CANADA Law and Practice Contributed by: Craig Ferris KC, Marko Vesely, Shannon Hayes and Codie Chisholm, Lawson Lundell LLP
as set out in the applicable rules of procedure, the plaintiff or moving party may rely upon the default judgment procedure to obtain a judg- ment. This is typically a written procedure that requires the filing of minimal evidence in accord- ance 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, however, may result in default judgment. Where claims are not subject to default judgment procedure, the plaintiff or moving party may resort to the summary judg- ment procedure. This will require more detailed evidence and may 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 the country. All class actions must be cer- tified 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 persons; • the claims of the prospective class raise a common issue; • a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues; and • there is a representative plaintiff. The means of determining whether class pro- ceedings would be preferable differs by prov- ince. In some provinces, the relevant class action statutes outline factors to consider, while in others, the court requires that a class pro- ceeding be, at minimum, “superior to all reason-
ably available means of determining entitlement of the class members to relief or addressing the impugned conduct of the defendant”. The rules of procedure in each jurisdiction in Canada may also permit a representative action if there is a common interest among numerous persons in the subject matter of the claim. Rep- resentative actions are not common. 3.8 Requirements for Cost Estimate There are no legal requirements to provide a cost estimate 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 that 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 that only “fair and reasonable” 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 produc- tion orders and directions to answer ques- tions objected to during examinations; • interim relief, such as interim or interlocutory injunctions pending trial; and • final relief, such as summary judgment.
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