Glossary of Canadian Civil Procedure Terms
Statement of Claim
A statement of claim is the originating process that commences a civil action in the superior court of a province. It is a document filed by the plaintiff that sets out the material facts upon which the claim is based, the legal basis for relief, and the remedy sought. Under Ontario’s Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”), a statement of claim must contain a concise statement of the material facts, but not the evidence by which those facts are to be proved. The claim must plead every fact that is material to the cause of action and must specifically allege fraud, malice, or breach of trust where those are relied upon. The plaintiff must issue the statement of claim (obtaining a court seal and file number) and then serve it on the defendant within the prescribed time (six months in Ontario, extendable by court order). Failure to serve within the limitation period may result in the action being statute-barred. The statement of claim frames the dispute and defines the scope of the litigation.
Statement of Defence
A statement of defence is the defendant’s formal response to the allegations in the statement of claim. It must be served within the time prescribed by the Rules (typically 20 days after service of the claim, or 40 days if served outside Ontario). The defence must admit, deny, or traverse each allegation of fact pleaded in the statement of claim; any allegation not specifically denied is deemed admitted. The defendant must plead any affirmative defences — such as limitation periods, contributory negligence, waiver, or release — and must set out any set-off or crossclaim in the defence or separately. A defendant who fails to deliver a defence within the prescribed time is noted in default, and the plaintiff may obtain judgment without further notice. The defence operates as a joinder of issue, crystallising the factual controversies requiring determination at trial.
Counterclaim
A counterclaim is a claim asserted by a defendant against the plaintiff within the same proceeding. It is a separate but related action that invites the court to grant relief against the plaintiff, including relief that the defendant could have claimed in a separate action. The counterclaim must be pleaded in the same document as the defence (a statement of defence and counterclaim) or delivered separately. The plaintiff must deliver a defence to counterclaim within the prescribed time. Where the counterclaim is unrelated to the plaintiff’s claim, the court may order that it be tried separately or struck out. A counterclaim survives even if the plaintiff’s claim is discontinued or dismissed, allowing the defendant to pursue independent relief.
Crossclaim
A crossclaim is a claim asserted by one defendant against another defendant who is a co-defendant in the same proceeding. The crossclaim must arise out of the same transaction or occurrence that is the subject of the main action, or be related to a question of contribution and indemnity between co-defendants. Common crossclaims include claims for contribution and indemnity under the Negligence Act (where co-defendants are alleged to be jointly liable) or claims for breach of warranty or breach of contract. A defendant must deliver a statement of defence to crossclaim within the prescribed period. The court has discretion to order separate trials or to strike a crossclaim that unnecessarily complicates the proceeding.
Third Party Claim
A third party claim (also called a notice of motion to a third party or a third party notice) is a mechanism by which a defendant may bring a new party — the third party — into the proceeding. The defendant claims that the third party is liable to the defendant for all or part of the plaintiff’s claim. The test for leave to issue a third party claim is whether it raises a justiciable issue between the defendant and the third party that is sufficiently connected to the main action. The third party then becomes a party to the proceeding with full procedural rights, including the right to defend the main action if the defendant fails to do so, to deliver a defence to the third party claim, and to assert a counterclaim against the defendant. The court may order separate trials or sever the third party claim if it would cause delay or prejudice to the plaintiff. The third party procedure promotes judicial economy by resolving related disputes in a single proceeding.
Examination for Discovery
Examination for discovery is the pre-trial oral questioning of a party or representative of a corporate party under oath, conducted by adverse counsel. It is a critical phase of Canadian civil litigation, serving to obtain admissions, clarify issues, assess the strength of the opposing case, and narrow the facts requiring proof at trial. Under the Rules, each party is entitled to examine any other party once, without leave of the court, for a maximum of seven hours in Ontario (exclusive of undertakings and undertakings to produce documents). The scope of questioning is broad: a party may be examined on any matter relevant to the issues in the proceeding, even if the evidence would not be admissible at trial, provided it may lead to a relevant chain of inquiry. The discovery is recorded (typically by a court reporter), and the transcript may be used at trial to impeach a witness, to introduce admissions, or as evidence if the party is dead or otherwise unavailable. Undertakings — promises to provide further information or documents — are binding and must be answered diligently.
Documentary Discovery
Documentary discovery is the process by which each party discloses to the other all relevant documents in their possession, power, or control, whether or not they are privileged. The obligation is automatic and ongoing from the commencement of the proceeding until the conclusion of the trial. “Documents” include physical and electronic records, emails, text messages, metadata, and other data compilations. The test for relevance mirrors the scope of examination for discovery: a document is discoverable if it is relevant to any matter in issue or may lead to a relevant chain of inquiry. Documents that are subject to solicitor-client privilege or litigation privilege must be disclosed but may be withheld from production on the grounds of privilege. The failure to make adequate documentary discovery may result in sanctions, including an order that the party produce the documents or that the action be dismissed. An affidavit of documents is the formal vehicle for disclosure.
