Civil Procedure | The Canadian Encyclopedia


Civil Procedure

Civil procedure, the body of law concerning the prescribed methods of resolving disputes through litigation (see Civil Law). "Civil" distinguishes this body of law from criminal procedure, which concerns the methods of prosecuting criminal offences.

Civil Procedure

Civil procedure, the body of law concerning the prescribed methods of resolving disputes through litigation (see Civil Law). "Civil" distinguishes this body of law from criminal procedure, which concerns the methods of prosecuting criminal offences. The subject matter of civil procedure includes the organization and jurisdiction of courts competent to dispose of civil suits, the conduct of actions from their institution through trial and to judgement, the conduct of appellate litigation, and the enforcement of judgements and judicial orders.

The law of evidence, which is germane to civil procedure, governs the admissibility and weight of proof adduced in the course of a trial. The study of civil procedure also extends to problems such as the advisability, cost of and alternatives to litigation, whether litigants are eligible for legal aid, and the duties of the legal profession in the conduct of litigation.

In the same way as rules of commercial law by their configuration and soundness affect the course and volume of business, rules of civil procedure affect the administration and the quality of civil justice. They determine, among other important questions, when and how citizens can have their "day in court."

Legislative Authority

Constitutionally, the primary responsibility for the administration of justice lies with the provinces and therefore most of the legislation pertaining to civil procedure emanates from provincial legislatures. However, under a special provision of the Constitution Act, 1867, 2 of Canada's existing courts were created by Acts of Parliament: the Supreme Court of Canada (the highest appellate court in the country), created in 1875, and the Federal Court, a court created in 1971 for the better administration of federal law. The statutes establishing these courts also specify the main features of their procedure.

The Reform and Future of Civil Procedure

In the last 20 years efforts have been made in most provinces to modernize and improve the law of civil procedure. A growing concern with the costs and delays of civil litigation and with the poor accessibility of the courts led to the creation and improvement of legal-aid schemes, Small Claims Courts, class-action procedures, and methods of alternative dispute resolution such as mediation in family law.

During the same period, the need for the simplification and rationalization of civil procedure led to the appearance of reforming bodies in many provinces - some of which extensively revised local rules of practice. Procedural reforms must strike a delicate balance between form and substance.

On the one hand, procedural law should be the servant of substantive law: parties to litigation ought to be heard expeditiously on the merits of their claims and should not be forced into a debate on the manner in which their claims must be presented or heard.

On the other hand, a body of procedural rules, the enforcement of which inevitably generates side issues, is essential to the achievement of justice: in a process of adjudication that defines itself as adversarial, what a court decides depends very much on how it is presented with the issues, which in turn depend on how procedural rules assist the parties in preparing their case.

Sources and History

In common-law provinces (ie, all provinces except Québec), the legal rules forming the core of civil procedure are contained in statutes, such as the Judicature Acts, or Rules of Practice, or Rules of Court. These Acts, inspired by English legislation, unified the courts of common law and the courts of equity. They made possible the collection into Rules of Practice of numerous and technical rules of procedure, most of which had been made by judges on a case-by-case basis. Today, judges still participate in making these rules.

In the courts created by Parliament, detailed and often complex rules of practice also regulate most aspects of practice and procedure. In Québec the Code of Civil Procedure, an Act containing over 2000 articles, codifies most of the procedural rules and fulfils a similar function to rules of practice with which it shares many characteristics. Its origins can be traced to the French Ordonnance de la Procédure of 1667. Judicial precedents are another important source of law in civil procedure, primarily in the common-law provinces.

The Process of Civil Litigation

Throughout Canada the systems of civil procedure are adversarial in nature, designed to ensure opposing parties access to information necessary for the preparation of their case and to offer them an opportunity to argue against each other in court. Typically, individuals who believe they have suffered an infringement of their rights will consult a lawyer about the costs and risks of a suit. If it is decided to commence an action, the choice of the appropriate court will be the first procedural question considered by the lawyer. The answer depends on the nature of the case, the amount of the claim and on territorial considerations.

There are several levels of trial courts in most provinces of Canada (see Courts of Law), and within a province some of these courts are subdivided according to the territorial limits of counties or judicial districts. Once the choice is made, the lawyer representing the party who sues (the plaintiff) will attend the office of the court to have issued against the party being sued (the defendant) a document called a petition (or summons, statement of claim, writ of summons).

In most cases the writ will be delivered (served) to the defendant in person by a bailiff. The document will inform the defendant of the nature of the claim against him and explain that if he does not appear and defend the action against him, the plaintiff may obtain judgement by default against the defendant.

After service, each party in turn will give details of the claim or the defence or rebuttals of the opponent's claim in written pleadings (a statement of claim or declaration, sometimes already served with the original document, a statement of defence, an answer and a reply).

The pleadings, served on the other party and filed with the court, will assist the plaintiff and defendant in determining the precise issues between them. The parties will also benefit from several "discovery procedures" (Examination for Discovery, disclosure or discovery of documents, medical examination, etc) designed to facilitate the gathering of relevant information and the joining of issues.

If the parties cannot agree on a settlement out of court, they will proceed to trial. Because of the backlog of cases awaiting trial, months and sometimes years will elapse between the institution of the suit and the actual trial. The trial will take place either before a judge sitting alone or before a judge and a jury. In Québec all civil trials are heard by judges sitting alone.

At the trial each party will be entitled to lead (present) evidence, usually by live witnesses or by documents. Every witness called and examined by a party can be cross-examined by the other party. At this stage of the case, the rules of evidence are crucial. The parties then, through their lawyers, present closing arguments on the facts and the law of the case. The judge commonly renders judgement after preparing written reasons.

Where there is a jury, however, the jury delivers a verdict on the issues of fact at the end of the trial and the judge renders judgement accordingly. When the defendant has failed to appear or to defend the action or where the plaintiff has failed to proceed with the action, judgement can be obtained summarily, without a trial. After judgement, the losing party may choose to appeal. Depending on the nature of the case and the amount in dispute, he may do so as of right or with the permission (leave) of the court of appeal.

There is a court of appeal for each Canadian jurisdiction, provincial or federal. Appellate litigation is usually confined to questions of law. No new evidence is led by the parties, who must rely on a record of the evidence presented at trial. With written arguments ("factums") and later orally, the appellant and the respondent will respectively argue against and in favour of the judgement appealed. The court of appeal may confirm, vary or reverse the trial judgement, or order a new trial.

In some cases the party who loses on appeal will bring a second appeal to the Supreme Court of Canada, the judgement of which is not subject to a further appeal. The final judgement in the case (either by an appellate court or by the trial court if no appeal is brought) will dismiss the action, or maintain it in whole or in part. The costs of the action will usually be awarded to the winning party, who will recover them from the losing party. These costs usually amount to a mere fraction of the total expenses and normally do not include all the lawyers' professional fees.

The rules of civil procedure also provide for the compulsory enforcement of judgements in the event that the party against whom judgement was rendered fails to comply with the order of the court. The seizure and sale of property and the garnishment of moneys owed are among the measures available for this purpose. Sometimes a disobedient party may even be jailed.

Further Reading