Civil Procedure
Overview of Civil Procedure
Civil procedure governs the rules and standards for resolving civil disputes in court. For the NCA exam, you must understand the lifecycle of a civil action, from pleadings to trial and appeal, with a focus on the Ontario Rules of Civil Procedure and relevant statutes. Key concepts include jurisdiction, commencement of proceedings, pleadings, motions, discovery, pre-trial procedures, trial, and appeals. You must also know the difference between substantive and procedural law, and how the rules aim to secure the just, most expeditious, and least expensive determination of every civil proceeding on its merits (Rule 1.04).
Jurisdiction and Commencement
A candidate must grasp the bases for jurisdiction: territorial (where the defendant resides or the cause of action arose), subject-matter (e.g., Small Claims Court limit), and inherent jurisdiction of superior courts. Traps often involve distinguishing between the Federal Court and provincial superior courts, or between simplified procedure and ordinary procedure. For example, simplified procedure applies to claims between $35,000 and $200,000 (as of 2020), while Small Claims Court handles claims up to $35,000. Another trap is the limitation period: generally two years from the date the claim is discovered (Limitations Act, 2002).
Pleadings and Motions
Pleadings (statement of claim, statement of defence, reply) must contain a concise statement of the material facts, not evidence. A common trap is including evidence or legal arguments in pleadings, which may be struck. Motions are the procedural vehicle for interlocutory relief. You must know the difference between a motion on notice and an ex parte motion, and the test for summary judgment (no genuine issue requiring a trial).
Discovery and Pre-Trial
Discovery involves documentary and oral discovery. Traps include the scope of relevance (semble: test is whether the document could be used to advance a party's case or damage the other's) and the implied undertaking rule (documents obtained on discovery cannot be used for other purposes without leave). Pre-trial conferences are mandatory in many cases.
Trial and Appeals
At trial, the plaintiff bears the burden of proof on a balance of probabilities. Traps involve the distinction between direct and circumstantial evidence, and the rule against hearsay. Appeals are generally as of right if the amount in controversy exceeds $50,000 (Ontario), otherwise leave is required. A worked example: If a plaintiff sues for $100,000, the simplified procedure applies, and the trial will be before a judge alone unless a jury is requested. Rule of thumb: always check the monetary threshold and limitation period first.