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Litigation

Court system

What is the structure of the civil court system?

In Ontario, there are provincially created trial courts, where cases are heard by a single judge. Above them are the Superior Courts, which are constitutionally established courts of general jurisdiction. Superior Courts often function as trial courts and hear many matters at first instance, but also exercise some appellate jurisdiction over matters heard in the provincial courts. Cases in Superior Courts are heard by a single judge.

The Court of Appeal for Ontario is the highest appellate court in the province. The Court of Appeal typically sits panels of three judges.

There is also a Federal Court of Canada and a corresponding appellate court (the Federal Court of Appeal). The jurisdiction of both courts is narrow. Those courts mainly hear claims against Canada, applications for judicial review of decisions by federal administrative bodies and claims in federally regulated areas such as admiralty law or intellectual property law.

The Supreme Court of Canada is the final appellate court in the country. Made up of nine judges, its jurisdiction is all-encompassing. The Supreme Court of Canada hears select appeals from decisions of the provincial and territorial Courts of Appeal as well as from the Federal Court of Appeal.

For complex commercial matters in the Toronto region, Ontario’s Superior Court of Justice has established a ‘Commercial List’ staffed by judges with particular experience in managing, hearing and resolving complex business disputes. Parties with cases on the Commercial List are able to access judges quickly for chambers appointments to deal with case management and scheduling issues. The Commercial List has traditionally been at the vanguard for efforts in Ontario to expedite and streamline the litigation process. Owing to the success of chambers appointments on the Commercial List, the Superior Court of Justice in the Toronto region has recently expanded the availability of such appointments more broadly beyond complex business disputes.

Judges and juries

What is the role of the judge and the jury in civil proceedings?

Most civil trials in Ontario, aside from personal injury and defamation cases, proceed before a judge alone. The judge typically plays a passive role although they can, and do, ask questions of witnesses to assist with their deliberations.

Jury trials are available in most cases. In Ontario, jury trials are not permitted if the action seeks certain types of relief, such as an injunction or mandatory order, specific performance of a contract or equitable relief. Jury trials are also not available against the Crown or municipalities in Ontario. Ontario’s Rules of Civil Procedure specify the timing for delivery of a jury notice and the process for opposing it.

For civil cases in Ontario, juries consist of six jurors. Unanimity in a verdict is not required; the agreement of five jurors on any of the questions submitted to them is sufficient.

The selection process for federally appointed judges has recently undergone reforms. Each province and territory has an independent Judicial Advisory Committee that vets judicial applicants and makes non-binding recommendations to the Minister of Justice. The Judicial Advisory Committees are instructed to take account of the Government of Canada’s emphasis on enhancing the diversity of Canada’s judiciary.

Limitation issues

What are the time limits for bringing civil claims?

Statutes of limitation vary across the provinces and depend on the cause of action. In Ontario, there is a basic two-year limitation period for most causes of action, which begins to run from the day when the claim is discovered. A claim is discoverable on the day on which a person knew or reasonably ought to have known that the injury, loss or damage occurred. In Ontario there is an ‘ultimate’ limitation period of 15 years, which runs from the date on which the act or omission on which the claim is based occurred.

Parties can agree to extend a limitation period by entering into a ‘tolling’ agreement.

Pre-action behaviour

Are there any pre-action considerations the parties should take into account?

In Ontario, there are certain types of cases where steps must be taken before an action can be commenced. For example, certain proceedings against the Crown cannot be initiated unless 60 days’ notice of a claim is given with sufficient particulars to identify the events out of which the claim arose. In addition, no action for libel in a newspaper or in a broadcast may be initiated unless a notice specifying the matter complained of is given within six weeks of the discovery of the alleged libel. Furthermore, a claim alleging misrepresentation related to a purchase of securities on the secondary market may not be commenced unless a court first grants ‘leave’, which requires the plaintiff to demonstrate that the action is brought in good faith and there is a reasonable possibility of success.

For most other civil matters, there are no formal pre-action steps that need to be taken before a proceeding is commenced.

