Canada: Changing Priorities

Abstract

Is it possible to describe a typical civil case in Canada? While there is probably no such thing, one can describe, at least in broad terms, certain common features of Canadian civil litigation. A civil action in Canada would be commenced in the general jurisdiction trial court of a province or territory. These courts are the result of the superimposition of an essen tially unitary court structure on a federal system of government. The courts and their nonjudicial staff are the constitutional responsibility of the provincial governments, while the judges that preside in the courts are appointed and paid by the federal govern ment. They have original jurisdiction in virtually all matters regardless of whether the subject matter of the suit is within the legislative competence of the federal or provin cial government. The division of legislative and appointment authority complicates effective management of the courts. Once a case is initiated, there is a significant chance that it will not be opposed. One recent study found that 65 percent of initiated actions are not defended. If the action is defended there is an even greater likelihood that the case will not reach trial. For exam ple, in at least one jurisdiction, only about 4 percent of the initiated actions are tried: The litigant may encounter a variety of court-sponsored mechanisms to promote set tlement. These will probably include pretrial conferences, case management meetings, and referral to alternative dispute resolution, particularly mediation. Given the very high rate of settlement even absent these sorts of interventions, it is not surprising that the available statistics show that their main contribution is facilitating earlier rather than more settlements. If the case proceeds to trial, it will almost certainly be a trial by judge alone. Although civil jury trials are generally available, they are optional, and the option is selected in a fairly small minority of cases. Our hypothetical litigant likely will be represented by a lawyer, and there is a good possibility that the lawyer will, at least to a degree, specialize in litigation. Although all Canadian lawyers are entitled to appear in court, most civil litigation of any sophistica tion is carried on by lawyers who specialize in this area. The client's fee arrangement with the lawyer will most likely be based on an hourly rate for services rendered, although the lawyer's final bill to the client (subject, of