A proceeding may be brought by way of an application only when authorized by a statute or the Rules of Civil Procedure . Applications are most appropriate when there are no material facts in dispute and it is possible to argue the issues in dispute on the basis of a paper record (with evidence given by affidavit and out-of-court cross-examinations, rather than live testimony from witnesses in court). In Québec, all proceedings are instituted by originating application. The originating application is accompanied by a summons calling on the defendant to formally appear in the record. RESPONDING TO LEGAL PROCEEDINGS In both Ontario and Québec, once the defendant has been served with the originating process, the defendant has a prescribed period of time in which to respond, in order to participate in the proceeding. In an Ontario action, the defendant must file a statement of defence. In an application in Ontario, a party named as a respondent must file a notice of appearance. In Québec, responding parties must file an answer to the summons and follow with either an oral or a written statement of defence, depending on the complexity or special circumstances of the case. In both Ontario and Québec, a defendant may file a counterclaim if it wishes to make a claim against the plaintiff. A defendant may also join another defendant or a third party to the proceeding. Where there are multiple defendants, any defendant may also bring a crossclaim against one or more of the other defendants. Finally, at any time before judgment, a party that is interested in an action to which it is not already a party may seek permission from the court to intervene in the proceeding, either as a party or as a friend of the court.
Each province prescribes time periods within which a proceeding must be commenced. In Ontario, the general limitation period for most civil claims, such as breach of contract and negligence, is two years. In Québec, the general limitation period for most civil claims is three years. However, the limitation period may vary in certain circumstances. In addition to limitation periods, particularly in the common law provinces and territories, but also in certain circumstances in Québec, a claim can be barred for delay by equitable doctrines such as laches or acquiescence. 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. COMMENCING LEGAL PROCEEDINGS In Ontario, court proceedings can be brought in one of two ways: an action or an application. An action is the default type of legal proceeding. It is usually commenced by the issuance of a statement of claim. However, when there is insufficient time to prepare a statement of claim before the expiry of an applicable limitation period, the plaintiff may commence an action by issuing a notice of action, which contains a short statement of the nature of the claim. A statement of claim must then be issued within 30 days of the issuance of the notice of action. As a general matter, a statement of claim must be served on the defendants within six months of the commencement of the action. An action requires the exchange of pleadings, a full discovery process (as explained below) and ultimately a trial. An application is commenced by the issuance of a notice of application. In contrast to an action, an application is typically a summary type of proceeding.
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Doing Business in Canada
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