Starting proceedings

How are civil proceedings commenced? How and when are the parties to the proceedings notified of their commencement? Do the courts have the capacity to handle their caseload?

In Ontario, civil proceedings are usually commenced by having either a statement of claim or a notice of application issued by the court. A statement of claim must be served within six months of being issued.

Personal service, or an enumerated alternative to personal service (such as when a lawyer accepts service of the process), is required for a statement of claim or notice of application. If the defendant is an individual, a copy of the pleading must be served on them personally. In the case of a corporate defendant, the pleading must be served on an officer, director, agent or a person at any place of business for the company who appears to be in control or to manage the place of business. In appropriate circumstances, for example, where a party is evading service, a court may make an order dispensing with service altogether.

Ontario’s Rules of Civil Procedure permit service outside the jurisdiction without leave of the court in certain circumstances, such as when a contract was made in Ontario. Where service outside of Ontario is not expressly authorised, a court may grant leave to serve a party outside of the jurisdiction. In the case of a state that is a party to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, the document must be served through the central authority in the contracting state or in a manner that is permitted by the Convention.

In order to address systemic delays in the justice system, there has been increasing attention paid to the need for more judicial appointments. There are also initiatives directed at modernising the court system in Ontario, for example, by allowing videoconference attendance for certain court appearances. A recent pilot project in the Superior Court of Justice allows parties to issue certain documents - including Statements of Claim - electronically without attending the court office.

Timetable

What is the typical procedure and timetable for a civil claim?

Once a statement of claim has been served, the defendant has a prescribed period of time in which to serve a statement of defence. Defendants within Ontario have 20 days. Defendants within other Canadian provinces have up to 40 days. International defendants have 60 days for their defence. A defendant is entitled to an additional 10 days to respond if they first deliver a notice of intent to defend form within the prescribed period. After the statement of defence has been served, the plaintiff has 10 days to serve any reply pleading. It is common for counsel to grant reasonable indulgences to these deadlines if one is requested and the circumstances warrant.

After pleadings close, the parties usually proceed to documentary and oral discovery. At any time after pleadings close, a party can set the matter down for trial. By setting a matter down for trial, a party is certifying that they are ready for the proceeding to be added to the trial list. Once a party sets a matter down for trial, or consents to a matter being set down for trial, they can no longer pursue discovery or motions without leave of the court.

The amount of time between when a matter is set down for trial and the scheduled trial date depends on many factors including the anticipated length of trial and the jurisdiction where the case is being heard.

A proceeding will be automatically dismissed for delay if it has not been set down for trial within five years after it was commenced unless the plaintiff can show cause why the action should not be dismissed for delay.

Case management

Can the parties control the procedure and the timetable?

Subject to the overall five-year timeline for setting a matter down for trial, parties can generally control and establish the procedure and timetable for a proceeding. If the parties are unable to agree on a procedure or a timetable for completing the steps to get to trial, a party may seek the court’s intervention to enforce the Rules of Civil Procedure or to case manage the proceeding. The availability of chambers appointments in the Superior Court of Justice is a means by which parties are able to seek the direction of the court on timetabling and scheduling matters on an as-needed basis, which is often referred to as ‘light touch’ case management.

Evidence – documents

Is there a duty to preserve documents and other evidence pending trial? Must parties share relevant documents (including those unhelpful to their case)?

In Ontario, the principle of proportionality applies to ensure that the scope of discovery is proportionate to the importance, amount at issue and complexity of the proceeding.

Discovery is generally administered by the litigants. The courts will intervene to resolve discovery disputes. In the case of documentary discovery, a party must voluntarily disclose every document in its power, possession or control that is relevant to a matter at issue in a lawsuit, whether the document is helpful to its case or not. Where privilege is not claimed over a document, the document must be produced to the other parties at their request.

Parties are required to preserve documents and other relevant evidence pending trial and there can be consequences for spoliation of evidence.

Evidence – privilege

Are any documents privileged? Would advice from an in-house lawyer (whether local or foreign) also be privileged?

There are three accepted classes of privilege in Canada: solicitor-client privilege, litigation privilege and settlement privilege. In addition to these accepted categories, the court may recognise privilege on a case-by-case basis.

