CANADA Law and Practice Contributed by: Craig Ferris KC, Marko Vesely, Shannon Hayes and Codie Chisholm, Lawson Lundell LLP
is up to the judge, although the parties may request a transcript of the oral reasons. Deci- sions on interim applications may be issued orally, particularly if they are on urgent matters while trial decisions of commercial matters will likely be reserved with written reasons issued weeks or months later. 7.8 General Timeframes for Proceedings Where a matter proceeds through a less com- plex procedure (referred to as a petition or origi- nating application as described in 3.4 Initial Complaint ) the matter may take a few months or a few years to resolve. Where the matter pro- ceeds as an action with a statement of claim or notice of civil claim, the action will most likely take much longer to reach trial. The procedural timeframes and trial duration will depend on the complexity of the matter, the degree of co-operation between the parties and court availability to hear applications or book trial dates. The rules of procedure will provide mechanisms for the dismissal of proceedings for long delay (typically several years where no material steps are taken) or delay giving rise to prejudice. These orders for dismissals are not automatic and require an application with supporting evidence.
For commercial matters, the party receiving funds may request as a term of the settlement that the monetary amounts be incorporated into a consent judgment, which will assist that party with enforcement if the amount is not paid. While this requires a judge’s approval, since the order is entered by consent, the judge is unlikely to inquire into the terms. 8.2 Settlement of Lawsuits and Confidentiality The Supreme Court of Canada has recognised settlement privilege as one of the classes of privilege. Settlement privilege protects the con- fidentiality of information and communications exchanged in the process of settling a dispute. There are exceptions to settlement privilege and a court may order that certain information relat- ing to settlement be disclosed. For example, in multiparty litigation where the plaintiff settles with one or more of the defendants, the court may order the disclosure of certain details of the settlement to the defendants remaining in the action. Offers to settle may be exchanged under the common law and through the rules of procedure. The rules of procedure may contain specific forms and requirements for a “formal” offer to settle, that if refused, may result in cost con- sequences if the party sending the offer beats the offer at trial. This offer to settle may not be disclosed until after a decision is made on the merits. 8.3 Enforcement of Settlement Agreements If a settlement agreement is reached, it is enforced just like any other contract. If there is a breach, the innocent party will commence
8. Settlement 8.1 Court Approval
In general, court approval is not required to set- tle a lawsuit of a commercial matter other than class actions. However, if a settlement involves a minor or a disabled person, court approval may be required. The rules of procedure or a provin- cial statute will contain the restrictions and any applicable procedure.
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