Canada: Litigating A Cross-Border Dispute In Canada: 10 Things American Lawyers Need To Know Before Getting Started

Last Updated: January 30 2012
Article by Brett G. Harrison

It is not surprising that given their shared history and high level of integration, the US and Canada have very similar civil justice systems. However, there are many important differences that can have a tremendous impact on trial strategy and the resolution of a dispute. Understanding these differences can help create a winning strategy when a US litigant faces a dispute in Canada.

This article is intended to provide some general information about 10 key aspects of litigating in Canada that American lawyers will find beneficial. (Because of its unique history, the law of Québec is based on the French Civil Code. Therefore, any generalizations about the Canadian legal system may not be applicable to Québec.)


Like the United States, Canada has a federalist system of government with a discrete separation of powers, where the federal government has certain enumerated powers and the 10 provinces have certain enumerated powers. The administration of the civil justice system falls within the exclusive domain of the provincial governments. Similar to state courts in the US, provincial courts in Canada have trial courts of general jurisdiction and courts of limited jurisdiction, including small claims court, municipal courts, family courts, juvenile courts and criminal courts. Each province also has a court of appeal of last resort. There are no provincial intermediate courts of appeal.

Although there is a federal court system, the jurisdiction of Canadian federal courts is much more limited than US federal courts. Generally speaking, federal courts in Canada only have the authority to hear matters involving the Canadian federal government and certain federal statutory matters. Examples include immigration and refugee matters, elections, privacy, environmental impact assessments, national defense, aeronautics and transportation, oceans and fisheries, First Nations and intellectual property rights. However, unlike in the US, for instance, bankruptcy in Canada falls under provincial law and bankruptcy matters are resolved in provincial courts. All criminal matters are tried in provincial courts only — never in federal courts. There is no such thing as "diversity jurisdiction" for federal courts in the Canadian system.

Given the very limited nature of federal court jurisdiction in Canada, Canadian lawyers often have a difficult time understanding the complexities of the interconnectedness between state courts and federal district courts. In addition, the rules of venue in Canada are generally not nearly as robust as what is generally the case in the US. Accordingly, there is a great deal less strategy involved in determining where to file suit in Canada than what might normally be the case in the US.


When a lawsuit is filed in Canada, the action is assigned to the courthouse where it was filed and the physical file is kept in the registrar's office. At each step in the proceeding, any judge or master of the court could be assigned to handle the particular matter before the court. Moreover, when a party brings a motion, only the materials filed by the parties that relate specifically to that matter will be presented to the judge assigned to hear that matter. As a result, each step in a proceeding is often handled by a different judge who most likely will have no knowledge of anything else that has happened in the case that does not relate directly to the particular matter before the judge at that moment.

Therefore, contrary to the experience in many US courts, where judges often tend to keep their dockets free from backlogs, in Canada it is much more difficult to move matters along in an efficient and expeditious manner. As a result, it is not uncommon for cases to take many years to move through discovery and on to trial. In addition, because every motion and every step in the proceeding is typically handled by a different judge, it is much more difficult to obtain consistent rulings throughout a case and there is much less predictability, particular with respect to how the case might be tried.


Unlike in the US, where attorneys' fees generally are not recoverable unless specifically permitted by statute or contract, in Canada attorneys' fees (or "costs") are awarded to the prevailing party in almost every action. In other words, the prevailing party at trial or on appeal can expect the opposing party to be ordered to pay anywhere from 50 to 90 per cent of the prevailing party's actual legal costs.

In addition, attorneys' fees are typically awarded to the prevailing party on a motion. For instance, if a party brings a discovery motion or a motion for summary judgment, the losing party likely will be ordered to pay the prevailing party's legal fees (or a portion of them) incurred in responding to the motion. When "costs" are awarded on a motion, normally the cost award must be paid within 30 days and the party required to pay costs is prohibited from taking any further steps in the litigation until the award has been satisfied.

Awarding costs at trial, on appeal, or on a motion is a very important procedural device used by the courts to control the legal process. Therefore, judges in Canada have very broad discretion in determining the amount in costs to award. As a result, because of the significant consequences that can result from losing at trial or even being denied relief on a motion, litigants in Canada tend to be decidedly more cautious when filing pleadings or motions with the court.

These cost-shifting rules have a tremendous impact on litigation strategy in Canada, both with respect to whether suit should be filed and what claims should be asserted, and with respect to what strategies should be employed to move the action along or bring the suit to resolution.


One key element of Canada's cost-shifting approach is that a plaintiff who brings an action must have sufficient assets within the jurisdiction of the court to pay a cost award in favor of the defendant in the event the plaintiff's claim fails. Therefore, foreign plaintiffs and corporate plaintiffs who lack sufficient assets located within the jurisdiction of the court to pay the costs of the defendant can be ordered to post security for costs before proceeding with the action.

