CHAPTER 16 Civil Litigation
Default Judgments In both Ontario and Québec, a plaintiff can obtain a default judgment against a defendant that, after being served with the originating process, fails to file a defence with the court (or in Québec, to answer the summons). A default judgment can be set aside in certain circumstances. In Ontario, a court will set aside a default judgment if the defendant can establish that its failure to file a defence was not wilful or deliberate and that it moved promptly to have the default judgment set aside. In Québec, a party seeking to set aside a default judgment must establish that it was prevented from filing a defence by surprise, by fraud or for some other sufficient reason justifying its failure to defend the proceeding. Consent Judgments In both Ontario and Québec, a defendant can, at any stage of a proceeding, consent in whole or in part to the plaintiff’s claim. If the defendant has consented to only a portion of the plaintiff’s claim, a judgment may be immediately obtained for that portion of the claim, and the proceedings will continue in respect of the balance of the claim.
before the court will authorize a class action. The court will assess, among other things, whether there is sufficient commonality between the claims of the members of the class such that it is appropriate and in the interest of justice to permit the case to proceed as a class action. If a class action is authorized, it will proceed to a “common issues” trial (unless the parties agree to settle it before trial). Such a trial is intended to decide all of the issues common to the members of the class. Once those issues are resolved, a protocol will usually be established to address any outstanding individual issues that could not be determined on a class-wide basis. If a class action is not authorized, the action may continue as an individual action. In practice, however, this rarely occurs. SIMPLIFIED PROCEDURES A number of provinces have simplified procedures that can be used to resolve disputes of lower monetary value. For example, in Ontario, claims for $200,000 or less in respect of money, real property or personal property must be brought under a simplified procedure. This procedure provides for a faster and less expensive determination of disputes. Similarly, in Ontario, cases involving $35,000 or less can be brought before the Small Claims Court, which requires less formal procedures than the Superior Court. In Québec, although there is no simplified procedure as such, in cases in which the amount claimed or the value of the property claimed is less than $50,000, no pre-trial examination of witnesses is permitted. Moreover, as long as the plaintiff is not an entity with more than 10 employees, if the amount of the claim is $15,000 or less, the case must generally proceed before Small Claims Court, where representation by lawyers is only very exceptionally permitted.
Special Proceedings
CLASS ACTIONS A class action is a proceeding instituted by one or more persons who seek to represent the interests of a “class” of persons with similar claims against the same defendant or defendants. In both Ontario and Québec, the person seeking to represent a class, generally referred to as a “representative plaintiff,” must bring a motion or application seeking approval of the court to proceed with the action as a class proceeding. Ontario and Québec have similar tests that must be satisfied
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