Using The Courts - An Overview Of Civil Procedure

The Court System

Canada has a three-tier system similar to that of England, with courts of first instance (trial courts), intermediate courts of appeal, and the Supreme Court of Canada. Figure 1-2 illustrates the federal court system and Figure 1-3 illustrates the Ontario provincial court system.

Figure ; The Federal Court System

The Federal Court (Trial Division) has jurisdiction over claims against the federal government, litigation in areas of federal jurisdiction under the Constitution, and appeals from federal tribunals.

The Tax Court of Canada has jurisdiction over goods and services tax, income tax, employment insurance, and appeals from tribunals in these areas.

The Federal Court of Appeal hears appeals from the Tax Court and the Federal Court (Trial Division).

The Supreme Court of Canada is the highest court in the country. It is necessary to have leave, or permission, to appeal to the Supreme Court. The Court generally agrees to hear only cases that raise an issue of national importance. Appeals are almost always heard by five, seven, or nine justices (as the judges are called).

Figure; The Ontario Court System

The Ontario Court of Justice (Trial Court) uses provincially appointed judges for family-law (custody, support, and adoption) cases and for less-serious criminal offences. Justices of the Peace are used for provincial offences (traffic tickets), search warrants, and bail hearings.

The Superior Court of Justice (Trial Court) uses federally appointed judges. It handles all civil litigation, family litigation (custody, support, and divorce), and more-serious criminal offences. For civil litigation, Ontario has a Small Claims Division that handles claims up to $25,000. Claims between $25,001 and $100,000 are resolved out of the Superior Court using a special set of simplified rules.21 Claims in excess of $100,000 are dealt with by the Superior Court of Justice under the regular Rules of Civil Procedure.22 The Divisional Court of the Superior Court has appellate jurisdiction for review of government action, appeals from the decisions of government tribunals, and appeals of civil cases up to $50,000.

The Court of Appeal for Ontario (Appellate Court) decides cases in panels of three judges or more. It hears appeals from the Superior Court. In most other provinces, the Small Claims Court is a division of the Provincial Court. Ontario’s “provincial court” is the Ontario Court of Justice. Finally, the Supreme Court of Canada has jurisdiction over all appeals from provincial appeal courts.

The Litigation Process

Litigation is the system of resolving disputes in court. As a general rule, all adults are free to use the Canadian courts, whether or not they are Canadian citizens. Minors or adults with a mental disability can be sued or sue only through a court-appointed representative. Corporations are legal persons and therefore can sue or be sued. Unincorporated associations, with the exception of trade unions, cannot sue or be sued, but their individual members can. The general rule is that the “king can do no wrong,” which means governments cannot be sued unless a statutory authority permits it.

Class action suits are also allowed, where a single person or a small group of people sues on behalf of a larger group of claimants. Class action claims are becoming increasingly prevalent in areas like product liability, mass torts (e.g., contaminated water supply), gender discrimination in the workplace, banking (e.g., improper service charges), business law (e.g., price fixing), and securities law (e.g., insider trading).

Figure sets out the basic requirements that must be met before a class action receives certification by the court to allow the various claims to be joined together in a class action.

Figure ; Class Action Suits

Legal Representation

If you sue or have been sued, you need to choose who will be your legal representative. Although you can represent yourself, an old expression states that, if you do, you have “a fool for a lawyer and a fool for a client.” Therefore, most litigants are represented by either a lawyer or a paralegal.

Procedures Before a Trial

The legal action begins with the filing of a statement of claim, in which the plaintiff (the person bringing forward the dispute) sets out the facts that allegedly have given rise to the cause of action and the plaintiff’s damages.

The defendant (the person being complained about) responds by filing a statement of defence, in which the defendant outlines his or her version of the facts complained about by the plaintiff. The defendant may also file a counterclaim, a document that outlines any complaint the defendant wishes to counter against the complaint of the plaintiff.