Affidavit of Documents
An affidavit of documents is a sworn statement in which a party lists all relevant documents in their possession, power, or control and attests that they have conducted a reasonable search for those documents. The affidavit must be served on the opposing party. It is divided into Schedule A (documents the party relies on and is not claiming privilege over), Schedule B (documents for which the party claims privilege — with a description sufficient to allow the court to assess the claim), and Schedule C (documents the party no longer has, with an explanation of their absence). The party swearing the affidavit must certify that they understand the obligation of discovery and have fulfilled it. If the opposing party believes that disclosure is inadequate, they may move for an order requiring a further and better affidavit. The affidavit of documents is a central feature of the discovery process, ensuring transparency and facilitating the fair resolution of disputes.
Summary Judgment
Summary judgment is a procedure by which a court may dispose of all or part of a claim without a trial, where there is no genuine issue requiring a trial. The Supreme Court of Canada’s decision in Hryniak v Mauldin, 2014 SCC 7, fundamentally expanded the availability of summary judgment in Canada. The court held that summary judgment is no longer a “exceptional” remedy and that the civil justice system must provide proportionate, timely, and affordable procedures. Under the Hryniak framework, the court must first determine whether there is a genuine issue requiring a trial. If there is, the court may use the enhanced powers under the Rules — including weighing evidence, hearing oral evidence, and making factual findings — to determine whether the issue can be resolved without a trial. Summary judgment is available if the judge can reach a fair and just determination on the merits using the summary process. The responding party cannot rely on the mere possibility of missing evidence; there must be a factual foundation to suggest that a trial is necessary. Summary judgment has become a powerful tool for early disposition of claims, particularly in commercial litigation.
Mandatory Mediation
Mandatory mediation is a pre-trial dispute resolution process that parties are required to attend before they may proceed to trial. In Ontario, under Rule 24.1 of the Rules of Civil Procedure, all actions in the Toronto, Ottawa, and Windsor case management centres (and other regions where the rule is in effect) are subject to mandatory mediation. The mediation must take place within a prescribed period (typically 180 days after the first defence is filed). The parties select a mediator (or the court may appoint one), and the mediator’s fee is shared equally. The mediation session is confidential and without prejudice. The mediator may not compel a settlement, but the parties must attend and participate in good faith. If a settlement is reached, it may be incorporated into a consent order. If no settlement is reached, the mediation is certified and the action proceeds to trial. Mandatory mediation is designed to reduce the cost and delay of litigation and to encourage early resolution.
Offer to Settle
An offer to settle is a formal offer made by one party to another proposing the settlement of a proceeding on specified terms, with consequences for costs if the offer is refused. Rule 49 of Ontario’s Rules of Civil Procedure governs the regime. If a plaintiff makes an offer that the defendant does not accept, and the plaintiff obtains a judgment as favourable as or more favourable than the offer, the plaintiff is presumptively entitled to substantial indemnity costs from the date of the offer onward, rather than partial indemnity costs. Rule 49 also provides for defendant’s offers: if the defendant makes an offer that the plaintiff does not accept, and the plaintiff fails to obtain a judgment as favourable as the offer, the defendant is presumptively entitled to partial indemnity costs from the date of the offer, and the plaintiff may be denied costs they would otherwise have received. The offer must be in writing, served, and remain open for acceptance for at least 30 days (or until the start of trial, whichever is earlier). The cost consequences create a powerful incentive for parties to make and accept reasonable settlement offers.
Costs
Costs are monetary awards that require the unsuccessful party to pay a portion of the successful party’s legal fees and disbursements. The general rule in Canadian civil litigation is costs follow the event: the successful party is presumptively entitled to costs payable by the unsuccessful party. Costs are assessed on one of two scales: partial indemnity (formerly party-and-party costs), which covers approximately 50–60% of actual legal fees; and substantial indemnity (formerly solicitor-and-client costs), which covers approximately 80–90% of actual fees and is awarded only in exceptional circumstances, such as where a party has acted in bad faith, refused a reasonable offer to settle, or engaged in conduct deserving of sanction. The court has broad discretion to determine the quantum of costs, considering factors including the result of the proceeding, the amounts claimed and recovered, the complexity of the issues, the conduct of the parties, and the importance of the matter. Costs may be ordered on a lump sum basis or fixed by assessment (a hearing before an assessment officer). The purpose of costs is not to indemnify the successful party fully but to encourage settlement, discourage frivolous litigation, and promote access to justice.
Security for Costs
Security for costs is a court order requiring a plaintiff to post a monetary bond or pay money into court as security for the defendant’s potential costs. The purpose is to protect a defendant who, if successful, may be unable to recover costs from a plaintiff who is impecunious, resides outside the jurisdiction, or is a corporation with insufficient assets. Under the Rules, a defendant may move for security for costs if the plaintiff is ordinarily resident outside Ontario, has no assets in Ontario, is an impecunious corporation, or has taken steps that make it difficult to enforce a costs order. The court must be satisfied that it is just to grant the order, considering the merits of the claim, the amount of security requested, the plaintiff’s ability to post security, and whether the plaintiff’s impecuniosity is caused by the defendant’s conduct. If the plaintiff fails to post the required security, the proceeding may be stayed or dismissed. Security for costs is a discretionary remedy and is not awarded where it would effectively deny the plaintiff access to justice.
