CANADA Law and Practice Contributed by: Craig Ferris, Marko Vesely, Shannon Hayes and Catherine Whitehead, Lawson Lundell LLP
7.6 Extent to Which Hearings Are Open to the Public The default rule is that court proceedings are open to the public, and the public may search and obtain cop- ies of the court record and transcripts of proceedings. Commercial matters will largely rely on common law to obtain court access restrictions. Under this test, a party may be able to obtain an order to seal the record or close the proceedings to the public. These are dis- cretionary orders that require evidence of potential harm to an interest, and the scope of the court access restriction must be proportional to potential harm and impact the court openness principle. See 1.3 Court Filings and Proceedings . 7.7 Level of Intervention by a Judge The common law court system is adversarial, mean- ing that the parties prepare and present their case as they see fit. However, this does not mean that a judge must be a passive listener or “sphinx”. A judge may, and sometimes must, ask witnesses questions, interrupt them in their testimony and, if necessary, call them to order. But the judge must not usurp the role of competent counsel or “enter the fray”, as that gives rise to an appearance of partiality. Whether a judgment will be given orally or reserved and issued in writing later is up to the judge, although the parties may request a transcript of the oral reasons. Decisions on interim applications may be issued oral- ly, particularly if they are on urgent matters, while trial decisions of commercial matters will likely be reserved with written reasons issued weeks or months later. 7.8 General Timeframes for Proceedings Where a matter proceeds through a less complex pro- cedure (referred to as a petition or originating appli- cation, as described in 3.4 Initial Complaint ), it may take a few months or a few years to resolve. Where the matter proceeds as an action with a statement of claim or notice of civil claim, the action will most likely take much longer to reach trial. The procedural timeframes and trial duration will depend on the complexity of the matter, the degree of co-operation between the parties and court availability to hear applications or book trial dates. Given concerns
a jury notice or obtaining leave of the court. Jury trials for commercial cases are rare in Canada. 7.4 Rules That Govern Admission of Evidence The rules of evidence are governed by both statute and common law. At common law, evidence is admis- sible if it is logically relevant to one or more issues and is not covered by a rule of exclusion. Additionally, the court may exclude evidence if the prejudicial value outweighs its probative effect. The statutory regimes may provide for specific rules, such as those related to business records, or over- ride common law principles on certain issues such as competency and compellability. 7.5 Expert Testimony Generally, a party must comply with the formal requirements, as well as any service deadlines, for the exchange of expert evidence prescribed by the rules of procedure. Additionally, if a party objects to the admissibility of that expert evidence, it must comply with any notice obligations. When the expert is called at trial, the court will under- take a two-step analysis to determine whether the expert opinion is admissible. • At the first step, the expert evidence must meet four threshold requirements. It must: (a) be relevant; (b) be necessary to assist the trier of fact; (c) not fall under any other exclusionary rule pro- hibiting its admissibility; and (d) be presented by a properly qualified expert. Evidence that does not meet these threshold requirements will be excluded. • At the second “gate-keeping step”, the court con- ducts a cost-benefit analysis to balance the poten- tial risks and benefits of admitting the evidence to decide whether the potential benefits justify the risks. The expert evidence may be rejected if its prejudicial effect on the conduct of the trial out- weighs its probative value. In some jurisdictions in Canada, the court may appoint an independent expert, although this is rare.
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