Prince Edward Island (PEI) has a population of approximately 157,000 people. It is Canada's smallest province measuring only 2,185 square miles, slightly smaller than the state of Delaware. Almost half of its population is centered in the city of Charlottetown and surrounding area. PEI can only be accessed via airplane, the Confederation Bridge from New Brunswick, and in the summer by ferry from Nova Scotia.

PEI's Rules of Civil Procedure are largely modeled on those of Ontario, with only a few unique differences. Accordingly, the litigation process is very similar to how it has been described for Ontario.

The Pleadings

A plaintiff will have a statement of claim issued by the registrar of the Supreme Court of Prince Edward Island. There are three sets of procedures available: small claims court (claims up to $16,000); simplified procedure (claims up to $25,000 subject to exclusions); and ordinary procedure (claims over $25,000 and those excluded from simplified procedure). The statement of claim sets out the alleged facts that would render the defendant liable at law for the plaintiff's damages. Once a statement of claim is issued, the plaintiff has 6 months to serve it on the defendant. The defendant must then file a statement of defence denying the allegations of the plaintiff and/or setting out additional or alternative facts as to why the defendant is not liable to the plaintiff. The statement of defence must be served and filed within 20 days if served in PEI, 40 days if served in another province or in the United States, or 60 days if served internationally. The defendant may also choose to counterclaim or add additional parties. Upon receipt of the statement of defence, the plaintiff may then serve a reply within 10 days. These documents are collectively called the pleadings and frame the issues for the subsequent stages of the litigation. If a jury trial is desired, then a jury notice would be filed at the close of pleadings.

The close of pleadings also triggers case management by a court administrator. Case management typically takes the form of telephone calls between counsel and the court administrator to discuss advancing the matter and any procedural issues that arise.

Limitation Period

The general limitation period is 6 years unless otherwise prescribed by statute. There are special limitation periods prescribed for a number of actions, notably injuries arising from a motor vehicle accident (2 years) and personal injury arising from negligence (2 years).

Documentary and Oral Discovery

Pursuant to the Rules of Civil Procedure, the parties must exchange affidavits of documents within 10 days of the close of pleadings; however, in practice there is rarely compliance with this rule. The timing of production of affidavits of documents is often decided by agreement through the case management process. The affidavits set out all of the documents which are relevant to the issues in the action and is divided into four schedules. Schedule A is a list of documents which are not privileged, Schedule B is a list of documents over which the party claims privilege, Schedule C is a list of those documents which may be relevant but are no longer in the control of the party swearing the affidavit, and Schedule D, which is only for simplified procedure, is a list of all witnesses with information relevant to the action.

The parties will receive copies of each other's Schedule A documents and can seek an order for production of another party's Schedule B documents if they believe privilege does not apply.

Once the parties have exchanged affidavits of documents, examination for discovery will occur. Each named party may be questioned by all opposing parties or their counsel to discover all of the facts and evidence the other party has in its possession which is not contained in its documents. They may also ask questions about the documents themselves.

In the case of corporate parties, they must make one person available for discovery but additional witnesses may be discovered either by agreement or with an order of the court.

Pre-trial

Although settlement discussions may take place throughout the litigation process, it is following discovery that they are typically most active. Settlement may be achieved by negotiation between the parties, at a pre-trial conference, at mediation, or at a settlement conference. During this phase, parties will also actively be preparing for trial which may include discovery of expert witnesses or preliminary motions.

The pre-trial conference is a court mandated process which is ostensibly for the purpose of discussing the logistics of trial but is often used in practice to discuss settlement prospects. The parties may also agree to hold a settlement conference. A settlement conference is a negotiation facilitated by a judge with the sole goal of settlement. Another option is that the parties may agree to pursue settlement by mediation. Mediation is a purely private process and is not mandatory in PEI.

Trial

Trials are heard before a justice of the Supreme Court and, if a jury notice was filed, a jury of seven members of the public. A jury's verdict does not have to be unanimous. It can be rendered by five out of seven jurors agreeing. A civil jury trial is a relative rarity, most trials are heard by a judge presiding alone. Appeals are heard by the Prince Edward Island Court of Appeal.

Originally published by RMC Guide to Litigation in Canada (2020).

Originally published December 17, 2020.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.