CANADA Law and Practice Contributed by: Craig Ferris, Marko Vesely, Shannon Hayes and Catherine Whitehead, Lawson Lundell LLP
cation”, “petition” or “notice of application” may be used to commence the proceedings. The contents of these commencement documents are largely the same. The plaintiff or moving party must identify the parties, the material facts giving rise to the claim, a summary of the legal basis for the relief and the relief that they are seeking. It is possible to amend a commencement document unilaterally by the party within certain timeframes, or with leave of the court upon application and satisfying the court that the test for amendment is met. 3.5 Rules of Service In general, a commencement document must be served personally on the defendant or responding party. Typically this is done through a process server or lawyer hired by the plaintiff or moving party. The courts do not serve commencement documents on the defendant or responding party. The rules of procedure for the jurisdiction will have dif- ferent procedures for when service on the defendant or responding party is within or outside the territorial jurisdiction of the court. If personal service cannot be made, substitutional service orders may be obtained from the court for an alternative method of service. These applicants must be supported by evidence of attempts made at per- sonal service. Where service is made outside the territorial jurisdic- tion of the court, leave of the court may be required, and the factors in 3.3 Jurisdictional Requirements for a Defendant regarding the “real and substantial connection” test will apply. Where service is to be completed in a country that is a party to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, service must comply with the
rules of procedure, the plaintiff or moving party may rely upon the default judgment procedure to obtain a judgment. This is typically a written procedure that requires the filing of minimal evidence in accordance with the rules. A court officer (and not a judge) may be granted the power to enter default judgment against a party. Not all claims may result in default judgment. Where claims are not subject to default judgment proce- dure, the plaintiff or moving party may resort to the summary judgment procedure. This will require more detailed evidence and may also require the party to appear before a judge to make legal arguments and answer questions. 3.7 Representative or Collective Actions The class action legislation is largely the same across Canada. All class actions must be certified by a judge, with common issues identified for trial. All provinces are “opt-out” jurisdictions. The test for certification requires that: • the pleadings disclose a cause of action; • there is an identifiable class of two or more per- sons; • the claims of the prospective class raise a common issue; • a class proceeding would be the preferable pro- cedure for the fair and efficient resolution of the common issues; and • there is a representative plaintiff. The means of determining whether class proceed- ings would be preferable differs by province. In some provinces, the relevant class action statutes outline factors to consider, while in others, the court requires that a class proceeding be, at minimum, “superior to all reasonably available means of determining entitle- ment of the class members to relief or addressing the impugned conduct of the defendant”. The rules of procedure in each jurisdiction may also permit a representative action if there is a common interest among numerous persons in the subject mat- ter of the claim. Representative actions are not com- mon.
Convention’s requirements. 3.6 Failure to Respond
If a defendant has not provided a response within the timeframes for responding set out in the applicable
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