Interlocutory Injunction
An interlocutory injunction is an interim court order that restrains a party from doing a specified act or compels a party to do a specified act pending the final determination of the proceeding. The governing test is set out in RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311: the moving party must establish (1) a serious question to be tried (or a strong prima facie case where the injunction would effectively decide the matter); (2) that irreparable harm would result if the injunction were not granted (harm not compensable by damages); and (3) that the balance of convenience favours granting the injunction (assessing which party would suffer greater harm from the granting or refusal of the injunction). An undertaking as to damages is a prerequisite: the applicant must promise to compensate the respondent for any loss caused by the injunction if it is later found to have been wrongly granted. The court may also require the moving party to post security. Interlocutory injunctions are discretionary and are granted sparingly, given their drastic nature.
Garnishment
Garnishment is a statutory enforcement mechanism by which a judgment creditor (a party who has obtained a court judgment for payment) may seize money or property owed to the judgment debtor by a third party (the garnishee). The most common application is the garnishment of the judgment debtor’s wages, bank accounts, or accounts receivable. The process begins with the issuance of a notice of garnishment (or garnishee order), which is served on the garnishee. The garnishee must pay to the judgment creditor the money that would otherwise be paid to the judgment debtor, up to the amount of the judgment, subject to statutory exemptions (e.g., a portion of wages necessary for the debtor’s basic needs). Garnishment is governed by provincial legislation (e.g., Ontario’s Creditors’ Relief Act, RSO 1990, c C.45, and the Wages Act, RSO 1990, c W.1). A garnishment is continuing (periodic deductions from wages) or lump sum (seizing a specific fund). The garnishee who fails to comply may be liable to pay the judgment debt personally.
Writ of Seizure and Sale
A writ of seizure and sale (or writ of execution) is a court order directed to the sheriff authorising the seizure and sale of the judgment debtor’s property to satisfy a judgment debt. The writ is issued after the judgment creditor has obtained a judgment and the debtor has failed to pay. The sheriff has the authority to seize tangible personal property (goods, chattels, vehicles) and, in some cases, to sell real property under a writ of seizure and sale of land. The sheriff must seize property and, after a prescribed notice period, sell it by public auction. Proceeds are applied to satisfy the judgment, including enforcement costs and sheriff’s fees, with any surplus returned to the debtor. Certain property is exempt from seizure, including necessary household goods, tools of the trade, and a limited equity in the principal residence (under provincial exemption legislation). The writ may be renewed and remains in force for a prescribed period (typically six years, renewable).
Contempt of Court
Contempt of court is conduct that wilfully disobeys a court order or interferes with the due administration of justice. In the civil litigation context, contempt most commonly arises from a party’s failure to comply with a court order — for example, an order to produce documents, to attend for discovery, to pay costs, or to obey an injunction. Contempt may also arise from conduct that scandalises the court or undermines public confidence in the administration of justice. The moving party must prove contempt beyond a reasonable doubt, given its quasi-criminal character (United Nurses of Alberta v Alberta (Attorney General), [1992] 1 SCR 901). The defendant must have knowledge of the order and have intentionally disobeyed it; mere neglect or inadvertence is insufficient. Punishments for contempt include fine, imprisonment (for a fixed term or until compliance), or both, at the discretion of the court. A finding of contempt may also lead to an order for costs and the striking of pleadings. Contempt proceedings are an important tool for ensuring the authority and efficacy of court orders.
Appeal
An appeal is a proceeding in which a higher court reviews the decision of a lower court or tribunal. In Canada, civil appeals are governed by provincial appellate rules and, in the case of the Supreme Court of Canada, the Supreme Court Act, RSC 1985, c S-26. An appeal may proceed as of right (where the criteria prescribed by the appellate rules are satisfied — typically a final order disposing of all issues in the proceeding) or by leave (requiring the permission of the appellate court, which is granted only where the appeal raises an issue of general importance or there is a compelling reason to hear it). The standard of review determines the level of deference the appellate court must accord to the lower court’s decision. Questions of law are reviewed on a standard of correctness; questions of fact (or mixed fact and law where the error is not extricable) are reviewed on the deferential standard of palpable and overriding error; and questions of mixed fact and law are reviewed for palpable and overriding error (Housen v Nikolaisen, 2002 SCC 33). Discretionary decisions are reviewed for abuse of discretion. The appellate court may dismiss the appeal, allow it and substitute its own decision, order a new trial, or refer the matter back to the lower court with directions. Appeals are a matter of statute: there is no constitutional right to appeal in civil cases, though the Charter may require an effective appeal route in criminal matters.