Evidentiary issues and damages

Pretrial discovery and disclosure

What is the nature and extent of pretrial preservation and disclosure of documents and other evidence? Are there any avenues for pretrial discovery?

Discovery in Canada consists of both documentary discovery and oral depositions. There is an obligation to preserve and produce records relevant to the issues in the litigation and e-discovery is also applicable. There is equally an obligation to preserve the product in issue in its unaltered post-incident state. While the law on spoliation of evidence in Canada continues to develop, most courts have held that for spoliation to apply, the missing evidence must be relevant, have been destroyed intentionally at a time when litigation must have been ongoing or contemplated, and that it must be reasonable to infer that the evidence was destroyed to affect the outcome of the litigation.

Generally, litigants must produce records following the exchange of pleadings in the action. Discovery obligations in Canada are broad and parties are therefore required to produce all relevant documents subject to the limitations set out below. In most Canadian provinces, parties are obliged to deliver a sworn affidavit of documents listing all relevant documents in the party’s possession, control or power. The documents are listed in three categories – those which are producible, those which are protected by any form of privilege (and therefore not producible) and those which would be producible but which are no longer within the party’s possession, control or power. Parties can try to agree on the scope of production to narrow the issues in the litigation and ensure that production obligations are proportional to the claim.

The obligation to produce relevant documents is continuous and, therefore, includes any relevant documents that are obtained after parties have already produced their respective affidavits of documents.

Following the exchange of documentary productions, parties must make themselves available for oral examinations by the opposing party. The examinations are conducted under oath. In general, only one representative of each named party is examined. That representative must inform himself or herself of the issues in the litigation. If the representative is unable to respond to specific questions being posed, he or she may provide an undertaking to make inquiries and provide answers, usually in writing, subsequent to the oral examination. Questions can also be refused or taken under advisement, which is treated as a refusal unless it is subsequently answered. If a party refuses to answer a proper question, or fails to fulfil an undertaking given at discovery, the other party can make a motion to compel the other party to respond. Parties can suffer sanctions if they refuse to answer proper questions. For example, in Ontario a party’s pleading can be struck entirely.

In most provinces, parties are permitted to seek an order from the court to allow the examination of a non-party to the action who would have relevant and necessary evidence.


How is evidence presented in the courtroom and how is the evidence cross-examined by the opposing party?

Evidence can be presented in the courtroom in two ways in Canada, either orally or by way of affdavit evidence. The manner by which evidence is adduced will depend on the type of proceedings. For trials, evidence is presented by way of oral testimony. Some types of proceedings, such as motions brought in the course of litigation, are argued on affdavit evidence (known as a ‘paper record’).

At trial, all witnesses provide oral testimony before a judge (and, if it is a jury trial, to the jury as well). Witnesses are examined in chief and then cross-examined by the opposing party. Where appropriate, the party calling the witness can re-examine the witness to address new issues raised in the cross-examination. In rare cases, and subject to leave of the court, evidence of a dying witness may be taken before trial and evidence of foreign witnesses may be taken by letters of request. The circumstances under which such leave will be granted are limited and may include issues relating to convenience of the parties, unavailability of the witness for the trial or the expense of, or inability to, bring a particular witness to trial. Evidence may also be delivered at trial by reading in testimony from the oral examinations taken before trial during the discovery phase. For proceedings heard on ‘paper records’, cross-examinations take place outside of court. The transcripts of such cross-examinations are usually filed as part of the record before the decision-maker.

Expert evidence

May the court appoint experts? May the parties influence the appointment and may they present the evidence of experts they selected?

Regardless of the type of proceeding, expert witnesses generally prepare written reports setting out their opinion. In the case of trials, this report is served prior to the commencement of the trial. In the case of ‘paper record’ proceedings, this report is usually appended to an affidavit from the expert and filed as part of the proceeding (and the expert is cross-examined out of court in the same manner as a lay witness).

At trial, experts will usually be called to give oral testimony on the evidence and issues addressed in the expert report. The expert must be qualified to give the opinions expressed in the expert report and, unless the parties agree to the qualifications of the expert, must first be examined and cross-examined on his or her qualifications. A ruling will then be made by the court with respect to the expert’s qualifications in a particular subject area. The expert will be subject to cross-examination by opposing counsel. In limited cases, and with the leave of the trial judge, expert evidence may be presented by affidavit.

When expert evidence is filed as part of a ‘paper record’, the issue of qualification of the expert is not formally dealt with by way of a preliminary ruling by the court. Rather, the evidence is filed as part of the record, and any determinations with respect to the qualifications of the expert are dealt with by the court in its decision.

Although courts may appoint their own experts to provide advice to the judge as trier of fact, this rarely happens. The parties may also agree to appoint a mutually selected expert to assist the court in understanding the issues in the litigation by investigating and reporting on any question of fact or opinion relevant to an issue in the action.

Compensatory damages

What types of compensatory damages are available to product liability claimants and what limitations apply?

The intention of the tort damages regime in Canada is to place claimants in the position they would have been in but for the injury sustained as a result of the product.

Product liability claimants who have suffered an injury may seek to assert claims for damages for pain and suffering (ie, general damages). Claimants may also seek damages for specific pecuniary losses sustained (ie, special damages) as well as losses expected to be sustained in the future. Claimants also typically assert claims for financial losses including loss of income (both past and future), loss of opportunity, loss of profits, cost of medications, medical treatment, care expenses and property damage. Damages for purely economic losses, however, are typically not recoverable.

The claims for non-pecuniary damages in cases of personal injury will include an amount to compensate for the pain and suffering sustained by the plaintiff, loss of amenities of life and loss of expectation of life. General damages claims are capped at C$100,000 (adjusted for inflation). With inflation, the present value of a catastrophic claim is in the order of C$375,000.

Most jurisdictions provide a statutory cause of action for family members of injured or deceased plaintiffs.

Non-compensatory damages

Are punitive, exemplary, moral or other non-compensatory damages available to product liability claimants?

Punitive damages are available where the court finds the defendant’s conduct to be sufficiently reprehensible. Such awards in Canada tend to be modest: in the tens of thousands, rather than in the millions. That said, in 2015 a Quebec judge ordered three cigarette companies to pay C$15 billion to smokers in that province. That judgment was subsequently upheld by the Quebec Court of Appeal.

Other forms of relief

May a court issue interim and permanent injunctions in product liability cases? What other forms of non-monetary relief are available?

Canadian courts are able to order interim and permanent injunctions in appropriate cases. The test for an interim injunction pending trial requires the plaintiff to show a serious issue to be tried, irreparable harm that will be suffered if the injunction is not granted, and that the balance of convenience favours granting an injunction. Permanent injunctions may also be granted following a final determination of the case on the merits. Typically, the plaintiff must demonstrate that there are no adequate alternative remedies, such as damages. Since product liability claims are claims for damages in nearly all cases, this form of relief is rarely sought.