CHAPTER 16 Civil Litigation
A party contemplating litigation should seek legal advice as soon as it becomes aware that it may have a claim, to protect against the expiry of any potential limitation period. It is nonetheless common practice in many types of disputes for a party contemplating litigation to send a demand letter to the opposing party before commencing proceedings if doing so will not result in any prejudice to its claim. In appropriate circumstances, it may be advisable to send such a demand because doing so could determine when interest will begin to accrue on any amount that the court may ultimately award. Commencing and Responding to Legal Proceedings in Canada STEPS REQUIRED BEFORE COMMENCING LEGAL PROCEEDINGS Generally speaking, a party is not required to do anything before commencing proceedings by filing the appropriate document with the court. However, there are exceptions to this rule. For example, when the constitutionality of a law is challenged or the government (federal or provincial) is otherwise involved, special notice to the government may be required before or at the time of commencing proceedings. In addition, certain types of claims cannot be asserted or pursued without permission being obtained from the relevant court.
PROCEEDINGS IN ONTARIO AND QUÉBEC The superior courts of Ontario and Québec are of general jurisdiction and can hear any matters – both criminal and civil – within the province that are not specifically excluded from their jurisdiction by statute or rules of procedure. Proceedings at first instance in the superior courts are heard by a single judge. The role of the judge in Québec (in contrast to some other civil law jurisdictions) is limited to an adjudicative role, as is the case in common law jurisdictions like Ontario. The judge plays no role in investigating the facts of the proceeding. In Québec, there are no jury trials in civil matters. In Ontario, the parties have the right to have the case heard by a jury in all matters. In practice, jury trials are common in personal injury litigation, but rarely invoked in commercial disputes. There are no civil proceedings that must be tried by a jury. The court retains discretion to strike out a jury notice and require a trial by judge alone. A jury notice can be struck out on the basis of the complexity of the case. As a result, juries are very rarely requested in complex commercial litigation matters. The official languages of Canada are English and French, and a party to a legal proceeding in Canada, including in Ontario and Québec, is generally entitled to have the matter tried in either English or French.
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