As we have developed greater and more rapid business relationships across greater distances, there has inevitably come with this trend a larger emphasis on cross-jurisdictional litigation. While Canadian common law is fairly uniform in its basic components, there are notable elements that have slight, yet potentially critical, differences. In this discussion, we will endeavour to identify some of the most important differences specifically between civil procedure in Ontario and British Columbia.
As a starting point, it is helpful to know that the BC Supreme Court Civil Rules are very similar to the Rules of Civil Procedure in Ontario, so the vast majority of matters in BC will proceed in a similar fashion to the way they do in Ontario.
The Limitation Act governs the limitation period for commencing an action in British Columbia. Generally speaking for most causes of action, an individual has 2 years from the date the action is discovered to commence legal proceedings. The Act states that an action may not be brought "more than two years" after the claim was or should have been discovered.
Ontario has its own Limitations Act which governs limitation periods in the province. The basic limitation period is set out as being the second anniversary of the day on which the claim was discovered.
Due to this very slight difference in description, the last day to issue a claim in BC would seem to be the day before the second anniversary, whereas an action in Ontario can be brought on the second anniversary. There is no specific case law on this comparison, but it is always best to be safe and issue claims well in advance of the second anniversary of the cause of action.
Starting a Claim
In British Columbia, a claim is started with a Notice of Civil Claim being issued by the Court within the proper time limit as outlined in the Limitation Act. Once a Notice of Civil Claim has been filed, the plaintiff has to serve it on the defendants within 12 months of the date of filing.
In Ontario, actions are started through the filing of a Notice of Action or Statement of Claim and must be served within 6 months of its being issued.
Claims Under $100,000
Courts have struggled across the country to create less complex procedures for simpler civil actions that still requires greater resources than a Small Claims court can provide. This has led to a number of different approaches being taken.
British Columbia has enacted a different procedure, which they refer to as Fast Track Litigation. Any party to an action can request that the court move a matter into the fast track process if the claim seeks less than $100,000 in damages, or the trial is expected to last 3 days or less. If this process applies, examinations for discovery are limited to two hours per party, each party may only call one expert at trial, and trial costs are presumptively limited to no more than $11,000.
In Ontario, actions seeking less than $100,000 are typically required to proceed by the Simplified Procedure. Under this process, Affidavits of Documents must disclose potential witnesses, examinations for discovery are limited to two hours per party, and the Pre-Trial Conference can be held before a Master.
The Ontario process alters the Pre-Trial procedures but does not alter the trial process in any way. As such, while it may move actions to the trial list faster, it does not necessarily shorten the trial itself.
In British Columbia, within 35 days after the pleadings period, each party must prepare a List of Documents that are, or have been, in the party's possession or control, and that could, if available, be used by any party of record at trial to prove or disprove a material fact and all other documents to which the party intends to refer at trial. This List of Documents must be served on all parties of record within the 35 days after the pleadings have closed. This document must be certified by counsel only, making it much easier to update in the event that new documents are discovered.
In Ontario, all parties must agree to a written Discovery Plan which sets out the intended scope of discovery and dates for delivery of documents. It collects all documentary listings in an Affidavit of Documents, which is a much more rigid document collections process, and requires formalized amendments to update. This plan must be agreed to before the earlier of 60 days after the close of pleadings or such longer period as the parties may agree to, and attempting to obtain the evidence.
Trial Management Conferences
In British Columbia, before any action commences to trial, a Trial Management Conference must be scheduled. This must occur at least 28 days before the scheduled trial date. All counsel are required to attend and in some instances, the parties must attend as well. A Trial Brief must be filed 28 days in advance of the Trial Management Conference. Other parties must file and serve a trial brief at least 21 days before the date of the trial management conference.
In Ontario, this process is included as part of the Pre-Trial Conference, though in practice, a Pre-Trial Conference will also involve further attempts at settlement and the seeking of additional orders needed for the trial process.
In British Columbia, if at any stage of an action the parties of record jointly request a Settlement Conference by filing a requisition, then the parties must attend before a judge or master who must, in private and without hearing witnesses, explore all possibilities of settlement.
In Ontario, there is no provision for a judicial settlement conference outside of the Small Claims Court. However, actions commenced in Toronto, Windsor, and Ottawa have provisions requiring the completion of mediation before matters can be set down for trial. In any other jurisdictions in Ontario, judges will often order the parties to attend a mediation.
There have been a variety of different interpretations of summary judgment implementation at the provincial level since the landmark Supreme Court decision of Hryniak v. Mauldin.
British Columbia has a similar view of summary judgement in that they believe these applications should only be made in instances where it is clear that the other party cannot succeed because he or she has no case or defence. The main question that the court considers regarding these applications is whether there is any genuine issue between the parties that requires a trial to resolve. All evidence in support of such applications is admitted through affidavits.
British Columbia also has the mechanic of a Summary Trial. Under that process, a party may apply to the court for judgment under this rule once a defence pleading has been filed. On the hearing of a summary trial application, the court may grant judgment in favour of any party, either on an issue or generally, unless the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or the court is of the opinion that it would be unjust to decide the issues on the application.
Ontario has recently amended its rule to say that the court may grant summary judgement if it considers that there is no genuine issue requiring trial with respect to a claim or defence. This is determined on an evaluation of the totality of the facts, and gives a trier of fact the power to evaluate those facts in conjunction with the case at hand.
In practice, BC's Summary Trial process is more similar to Ontario's current Summary Judgment process, while the BC Summary Judgment process is more akin to a motion to strike a pleading in Ontario. Specifically, the BC Summary Trial is meant to expressly replace a trial with oral evidence with one involving only written evidence. The judge sits fully as a trial judge, and can make any judgments considered appropriate at trial. However, similar to the Ontario process, they may decline to render a judgment if oral evidence is considered to be required in the interests of justice.
Ontario also has a Summary Trial mechanism, but it is not a means to replace a trial, but only an alternative trial procedure. Under the Ontario Summary Trial process, a trial is conducted using affidavits as evidence in chief, and strict time limits on cross-examination of witnesses. This process can lead to considerable time savings where the facts at issue are reasonably straightforward.
As the procedures between the two provinces are reasonably similar, it is not particularly complicated for firms to take on matters in both jurisdictions. It is important to understand even the subtle differences in procedures, so that one does not appear to be outmatched or outclassed by local counsel.
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.