We’re Not In Kansas Anymore: Top 10 Differences Between Ontario and U.S. Litigation

In a world where free trade and the global economy continue to break down geopolitical barriers, U.S. companies increasingly find themselves engaged in disputes in foreign jurisdictions. For U.S. companies and counsel involved in civil litigation in Ontario, Canada, aspects of local procedure and practice may be unfamiliar. Although every case presents unique features, this article describes 10 characteristics of Ontario civil litigation that might be different from what a U.S. company or counsel might expect.

1. Jury versus judge trials: Most civil cases in Ontario, including most commercial cases, are tried before a judge without a jury.
    
2. Costs: Ontario is a cost-shifting or "loser pays" jurisdiction. A prevailing party is generally entitled to recover a portion of its legal costs, including fees and disbursements, from the unsuccessful party. The proportion of actual costs that are recoverable depends on the circumstances of the particular case. Absent unusual circumstances, "partial indemnity" awards in the range of 25% to 50% of actual costs are not uncommon.
    
3. Summary judgment: Although Ontario’s summary judgment rule was amended in 2010 – ostensibly to make the summary judgment process more robust – it remains more difficult to get a case or issue resolved by summary judgment in Ontario than in some U.S. jurisdictions.
    
4. Pleadings: The nomenclature used for pleadings in Ontario is different from that commonly used in the United States. Actions are commenced by way of a "statement of claim" (sometimes preceded by a "notice of action"). Applications (proceedings that culminate in a hearing on a paper record, rather than a trial) are commenced by way of a "notice of application." The defendant in an action files a "statement of defence" (sometimes preceded by a "notice of intent to defend"); the respondent in an application files a "notice of appearance." Statements of defence tend to differ from U.S.-style "answers" in that they often set forth the defendant’s position on material facts and legal issues in some detail, rather than simply responding to the plaintiff’s pleading on a paragraph-by-paragraph basis.
    
5. Document discovery: In Ontario, a party has an affirmative obligation to produce all documents, including electronic documents, that are relevant to the issues raised in the pleadings, subject to the principle of "proportionality." There is no exchange of written requests for production. Relevant documents must be disclosed in an "affidavit of documents," in which the deponent (in the case of a corporate party, an officer, director or employee) swears that a diligent search of the company’s records has been made and that the affidavit discloses all relevant documents in the company’s possession, control or power.
    
6. Oral discovery: Ontario "examinations for discovery" differ in various ways from U.S. depositions. As a general rule, in Ontario a party seeking to examine a corporate party is entitled to examine only one representative of the company. A corporate representative is obliged to inform himself or herself with regard to the company’s information on relevant issues. Counsel defending an examination for discovery may answer a question on behalf of his or her client unless the examining lawyer objects. Defending counsel may object to questions on grounds of relevance or privilege, and those questions can be "refused" and not answered during the examination. A party being examined may "undertake" to provide an answer at a later date – usually in writing – to a question that the witness cannot answer during the examination. Defending counsel sometimes take questions "under advisement," which means that they will consider whether or not to answer the question by way of undertaking. A party may bring a "refusals motion" to compel an answer to a question that a party refused to answer or may instead choose to rely on the refusal. The effect of a refusal is that information that a party refuses to provide in discovery cannot be led as evidence at trial, absent leave of the trial judge.
    
7. Expert discovery: Ontario procedure does not allow for expert depositions. However, an expert who serves an affidavit on a motion may be cross-examined outside court on that affidavit.
    
8. Discovery from non-parties: The ability to obtain documents and testimonial evidence from non-parties to a proceeding is relatively limited in Ontario. A party seeking such discovery must obtain a court order. To obtain an order requiring a non-party to produce documents, the party seeking production must establish that the documents are relevant to a material issue in the action and that it would be unfair to require it to proceed to trial without the documents. To obtain an order allowing for a non-party to be examined, the party seeking the examination must satisfy the court that it has been otherwise unable to obtain the information; that it would be unfair to require it to go to trial without having the opportunity to examine the non-party; and that the discovery being sought will not unduly delay the trial, cause unreasonable expense to other parties or result in unfairness to the non-party whose evidence is being sought.
    
9. Motions to strike/dismiss: Ontario procedure provides for motions to strike a pleading and/or to dismiss an action on the ground (among others) that the pleading discloses no reasonable cause of action or defence or that the action is frivolous, vexatious or otherwise an abuse of process of the court. Evidence is not admissible on such a motion, and the court must assume that the facts alleged in the pleading at issue are true.
    
10. Court attire: At many (although not all) civil court appearances, counsel are required to gown. Counsel in Ontario do not wear wigs.

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