Canada

Civil claims in Canada are heard by the Federal Court, provincial and territorial courts. Most commercial claims will be heard by provincial courts at first instance as the jurisdiction of the Federal Court is limited to specific federally-regulated areas such as cases involving the federal Crown, intellectual property and admiralty or maritime matters. Appeals from provincial and territorial courts are heard by that jurisdiction’s Court of Appeal. Appeals from the Federal Court are heard by the Federal Court of Appeal. The Supreme Court of Canada is Canada’s final court of appeal. It hears appeals in all areas of the law from the appellate courts in each province and the Federal Court of Appeal (chapter S-26, Supreme Court Act, RSC 1985).

In Toronto, commercial claims are often heard by the Commercial List. The Commercial List is a specialized branch of the Ontario Superior Court of Justice created to hear issues of commercial law and bankruptcy and insolvency matters. This court is composed of a team of judges who has experience in managing complex commercial litigation (Ontario Superior Court of Justice, Consolidated Practice Direction for the Toronto Region, G. Commercial List Matters, effective October 14, 2025).

Canada’s ten provinces and three territories each have their own rules of civil procedure, as does the Federal Court. The Ontario Superior Court of Justice launched a major review of its civil rules in January 2024. Once implemented, the reforms are expected to significantly alter the procedural rules governing commercial litigation in Ontario. Examples of the proposed changes include mandatory mediation for all litigation proceedings and the introduction of a pre-litigation protocol, which will require parties to exchange their most relevant documents and attempt settlement discussions or voluntary mediation to resolve the dispute (see The Honourable Justice Cary Boswell and Allison Speigel, Overhauling Ontario’s Civil Rules: What’s Next?, presentation delivered online for the Ontario Bar Association and the Advocates’ Society, November 24, 2025).

There are generally no pre-action considerations for commercial litigation claims in Canada. In some narrow, typically non-commercial contexts, certain statutes set out notice requirements and corresponding prescribed forms. However, generally, claims do not require pre-action considerations. As noted above, if implemented, the Ontario rules reforms will include a new pre-litigation protocol.

Mediation

Mediation is an informal dispute resolution process facilitated by a neutral third party jointly appointed by the parties. The mediator attempts to facilitate a resolution between the parties. However, unlike a court or arbitrator, the mediator cannot impose a resolution on the parties.

In some jurisdictions, parties are required to engage in some form of mandatory mediation prior to setting the matter down for trial. Further, the reforms proposed by the Ontario Superior Court will extend mandatory mediation to all commercial litigation in Ontario (Regulation 194, rule 24.1, Ontario, Rules of Civil Procedure, RRO 1990).

Arbitration

Arbitration resembles private litigation in the sense that a binding resolution of the dispute is made by an arbitrator or panel of arbitrators. Arbitration is generally agreed to by the parties, either by contractual arrangement in advance or once a dispute arises. One of the main benefits of arbitration for commercial disputes is that they are generally conducted on a confidential basis (unlike a court proceeding which is typically public). In certain regulated industries, arbitration is prescribed by statute or regulation. Arbitrations may be conducted under already established procedural rules which may be modified by the parties (and the arbitrator), or the rules may be created by the parties to the dispute.

It will generally take at least two years for a straightforward commercial case to reach trial. Proceedings in Ontario and British Columbia experience the longest delays for complex trials due to high caseloads. It is not uncommon for proceedings in these jurisdictions to take five years (or longer) to reach trial. However, in some Canadian jurisdictions, and in some limited circumstances using abbreviated procedures, commercial cases can reach trial within eight months of the litigation being commenced.

The two most common types of discovery are the production of documents (including electronic documents) and oral examinations of the adverse party, both of which typically involve the disclosure of helpful and unhelpful documents by the parties to the proceeding.

Document discovery

A party must disclose and produce every document relevant to any matter in issue that is in its possession, control or power, if requested. Factors such as relevance, privilege and proportionality may limit the scope of document production. However, all relevant documents, even if subject to privilege, must be disclosed (see, e.g., section 30.02, Manitoba, Court of King’s Bench Rules and Regulation 194, Manitoba Regulation 553/88 and rule 30.02, Ontario, Rules of Civil Procedure, RRO 1990).

