CANADA Law and Practice Contributed by: Craig Ferris, Marko Vesely, Shannon Hayes and Catherine Whitehead, Lawson Lundell LLP
3.8 Requirements for Cost Estimate There are no legal requirements to provide a cost esti- mate for litigation at the outset of a matter, although a firm may provide a suggested budget and offer certain types of work on a piecemeal basis, such as legal research, for a fixed fee negotiated in advance with the client. A firm’s retainer agreement will specify the hourly rates and other fees that may be charged for legal work, and for certain steps, a client’s consent to perform the work will be obtained in advance. The amounts that may be charged for legal work are also governed by legal ethics for lawyers, such that only “fair and rea- sonable” amounts will be charged for their services. 4. Pre-Trial Proceedings 4.1 Interim Applications/Motions The rules of procedure permit applications before trial to obtain the following relief: • procedural relief, such as document production orders and directions to answer questions objected to during examinations; • interim relief, such as interim or interlocutory injunctions pending trial; and • final relief, such as summary judgment. 4.2 Early Judgment Applications The rules of procedure contain procedures: • for summary judgment or summary dismissal on one or more issues; and • to strike all or part of a claim or defence. There is usually no set timing for when these applica- tions must be brought before trial. For summary judgment or summary dismissal, the moving party will be required to file and serve the application as well as any supporting evidence. The responding party will then be required to file their evi- dence and perhaps a written response to the applica- tion, depending on the jurisdiction. For applications to strike, usually only the application materials are filed. Evidence is not typically considered.
Under both procedures, the parties may need to arrange a special hearing with the court and file and serve written legal arguments. For summary judgment applications, the civil burden of proof applies (balance of probabilities). For appli- cations to strike, different legal standards may apply depending on the grounds. If there is no reasonable cause of action or defence alleged, the court will consider whether the claim or defence is hopeless or bound to fail. If the grounds are that the claim is vexatious, frivolous or an abuse of process, the court will make that specific legal determination. Procedures for summary trials of one or more issues may also exist. Those applications might have time limits for when they must be brought before trial. 4.3 Dispositive Motions The most common forms of dispositive applications made before trial are default judgments, summary judgments, and summary dismissals and striking applications. A default judgment is obtained when the defendant does not file a statement of defence or response to the claim within the applicable timeframe. Summary judgment or summary dismissal is obtained where there is no claim or defence to a claim. An order strik- ing all or part of a claim or defence is obtained where there is no reasonable claim or defence pleading, or the pleadings are vexatious, frivolous or an abuse of process. 4.4 Requirements for Interested Parties to Join a Lawsuit If a person is a proper or necessary party to the pro- ceeding, they may be added by the plaintiff if the time- frame for adding a new party has not expired. If the timeframe has expired, leave of the court is required to add a new party. A court will consider various factors in determining whether a new party should be added to existing pro- ceedings, including the existence of any prejudice, whether the request seeks to add a defendant after a limitation period has expired for claims against it, and the factual nexus between the existing claims and any
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