CANADA Law and Practice Contributed by: Craig Ferris KC, Marko Vesely, Shannon Hayes and Codie Chisholm, Lawson Lundell LLP
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 applications must be brought in the proceedings before trial. For summary judgment or summary dismissal, the moving party will be required to file and serve the application as well as any support- ing evidence. The responding party will then be required to file their evidence and perhaps a writ- ten response to the application, depending on the jurisdiction in Canada. 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 applications for summary judgment, the civil burden of proof applies (balance of prob- abilities). For applications 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 applica- tions made before trial are default judgments, summary judgments or 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 dis- missal is obtained where there is no claim or defence to a claim. An order striking 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 proceeding, they may be added by the plaintiff if the timeframe for adding a new party has not expired. If the timeframe has expired, then leave of the court is required to add a new party. A court will consider a variety of factors in deter- mining whether a new party should be added to existing proceedings 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 new claims. If a party is to be added as a plaintiff, the new party must consent. A person called an “intervenor” may also be added to proceedings with leave of the court. They are not necessary for the adjudication of the issues, but the court may allow them to par- ticipate on terms if they may be of assistance to the court in adjudicating the issues.
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