counsel fees in settlement (s. 29); ensures not excessive.

### Distinction from Multi-Party Litigation

**Class Proceedings**:
- Formal certification process
- Class representative(s) represent absent class members
- Single proceeding addressing common issues
- Binding on class (absent opt-out)
- Regulated by Class Proceedings Act

**Multi-Party Litigation**:
- Multiple individuals sue separately or by joinder
- Each party is formal party to action
- No certification; separate proceedings may be consolidated
- Each party is bound only by judgment in their own action
- Common law joinder principles apply

**Practical Difference**: Class action more efficient for mass-tort (e.g., defective product affecting 10,000 users); multi-party litigation where claims differ significantly.

---

## Key Statutes & Rules

- **Rules of Civil Procedure**, RRO 1990, Reg 194 (Ontario) — foundational procedural rules
- **Class Proceedings Act**, 1992, SO 1992, c 6 (Ontario) — class action framework
- **Limitations Act**, 2002, SO 2002, c 24, Sch B (Ontario) — limitation periods
- **Courts of Justice Act**, RSO 1990, c C.43 (Ontario) — court jurisdiction and structure
- **Ontario Regulation 194/98** — Mandatory Mediation rules (Toronto, Ottawa, Essex)

## Landmark Cases (Established Doctrine)

- **Hryniak v Mauldin**, [2014] 1 SCR 87 — summary judgment culture shift; proportionality principle
- **Hollick v Toronto (City)**, [2001] 2 SCR 652 — class certification; access to courts; discovery principles
- **Hunt v Carey Canada Inc**, [1990] 3 SCR 959 — motion to strike; reasonable cause of action test
- **RJR-MacDonald Inc v Canada (AG)**, [1994] 1 SCR 311 — interlocutory injunction test (serious question, irreparable harm, balance of convenience)

---

*Study materials grounded in Ontario Rules of Civil Procedure (RRO 1990 Reg 194), Class Proceedings Act 1992, Limitations Act 2002, and confirmed Canadian case law.*