Canada: Blakes Guide To Litigation And Dispute Resolution In Canada

I. Introduction

This guide provides an introduction to Canada's civil litigation and dispute resolution system. It describes the procedures followed in Canada's civil courts and administrative tribunals and discusses alternatives to dispute resolution, with a focus on mediation and arbitration.

The following discussion is intended to provide only general guidance and is not an exhaustive description of all procedures and laws that may apply in any proceeding or dispute. For this reason, the reader should not rely solely on this guide and should seek the advice of qualified counsel for assistance in dealing with any problem or dispute.

The onset of the COVID-19 pandemic in early 2020 bears mention as it has had a big impact on litigation in Canada. Most courts, tribunals and arbitration panels were in the process of modernizing to adopt practices such as electronic filing and virtual (online) appearances when the pandemic arose, but that modernization process has accelerated as a result of the pandemic. The progress of these reforms is uneven across the country and is expected to be a work-in-progress for the foreseeable future. Readers are strongly encouraged to consult experienced counsel in each region or court for current options and practices.

This information is current as of July 2020.

1. Overview

Canada is a federal system comprised of 10 provinces and three territories. In addition to a federal government, each province and territory has its own government. At the federal level, the seat of government is in Ottawa, where members of Parliament from across Canada convene. Additionally, the people of each province elect members to a Provincial Legislative Assembly or a Provincial Parliament.

Due to Canada's federal structure, depending on the subject matter, both federal and provincial legislation may need to be considered. Because the provinces have authority over the administration of justice, there may be instances when it is more advantageous or appropriate to bring or defend an action in a particular province.

2. Court System

There are three types of courts in Canada. Selecting the court in which to commence or respond to an action is a critical step in the litigation process.

The Superior Court of each province and territory is the court that most commonly decides cases involving commercial litigants. These are courts of general and inherent jurisdiction that hear both civil and criminal matters. Depending on the province, the trial level is referred to as the Court of Queen's Bench, the Supreme Court or the Superior Court. Each province has its own appeal court, which is referred to as the Court of Appeal of the particular province. Appeals from the Court of Appeal of any province are heard by the Supreme Court of Canada.

The second type of court in Canada is the provincial court, which obtains its jurisdiction from provincial legislation. Typically, the provincial court will have jurisdiction over some civil, criminal, family and provincial law matters. The provincial court's jurisdiction over civil disputes is significantly restricted as compared to the Superior Court's jurisdiction. For instance, in Alberta, the provincial court has no jurisdiction over land disputes, and it can only hear disputes where the value of the claim does not exceed C$50,000. Appeals from the provincial court generally go to the Superior Court of the particular province or territory

The third type of court, the federal courts, have jurisdiction over federal legislation, such as the Income Tax Act and the Trademarks Act, certain issues under the purview of the federal government pursuant to the division of powers and, importantly, over all federally administered administrative boards, commissions and tribunals. The Federal Court of Canada and Tax Court of Canada are both trial level courts that can be appealed to the Federal Court of Appeal. Appeals from the Federal Court of Appeal are heard by the Supreme Court of Canada.

The final appellate court is the Supreme Court of Canada, Canada's highest court. In certain circumstances, predominantly in criminal law, appeals to the Supreme Court of Canada are as of right. In most circumstances, however, litigants in civil cases can only appeal if they obtain permission — or leave — from the Supreme Court of Canada.

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© 2020 Blake, Cassels & Graydon LLP.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.