Electronic discovery (“e-discovery”) has greatly expanded the scope of document discovery. In complex commercial litigation, there can be millions of relevant documents in a single proceeding. To manage the high volume of documents, the Ontario Rules of Court have adopted the Sedona Canada Principles Addressing Electronic Discovery (Regulation 194, rule 29.1.03(4), Ontario, Rules of Civil Procedure, RRO 1990). The overarching purpose of the Sedona Canada Principles is to ensure that the e-discovery process is proportionate to the nature and amount involved in the litigation.

Outside of Ontario, few provinces have changed their Rules of Court to directly address the challenges of e-discovery. However, courts in most Canadian jurisdictions have shown an increasing willingness to focus on proportionality in e-discovery, rather than a strict adherence to the rule that all relevant documents must be produced.

Oral discovery

Parties may conduct an oral examination for discovery/questioning of any other party adverse in interest, once, by right. If a corporation is one of the parties to the litigation, the examining party may examine one officer, director or employee on behalf of the corporation. To examine more than one employee, the examining party must obtain the consent of the adverse party or obtain leave of the court (see, e.g., rule 31, Prince Edward Island, Rules of Civil Procedure; rule 7-2, British Columbia, Supreme Court Civil Rules, BC Regulation 168/2009; and Regulation 194, rule 31.03, Ontario, Rules of Civil Procedure, RRO 1990).

Ontario’s discovery process is changing

Ontario’s Civil Rules Reform has proposed many changes to the discovery process in Ontario. If the Rules reforms are adopted in their current form, parties may be required to produce discovery-related information as early as the exchange of pleadings and examinations for discovery will be more focused in subject matter and limited in duration (see the reference to The Honourable Justice Cary Boswell and Allison Speigel in Question 2, above).

Witnesses can be compelled to attend trial by serving them with a subpoena or summons to witness, depending on the jurisdiction in which the trial is being held. A witness subpoena or summons must be served before the date when the witness is required to attend court, unless a judge orders otherwise. Failure to attend on the date required constitutes contempt of court, which may result in penalties imposed by the court, such as fines or imprisonment (see, e.g., rules 12-5(22) and (31), British Columbia, Supreme Court Civil Rules, BC Regulation 168/2009; rule 8.8, Alberta Rules of Court, Alberta Regulation 124/2010 and Regulation 194, rules 53 and 60.11, Ontario, Rules of Civil Procedure, RRO 1990).

The right to cross-examine a witness is a fundamental feature of the trial process in Canada. This principle applies in civil proceedings across all Canadian provinces and territories, although specific procedural rules may vary slightly by jurisdiction. At trial, counsel can cross-examine all opposing witnesses by right.

The basic costs principle in Canada is that the unsuccessful party will be ordered to pay the litigation costs of the successful party. This is also known as the “loser pays” system.

In Canada, courts have the discretion to order a party to pay another party’s costs “of and incidental to” the proceeding (see, e.g., chapter S-26, 47, Supreme Court Act, RSC 1985; chapter C43, section 131, Courts of Justice Act, RSO 1990 and section 10.29, Alberta Rules of Court, Alberta Regulation 124/2010).

The court has relatively wide discretion over the following issues in a costs order:

• whether costs are payable by one party to the other;
• if yes, which party is responsible for paying costs to the other party; and
• if yes, what the particular costs order shall be.

The court also has the discretion to determine the amount of the costs.

In determining the amount of costs, and by whom they are paid, the court may consider several factors, including:

• the result of the proceeding;
• the complexity of the proceeding;
• the conduct of the parties (before and during proceedings, and efforts made to resolve the dispute);
• any offers to settle made during the proceeding (chapter C43, section 131, Courts of Justice Act, RSO 1990; section 400, Federal Court Rules, SOR/98-106 and Regulation 194, rule 57, Ontario, