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Litigation: Some Key Differences between Civil Litigation in Canada and the United States -- Part 2

Berkley SellsIn addition to the various differences between civil litigation in Canada and in the United States which were summarized in my last article (e.g., in Canada there are no elected judges, far fewer civil jury trials, awards of punitive damages are rare, etc.), there are other key differences regarding how litigation is conducted. This article addresses an area with some of the most important differences, namely documentary and oral discovery practice and procedure. The next article in this series will address the critical differences which arise from the Canadian "loser pays" cost regime.

Documentary and Oral Discovery

Canada's provincial rules of civil procedure (but notably not those in Quebec) typically require each party to deliver a sworn affidavit of documents listing every document relevant to the matters in issue in the litigation which is (or was) in that party's possession, power or control. The definition of document is broad and includes electronically stored information. The parties can agree to limit this broad presumptive rule regarding documentary discovery (e.g., in Ontario through a joint "discovery plan") and the courts are increasingly willing to do so on a motion (e.g., based on considerations of "proportionality" - especially given the costs of voluminous electronic documentary production). Once a party's sworn affidavit of documents has been served, all other parties are entitled to obtain copies of the non-privileged documents that have been listed.

While the documentary discovery obligations in Canada's common-law jurisdictions are thus broader than those in most U.S. jurisdictions, the oral discovery regime is much narrower. For example, a corporate party is normally only obliged to produce a single knowledgeable representative for oral examination for discovery by an adverse party--multiple "depositions" of different employees will not be permitted. In addition, some Canadian jurisdictions (notably, since Jan. 2010, Ontario) have begun to place limits on the total amount of oral examination for discovery that a party may conduct (in Ontario, absent consent or a court order, just seven hours). Both documentary and oral discovery of non-parties is available, on consent or by way of court order, but in practice such non-party discovery is fairly rare.

The limited oral discovery regime in Canada, in contrast with the multiple-deposition regime in the United States, serves to moderate the legal costs associated with many civil actions. That said, in large civil actions (e.g., class actions and complex commercial disputes) the costs of preparing for and properly conducting documentary and oral discovery are often very significant. Electronic evidence has exacerbated that problem in recent years.

Read Berkley Sells' previous column.

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