CANADA Law and Practice Contributed by: Craig Ferris KC, Marko Vesely, Shannon Hayes and Codie Chisholm, Lawson Lundell LLP
1. General 1.1 General Characteristics of the Legal System In nine provinces and the three territories of Canada, the English common law system pre- vails, while the province of Quebec adopted the French civil law system. Canada’s legal land- scape is also influenced by Aboriginal and treaty rights. Canada is a parliamentary democracy based upon the British Westminster style of govern- ment. Canada has two constitutional docu- ments: the Constitution Act, 1867 and the Con- stitution Act, 1982. The Constitution Act, 1867 is the foundational document of Canada and con- tains the division of legislative powers between the levels of government. The Constitution Act, 1982 contains the Charter of Rights and Free- doms. Canada has two levels of government: the fed- eral government and provincial (or territorial) governments. Each level may pass statutes and regulations within their jurisdictional limits. The provincial government has also delegated authority to municipal governments to make their own laws of a local nature. Since the common law system is the most prev- alent legal system in Canada, the discussion regarding litigation practices and procedures will focus on the common law jurisdictions. The Canadian common law system follows the adversarial model of adjudication. At first instance, both sides present their evidence and arguments to an impartial judge who decides the issues. Appeals are heard before a panel of judges and are typically limited to the record of the lower court.
1.2 Court System The Canadian court system consists of two divi- sions: • the federal courts, which have jurisdiction over certain limited subject matters such as immigration, tax, military matters, and intel- lectual property; and • the provincial courts, which may have sev- eral trial levels, including superior courts and provincial courts. The superior courts have inherent jurisdiction and hear the vast major- ity of disputes in Canada including commer- cial, criminal, and family matters. Provincial courts have limits on the types of commercial matters heard or relief given. Both systems also have appellate courts. The Supreme Court of Canada is the highest court in Canada and the court of last resort in both systems. Appeals of commercial matters are generally only permitted with leave and usu- ally involve an issue of national importance. The superior and appellate courts also have jurisdiction over administrative boards and tri- bunals either by way of statutory appeal or judi- cial review. The discussion in this guide will focus on supe- rior court practice and, where requested, pro- vincial appellate courts, as most commercial matters in Canada are litigated in these courts. Access to justice is a real concern in Canada. Commercial litigation may take anywhere from a few years to over a decade to resolve. 1.3 Court Filings and Proceedings The open court principle is a central feature of Canadian liberal democracy and is protected by
223 CHAMBERS.COM
Powered by FlippingBook