The amount of security is generally equal to the attorney's fees the court is likely to award should the defendant prevail in the action. Security is posted in cash, letter of credit or surety bond. In some cases, the plaintiff may provide security in installments that match the actual costs incurred by the defendant as the case progresses.


Canadian courts take a very different approach to personal jurisdiction from the due process analysis familiar to US litigants. There are 10 provinces in Canada and, like each of the 50 states, each province is a distinct judicial jurisdiction. However, unlike in the US, where a suit can only be brought in a state where the defendant has sufficient minimum contacts, lawsuits in Canada are to be heard in the province that has the most "real and substantial connection" to the matter in dispute. The appropriateness of filing suit in the jurisdiction of the defendant's residence or where the defendant maintains contacts depends on the forum's overall connection to the claim.

In determining whether a jurisdiction has a real and substantial connection to the dispute, courts take into account a variety of factors, including the parties' connection to the forum, where the witnesses are located, where the dispute arose and where the substance of the dispute is located. However, Canadian courts take a considered interest in protecting the legal rights of their residents and therefore will afford an injured plaintiff generous access to courts in the plaintiff's home jurisdiction to recover its damages. Thus, if the defendant has engaged in any activity within the jurisdiction, regardless of whether the conduct relates to the plaintiff's claim, Canadian courts will be likely to assume jurisdiction over the defendant.

In this regard, Canadian courts tend to take a much more plaintiff-oriented approach to jurisdiction. For instance, because damage is an essential element of any tort, if the damages complained of were suffered in the forum, the tort is deemed to have been committed in the forum, regardless of whether the actual tortious conduct occurred somewhere else. Therefore, if an Ontario resident were injured in a car accident in New York with a New York driver and then returned to Ontario where she incurred pain and suffering and received medical treatment for her injuries, an Ontario court likely would conclude it has jurisdiction over the New York driver, regardless of whether the driver had any contacts with Ontario whatsoever. Accordingly, the Canadian approach to personal jurisdiction can lead to extremely surprising results for US litigants.


The rules of discovery in the Canadian legal system are much more restrictive than the rules of discovery in the US. Unlike in the US, where information is considered discoverable as long as it is reasonably calculated to lead to the discovery of admissible evidence, to be discoverable in Canada information must be actually relevant to material facts at issue in the dispute. As a result, the volume of information exchanged between the parties quite often is significantly less than what normally would occur in the US.

Further, requests for production and interrogatories as they are used in the US are not permitted in Canada. Rather, litigants in Canada generally have only two avenues of discovery available to them — documents the opposing party voluntarily discloses and the oral examination of a representative of the opposing party. Defendants can request plaintiffs to provide more detailed facts in support of their claim before defending the action and can request copies of documents referred to in the pleadings, but these are very limited discovery tools.

After the defendant files its defense and the plaintiff files a reply (or the time to do so has expired), an affirmative duty is automatically triggered for the parties to search for and disclose all documents relevant to the matters pleaded. In other words, the parties do not exchange requests for production and do not have the right to compel the production of documents. Rather, the parties determine for themselves what documents they believe are relevant and must provide a list that describes each document.

Aside from informally requesting the production of additional documents, if a party believes the documents disclosed by the other side do not include all relevant documents, the party could bring a motion to compel further production of documents. However, in Canada, all motions must be supported by evidence. To bring a motion for further production, the moving party would have to have evidence that the other party is in possession of relevant documents that have not been produced. Depending on the circumstances, compiling sufficient evidence in that regard to support a motion can be difficult.

After documents have been exchanged, the parties have the right to depose any adverse party. If a party is a corporation, the corporation must designate a representative to be examined on behalf of the corporation. As would be the case with the deposition of a corporate representative in the US, the representative examined is required to become well informed prior to the examination regarding the corporation's information on the matters at issue. Depending on the individual's position, the representative often must prepare for the examination by talking to many others in the corporation who possess relevant information.

This is important because, in Canada, employees, fact witnesses and expert witnesses normally are not subject to examination before trial, although any fact witness can be subpoenaed to testify at trial. Because the parties are only entitled to examine one person from the opposing party, it is not uncommon for depositions to last for several days or more. However, in Ontario, for instance, examinations are limited to seven hours, absent an agreement or court order to permit more time. 

During the course of the oral examination, there may be questions the witness is unable to answer or it may become clear there are additional relevant documents that have not been produced. To resolve this problem, the party being examined will be asked to give an undertaking, or promise, to find the answer to the question or search for and produce the additional documents. The practice of requesting and giving undertakings is a very important part of the discovery process in Canada.

In addition, obtaining documents and testimony from non-parties is much more restricted. To be entitled to examine or obtain documents from a non-party, litigants must obtain leave of court and must show a compelling need for the information. Such requests are rarely granted. Accordingly, the scope of pre-trial discovery in Canada is considerably narrower than in the US. 


In most jurisdictions in Canada, documents and information provided during discovery are protected by the "implied undertaking" rule. This principle prohibits parties from using such information for any purpose beyond the conduct of the litigation. As a result, documents obtained through discovery cannot be disclosed to outside parties and the information obtained cannot be used to bring other claims against other parties in separate lawsuits. A breach of this principle is viewed as a contempt of court. However, once the information is filed with the court, used at trial, or otherwise made a matter of public record, the implied undertaking no longer applies.

As a result of the implied undertaking rule, Canadian courts might be reluctant or find it unnecessary to issue protective or confidentiality orders covering discovery documents and transcripts. In exceptional circumstances, the court may be persuaded to provide this additional protection, for example, where the documents contain trade secrets or highly proprietary and confidential information.


The process for setting a case for trial in Canada can be a much more difficult and time-consuming process than is often the case in the US. Courts in the US often issue scheduling orders that set specific deadlines for each stage of the litigation, such as when discovery must be completed, when motions for summary judgment can be brought, when expert reports must be exchanged, and a date when the case will be placed on the court's trial docket. In Canada, however, there is a great deal less direct control over the process of the litigation and courts do not issue such firm scheduling orders. In addition, because cases are not assigned to a specific judge who will handle all aspects of the case from the very beginning of the proceeding through trial, in most instances, the parties will not know who their trial judge will be until the case is actually called for trial.

Before a trial date can be obtained, the case must actually be ready for trial, meaning that all discovery has been completed, including all undertakings answered, mediation has been completed, and there are no other steps to be taken to prepare the case for trial. At that stage, any party can request that the court schedule a pre-trial conference, which will be held before a judge of the court. At the pre-trial conference, the judge will determine whether the case is ready for trial and will ask the parties whether the case can be settled. If the case does not settle at the pre-trial conference and it is ready for trial, a trial date will then be set. Because of the many steps that must be taken before obtaining a trial date, getting a case to trial can often take several years.


The right to a jury trial for litigants in civil cases in Canada is much more restricted than the constitutional rights enjoyed by litigants in the US. Although, generally speaking, courts in Canada regard the right to a jury trial in civil cases as a "substantial" right, it is not absolute. For instance, in Ontario, claims for injunctive relief, the partition of real property, foreclosure of a mortgage, specific performance, declaratory judgment and claims against municipalities are prohibited from being tried before a jury.

Moreover, even when the claims at issue are permitted to be tried before a jury, courts have broad discretion to strike the jury and proceed with a bench trial. The determination of whether to strike the jury is generally based on whether "justice will be better served" by proceeding with or without a jury. As long as the court's decision is not arbitrary or capricious, an appellate court will not second-guess the court's determination.

It is generally accepted that cases involving complex legal or factual disputes are not appropriate to be decided by a jury but rather are more appropriately decided by a judge. For instance, a case that involves scientific or medical testimony, voluminous documents, multiple parties, or a case that would require a lengthy trial may not be appropriate for a jury in many Canadian courts. Because judges have the opportunity to reflect upon the evidence at their leisure, even marginally complicated cases normally will be tried without a jury in Canada. Accordingly, given that all but the simplest of cases could be described as "complex" to at least some degree, the right to a jury trial in a civil case is far more elusive in Canada than is typically the case in the US.

Even when a jury trial is permitted, conducting a civil jury trial in Canada can be quite different from the US. For instance, although the process of conducting voir dire of a venire panel in the US can vary greatly from courtroom to courtroom, generally in Canada there is very little if any voir dire of the prospective jurors at all. Rather, the prospective jurors are selected at random from the venire. In addition, although litigants have the right to make peremptory challenges and to strike prospective jurors for cause, normally the only information available is the juror's name and occupation.


Generally speaking, courtroom proceedings in Canada tend to be somewhat more formal than what might be the case in some US courts. For instance, in most circumstances, the judges, lawyers and some court personnel all wear formal black robes and white collars. Until relatively recently, appellate court judges were addressed as "My Lord" or "My Lady." Nowadays, however, as in the US, all judges are addressed as "Your Honor." It is also common practice to bow to the court when entering and leaving the courtroom when the judge is sitting.

In addition, in court, the lawyers often refer to each other as "My Friend." And rather than say "the plaintiff argues ...," a Canadian lawyer would say "My Friend submits ...." Further, when addressing the court, lawyers are expected to sit at counsel table and normally should only stand and speak when requested to by the court.


Even though Canada and the US are close neighbors, when disputes arise that may spill over the border it would be a mistake to assume that procedural rules and substantive rights fundamental to the US legal system would necessarily apply in Canada. Although the two systems share much in common, they are also profoundly different. The matters mentioned in this article are merely examples of the many significant differences that could have an impact on litigation strategy. Understanding some of the important features of the Canadian system can go a long way to developing a winning strategy in the event a US litigant is forced to resolve a dispute in a Canadian court.

This article is featured in the 2012 LEXPERT/American Lawyer Guide to the Leading 500 Lawyers in Canada.

The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.

© Copyright 2012 McMillan LLP

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Brett G. Harrison
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions