CANADA Law and Practice Contributed by: Craig Ferris KC, Marko Vesely, Shannon Hayes and Codie Chisholm, Lawson Lundell LLP
4.5 Applications for Security for Defendant’s Costs
in a timely matter, particularly if a decision is needed before a closing or enforcement date.
The availability of security for costs depends on the jurisdiction in Canada. The test that the court will apply may vary, but it will typically include the consideration of a variety of factors such as the merits of the issues; the ability of the responding party to pay; the ability to enforce against assets in the jurisdiction; and prejudice. 4.6 Costs of Interim Applications/ Motions The default rules for how the costs of an interim application are treated will depend on the juris- diction in Canada. Some jurisdictions provide that the successful party is entitled to costs of the interim application unless the court orders otherwise, while in other jurisdictions, the costs of interim applications are addressed after trial or upon further direction of the court. The court has wide discretion regarding costs, including determinations of when any amounts are payable and the amount owed. The rules of procedure may also have a schedule of amounts that apply to certain steps unless the court orders otherwise or permits the review of costs by an assessment officer in accordance with certain rules or manuals. 4.7 Application/Motion Timeframe For commercial matters, there are no legal requirements for when a judge must issue a deci- sion on an application, even if the application is made on an urgent basis. Some jurisdictions in Canada have specialised commercial courts to hear urgent matters, such as bankruptcy and insolvency applications, injunctions or matters under the business corporations legislation. The scheduling and administration of these courts typically allows for a judge to reach a decision
5. Discovery 5.1 Discovery and Civil Cases
Discovery involves both the production of rel- evant documents and the examination of enu- merated classes of witnesses either in person or through written interrogatories. Discovery is administered by the parties, although resort to the courts may be necessary to settle disputes regarding the timing or scope of disclosure and objections to questions asked during examination or requests for undertaking to produce further documents or information. The relevancy of documents and questions to the matters at issue is a guiding factor related to the scope of discovery. Materiality may also be another guiding factor regarding the scope. Parties are also expected to manage litigation in a manner that is proportionate to the amount involved, the importance of the issues and the complexity of the proceedings. Besides obtaining court orders regarding the scope of discovery or agreement amongst the parties, there are no express mechanisms to constrain the costs of this procedural step. 5.2 Discovery and Third Parties The ability of a party to examine third parties will depend on the rules of procedure in the jurisdiction in Canada. In some jurisdictions in Canada, there is an enumerated list of individu - als that may be examined as of right. This may include third parties to the proceedings, such as employees or auditors of a party. In others, a court order may be required.
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