CANADA Law and Practice Contributed by: Craig Ferris KC, Marko Vesely, Shannon Hayes and Codie Chisholm, Lawson Lundell LLP
7. Trials and Hearings 7.1 Trial Proceedings
court co-ordinator for two hours or more of court time. The parties are largely responsible for comply- ing with the deadlines contained in the rules of procedure for the applicable steps leading up to the trial. However, the parties may consent to or obtain orders for litigation plans or other orders that deviate from those default deadlines. Case management is where a judge is seized of the matter and this judge will hear all pre- trial applications but possibly not the trial. Not all commercial matters qualify for or need case management. If a matter is not under case management, the pre-trial applications will be The rules of procedure or another provincial statute will govern when a trial may be heard by a jury. For example, in some jurisdictions in Canada a statute lists the types of causes of action that upon application may be heard by a jury such as claims for defamation, malicious prosecution, and false imprisonment. In others, the rules of procedure identify what causes of action cannot be heard by a jury such as those relating to the specific performance of a contract or the dissolution of a partnership. assigned to an available judge. 7.3 Jury Trials in Civil Cases The default rule is that trials of commercial mat- ters are heard by a judge alone. If a party wishes to have a matter determined by a jury, they will be required to comply with the local rules such as filing and serving a jury notice or obtaining leave of the court. Jury trials for commercial cases are rare in Canada.
Unless the court orders otherwise, trials are conducted in open court with witnesses, not in writing. In order to ensure a speedy or efficient trial, the parties may agree in advance to admit certain facts or provide the judge with certain documents as agreed exhibits. If no agreements are reached, witnesses are called and their oral testimony and any documents are admitted based on the rules of evidence and procedure for that court. At the trial, both sides may provide an oral open- ing statement. Depending on the complexity of the trial, the trial judge may also request a shorter written argument or bench brief before trial to assist him or her with understanding the evidence and the issues. At the end of the trial, both sides will also typical- ly provide oral and written submissions regard- ing the issues; the applicable legal principles; the weight to be given to the admitted evidence; and the relief sought. 7.2 Case Management Hearings The rules of procedure differ regarding the pro- cedure for hearing interim applications. Some types of applications, such as orders that may be consented to by the parties, may fall within a written procedure. Less complex applications that are opposed but require less than a prescribed period of time to argue may be heard in regular chambers before a judge on a few days’ notice. More substantive applications that are opposed, such as summary judgment or an application to strike, may have to be scheduled months in advance through a
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