Solicitor-client privilege applies to communications between a lawyer and his or her client that involve the seeking or giving of legal advice and that the parties intend to be confidential.

There is no legal distinction between external and in-house counsel. In both cases, the court will consider whether the communication was for the purpose of giving or receiving legal advice; if it was, then it is likely to be privileged.

Privilege belongs to the client, not the lawyer, and cannot be waived without the client’s consent. In the case of solicitor-client privilege, privilege is waived where the client voluntarily discloses the communication to a third party.

Litigation privilege attaches to documents or communications that are created or that take place for the dominant purpose of reasonably contemplated litigation. Litigation privilege no longer applies after the litigation comes to an end. Finally, settlement privilege applies to communications for the purpose of bringing about a settlement of ongoing or contemplated litigation.

Evidence – pretrial

Do parties exchange written evidence from witnesses and experts prior to trial?

In Ontario, parties are entitled to conduct an oral examination for discovery of adverse parties or their representatives. The rules provide that each party is entitled to seven hours of examination time. This is subject to extension either by agreement between the parties or the permission of the court. Parties involved in complex matters will often require more than seven hours for examinations for discovery.

Experts must prepare written reports setting out their opinion on the issues they have been asked to address and the reasons for their opinion, including any assumptions and research that form the basis for the opinion. These written reports must be exchanged prior to trial.

Evidence – trial

How is evidence presented at trial? Do witnesses and experts give oral evidence?

In a civil matter, the plaintiff must prove its case on a ‘balance of probabilities’ to succeed. In other words, the plaintiff must establish that its version of events is more probable than not.

Trial evidence is generally presented through witnesses’ oral testimony. Witnesses present their evidence first through direct examination and then are subject to cross-examination by the opposing party. Documentary evidence is generally introduced through witnesses who can authenticate the evidence, unless both parties consent to the document being received into evidence.

Experts must be formally ‘qualified’ by the court before their opinion evidence will be received at trial. This qualification process typically involves the parties examining (and cross-examining) proposed experts on their stated area of expertise. If an expert is qualified by the court, the expert may give his or her opinion on matters within the scope of his or her expertise and within the confines of their written report filed prior to trial. In Ontario, experts have a duty, among other things, to provide opinion evidence that is fair, objective and non-partisan. This duty prevails over any obligation the expert owes to the retaining party.

Interim remedies

What interim remedies are available?

An interlocutory injunction may be granted to protect the rights of the moving party pending final resolution of a case. The general test for an interlocutory injunction requires the moving party to satisfy three requirements:

  • there is a serious issue to be tried;
  • the moving party would suffer irreparable harm in the absence of an injunction; and
  • the balance of convenience favours an injunction.

In urgent circumstances, Canadian courts may issue interim or even ex parte injunctions. A moving party may ask for an interim injunction to protect its position pending the hearing of a motion for an interlocutory injunction. In cases of extreme urgency, an injunction may be granted ex parte (ie, without notice to the defendant) where there is such urgency that the delay necessary to provide the defendant notice might cause serious and irreparable injury to the plaintiff.

Anton Piller and Mareva orders are available in appropriate cases to preserve evidence or assets prior to trial. Courts may also order that personal or real property be preserved pending trial when it is the subject of the litigation.

Remedies

What substantive remedies are available?

Monetary awards can be awarded as compensatory damages. Damage awards generally attract both pre- and post-judgment interest.

In breach of contract cases, courts have the power to award specific performance in lieu of damages if an award of damages would be inadequate to compensate the plaintiff for its loss. For example, specific performance may be ordered for breach of a contract for the sale of a unique good or real property. For real property, specific performance is no longer granted as a matter of course by Canadian courts absent evidence that the real property is unique such that a substitute would not be readily available.

A court may issue a declaratory judgment confirming or denying the legal right of an applicant. The court has the power to issue such an order regardless of whether any consequential relief, such as damages or an injunction, is or could be claimed along with the request for a declaration.

Punitive damages are available in Canada, but they are considered an exceptional remedy. As such, punitive damages have been awarded only in very limited circumstances, and the amount of such awards has generally been modest. For example, in a 2017 case relating to the termination of an employee’s contract, an award of C$500,000 in punitive damages was made based on the ‘callous indifference’ and ‘egregious’ conduct of a company, an award that is among the higher punitive damages awards for this type of case in recent history.

Enforcement

What means of enforcement are available?

There are various tools available for enforcing monetary awards. For example, a writ of seizure and sale can be obtained and then enforced through the sheriff’s office. A judgment can also be enforced by garnishing the judgment debtor’s wages or bank accounts.

Where a party intentionally disobeys a court order, a motion can be brought to find them in contempt of court. Contempt must be established beyond a reasonable doubt as the available punishments can be serious, including imprisonment or payment of a fine.

Public access

Are court hearings held in public? Are court documents available to the public?

Openness is a fundamental principle of the court system in Canada. Court filings are typically accessible to the public. In Ontario, court filings are not electronically available and must be obtained by manual search.

The Supreme Court of Canada offers a real-time webcast of its proceedings, and briefs of legal argument prepared by the parties are typically made available on the Supreme Court’s website.

Parties may enter into confidentiality agreements to maintain confidentiality over documents and evidence; however, the court is not bound to follow the terms of a private confidentiality agreement. Generally, once evidence is filed in court, a party must satisfy a strict test to obtain a sealing order for evidence, including that such an order is necessary to prevent a serious risk to an important interest, which can include a commercial interest.

Costs

Does the court have power to order costs?

Generally speaking, the winning party is entitled to recover some but not all of its legal costs from the unsuccessful party, including attorneys’ fees and disbursements. The court retains a broad discretion to award or deny costs as it sees fit. In a 2017 decision, the Court of Appeal for Ontario confirmed that courts possess inherent jurisdiction to order a non-party to litigation to pay costs. Such an outcome is a rarity, and is reserved for exceptional cases in order to prevent misconduct amounting to an abuse of a court’s process by the non-party.

In Ontario, costs awards are typically made on a ‘partial indemnity’ basis, which represents approximately 50 to 60 per cent of actual costs. In certain circumstances, such as where one party acted improperly or where a party made a written offer to settle that was not accepted and would have been more favourable than the result obtained at trial, the court may award costs on a ‘substantial indemnity’ basis. Substantial indemnity costs awards are higher than those on the partial indemnity scale, but still do not amount to a full recovery of legal fees.

A party can obtain an order requiring the other party to pay security for costs in limited circumstances. Circumstances can include where the plaintiff is ordinarily resident outside of Ontario or where the plaintiff is a corporation with insufficient assets in Ontario to pay the costs of the defendant.

Funding arrangements

Are ‘no win, no fee’ agreements, or other types of contingency or conditional fee arrangements between lawyers and their clients, available to parties? May parties bring proceedings using third-party funding? If so, may the third party take a share of any proceeds of the claim? May a party to litigation share its risk with a third party?

Contingency fees are generally permitted across the country, subject to certain safeguards and limitations. In Ontario, these safeguards include a prohibition on contingency fee arrangements in criminal, quasi-criminal or family law matters and a requirement to ensure that all such agreements are documented in writing. Contingency fee arrangements are most often used by plaintiff’s counsel in class action and personal injury cases.

Third-party funding of litigation, in which the funder takes a portion of any recovery, is not categorically illegal; however, third-party funding arrangements will be closely scrutinised in the context of class action lawsuits. While Ontario courts have demonstrated a willingness to allow funding agreements in some class actions, they have insisted that such agreements be judicially approved.

In the context of class actions, Ontario has a statutorily established fund, known as the Class Proceedings Fund, from which funding may be sought in exchange for a levy of 10 per cent of any awards or settlements in favour of the plaintiffs, plus a return of any disbursements funded. Funding is not automatic; plaintiffs must apply for support and a committee will make a determination based on factors including an assessment of the strength of the case and the scope of the public interests involved.

Insurance

Is insurance available to cover all or part of a party’s legal costs?

Insurance can be obtained privately although it is not commonly used.

Class action

May litigants with similar claims bring a form of collective redress? In what circumstances is this permitted?

Class actions are now a major part of the legal landscape in Canada. All provinces, except Prince Edward Island, have formal class proceedings legislation.

All class proceedings legislation requires the proposed representative plaintiff to bring a motion for judicial certification of the proceeding as a class proceeding. In Ontario, the representative plaintiff must demonstrate that five criteria are met in order to achieve certification. First, the claim must disclose a cause of action, which is a low bar and does not involve a weighing of any evidence. Second, there must be an identifiable class. Third, there must be common issues. Fourth, a class action must be the preferable procedure for the resolution of the common issues. Finally, the representative plaintiff must be appropriate and able to adequately represent the interests of the class.

Most class proceedings settle if a class is certified. A recent decision of the Court of Appeal for Ontario noted that, although class actions have now been around for almost 25 years in Ontario, there have been fewer than 20 common issues trials - although it appeared to actively encourage more such trials. Settlement agreements in class proceedings require court approval. If there is no settlement, the class proceeding will eventually proceed to a common issues trial. A judgment on the common issues will bind the defendant and all class members.

Appeal

On what grounds and in what circumstances can the parties appeal? Is there a right of further appeal?

Generally, the losing party in Ontario has a right of appeal to the Court of Appeal for Ontario from a final determination made by a court of first instance, such as a trial court. In some circumstances, depending on the nature of the dispute or the particular governing statute in issue, the ability to appeal is circumscribed and it is necessary to first seek leave, or permission, to commence an appeal.

Appeals beyond the provincial courts of appeal are more limited. There are very few instances in which a litigant can appeal as of right to the Supreme Court of Canada. For most cases, leave to appeal must be granted by the Supreme Court of Canada before it will hear the appeal itself. The Supreme Court determines whether to grant leave based on whether the question is an issue of national importance or relates to law that is developing inconsistently in different jurisdictions across the country.

There is usually no right of appeal from interlocutory (non-final) decisions and the appellate court must first grant leave. Beginning in 2015, motions in Ontario for leave to appeal an interlocutory decision are determined solely by written material, without the attendance of parties or lawyers.

Foreign judgments

What procedures exist for recognition and enforcement of foreign judgments?

A party seeking to enforce a foreign judgment in Canada will typically seek enforcement from a Superior Court in the province or territory in which the defendant has assets.

To be enforceable in Canada, a foreign judgment must have been issued by a court properly exercising jurisdiction and the foreign judgment must be final and conclusive. When determining whether there was a proper exercise of jurisdiction, the Canadian court will look at whether there was a ‘real and substantial connection’ between the foreign court and the defendant or the subject matter of the foreign proceeding. The Supreme Court of Canada has confirmed that there is no need for a ‘real and substantial’ connection between the defendant or the action and the enforcing court for jurisdiction to exist in recognition and enforcement proceedings. A judgment is considered final and conclusive if it can no longer be rescinded by the issuing court. A pending appeal to another court or an unexpired time period in which to appeal will generally not affect the finality of a judgment.

Canadian courts will not enforce foreign judgments that are for penalties or taxes, or that are based on foreign public laws. Canadian courts will not, for example, enforce foreign civil or criminal contempt orders. In deciding whether or not to enforce non-monetary judgments, courts will consider additional factors, such as the territorial scope of the order, whether enforcement of the order would require the Canadian court to interpret foreign law, and whether enforcement would place a burden on Canadian judicial resources.

The most commonly recognised defences to enforcement of foreign judgments are fraud, denial of natural justice and public policy.

Claimants seeking to enforce foreign judgments in Canada need to be aware of limitation periods. The time limit to seek enforcement of foreign judgments in Canada is governed by provincial limitation statutes, which will typically begin to run on the day the claim was discovered. For enforcement of foreign money judgments, this will usually be the date the claimant knew or ought to have known that the defendant had assets in a Canadian province or territory. Once a foreign judgment has been recognised by a Canadian court, it may be enforced in the same manner as a domestic judgment, such as through seizure and sale of property.

Foreign proceedings

Are there any procedures for obtaining oral or documentary evidence for use in civil proceedings in other jurisdictions?

Foreign litigants can use letters rogatory to obtain documentary evidence or oral testimony from witnesses in Ontario. Before a court in Ontario will enforce a request from a foreign court for assistance in obtaining evidence for the foreign proceeding, the applicant must satisfy the following criteria:

  • the evidence sought is relevant;
  • the evidence sought is necessary for trial and will be adduced at trial, if admissible;
  • the evidence is not otherwise obtainable;
  • the order sought is not contrary to public policy;
  • the documents sought are identified with reasonable specificity; and
  • the order sought is not unduly burdensome, bearing in mind what the relevant witnesses would be required to do, and produce, if the action was tried in Ontario.

Arbitration

UNCITRAL Model Law

Is the arbitration law based on the UNCITRAL Model Law?

International arbitrations are governed by provincial (or, in a narrow range of cases, federal) statute, most of which have largely adopted the UNCITRAL Model Law on International Commercial Arbitration. In Ontario, international commercial arbitration law is based on the Model Law, as implemented through the province’s International Commercial Arbitration Act, 2017.

Arbitration agreements

What are the formal requirements for an enforceable arbitration agreement?

Arbitration agreements do not need to be in writing under Ontario’s Arbitration Act, 1991. The International Commercial Arbitration Act, 2017 requires that an arbitration agreement be in writing. However, an arbitration agreement will be deemed to be in writing if its content is recorded in any form, regardless of how the arbitration agreement was concluded. An arbitration that would otherwise be governed by the International Commercial Arbitration Act, 2017 but for the fact that the arbitration agreement is not in writing will be governed by the Arbitration Act, 1991.

An arbitration agreement is any agreement whereby parties agree to submit a dispute or potential dispute between them to arbitration. It can be an independent agreement or a clause in a broader agreement.

Choice of arbitrator

If the arbitration agreement and any relevant rules are silent on the matter, how many arbitrators will be appointed and how will they be appointed? Are there restrictions on the right to challenge the appointment of an arbitrator?

If the arbitration agreement does not specify the number of arbitrators then Ontario’s Arbitration Act, 1991 provides that there will be one arbitrator. It also permits a party to apply to the court to have an arbitrator appointed if the arbitration agreement does not provide for an appointment procedure or the parties have been unable to agree on an arbitrator.

If the dispute is an international commercial arbitration, the International Commercial Arbitration Act, 2017 applies. The Act provides for three arbitrators in the event the parties have not agreed to a different number.

The ability to challenge the appointment of an arbitrator is limited to challenges to the arbitrator’s qualifications, independence or impartiality.

Arbitrator options

What are the options when choosing an arbitrator or arbitrators?

Ontario benefits from a deep pool of arbitrators with commercial litigation experience. Many of the established arbitrators are former judges from all levels of the judiciary and many are senior commercial litigators, with both domestic and international experience. The quality and depth of the arbitrator pool in Ontario is sufficient to meet the needs of complex arbitration.

Arbitral procedure

Does the domestic law contain substantive requirements for the procedure to be followed?

The parties are generally free to agree on procedural requirements for the arbitration or to have the procedure left for the arbitrator to determine. Both the Arbitration Act, 1991 and the International Commercial Arbitration Act, 2017 provide general guidance on procedure for arbitral tribunals to consider, but with limited exceptions, they are not requirements.

Court intervention

On what grounds can the court intervene during an arbitration?

Courts may intervene during an arbitration, on a party’s application, for the following reasons: to appoint an arbitrator; to remove an arbitrator; to appoint a substitute arbitrator; to award interim relief; to consolidate or stay an arbitration when there are two or more arbitration proceedings; to review certain decisions by arbitrators regarding their jurisdiction; to assist the parties or the arbitrators in the taking of evidence; to set aside or overturn an arbitral award on appeal; and to recognise and enforce an arbitral award.

Parties to an arbitration may also seek the court’s direction on procedural matters and to extend time limits.

The court’s powers can be overridden to some extent by agreement, but the parties likely cannot override all of the grounds on which the court may intervene.

Interim relief

Do arbitrators have powers to grant interim relief?

Arbitrators are empowered to grant interim relief, including injunctive relief and disclosure orders, but that power is generally limited to relief directed at the parties to the arbitration and with respect to the subject matter of the dispute. Arbitrators cannot grant Mareva injunctions to preserve assets held by third parties or compel disclosure by third parties without the court’s assistance.

Award

When and in what form must the award be delivered?

The award must be in writing, must be signed by the arbitrator or arbitrators, and must state the reasons on which it is based, unless the parties have agreed otherwise. There are no default deadlines for delivering the award; however, the arbitration agreement may address the timing for delivery of an award. Typically, an arbitration award will be delivered quicker than a court judgment.

Appeal

On what grounds can an award be appealed to the court?

For international commercial arbitrations, the only recourse against an arbitral award is an application to the court to set it aside. To succeed, an applicant in Ontario must prove that:

  • a party to the arbitration agreement was under some incapacity;
  • the arbitration agreement is not valid under the law to which the parties have subjected it or if there was no choice of law in the parties’ agreement, under the law of Ontario;
  • the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present its case;
  • the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration;
  • the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties;
  • the subject matter of the dispute is not capable of settlement by arbitration under the law of Ontario; or
  • the award is contrary to public policy.

For domestic arbitrations in Ontario, the Arbitration Act, 1991 provides that a party may seek leave to appeal an arbitral award to the court on a question of law where the arbitration agreement is silent with respect to appeals on questions of law. The Arbitration Act, 1991 also permits the parties to contract in to a right to appeal without leave of the court on questions of law, fact or mixed fact and law, or to contract out of any appeal rights (including the right to seek leave to appeal).

In Ontario, appeals from applications to set aside an award, or from appeals to the court, go to the Court of Appeal for Ontario, and from there (with leave) to the Supreme Court of Canada.

Enforcement

What procedures exist for enforcement of foreign and domestic awards?

Domestic and foreign arbitration awards must be recognised and enforced through an application to the courts. An arbitral award that is recognised by the courts can be enforced in the same way as a judgment or order of the court.

Costs

Can a successful party recover its costs?

Generally, a successful party can recover at least a portion of its legal costs and the costs of the arbitration; however, the parties can agree on how costs are to be dealt with in the arbitration agreement. Unless the parties agree otherwise, the approach to awarding costs in arbitrations is generally consistent with the approach followed by the courts, as described above.

Alternative dispute resolution

Types of ADR

What types of ADR process are commonly used? Is a particular ADR process popular?

All forms of ADR - including mediation and arbitration - are widely employed in all provinces of Canada. ADR is generally viewed by litigants and the courts as a complement to Canada’s judicial system.

Requirements for ADR

Is there a requirement for the parties to litigation or arbitration to consider ADR before or during proceedings? Can the court or tribunal compel the parties to participate in an ADR process?

In some provinces, such as Ontario, mediation is a mandatory requirement for civil cases commenced in particular locations, such as Toronto. In these jurisdictions, parties must mediate their dispute before they can obtain a trial date. It is also common for judges to informally encourage the parties to mediate as the case progresses.

There is no requirement for parties to arbitrate unless they have entered into an arbitration agreement.

Miscellaneous

Interesting features

Are there any particularly interesting features of the dispute resolution system not addressed in any of the previous questions?

No.

Update and trends

Update and trends

Are there any proposals for dispute resolution reform? When will any reforms take effect? (Please also mention any ground-breaking recent cases, etc.)

Relatively recent amendments to Ontario’s Courts of Justice Act have been made to permit the prompt dismissal of tort claims brought against those who speak on matters of public interest, in appropriate circumstances. Pursuant to these amendments, a person who speaks on such matters and is sued as a result may move to dismiss the claim on showing that their communication relates to a matter of public interest, at which time the proceeding will be dismissed unless the plaintiff can show:

  • their proceeding has substantial merit;
  • there are grounds to believe that the defendant has no valid defence in the proceeding; and
  • the harm likely to be suffered by the plaintiff outweighs the public interest in protecting the expression.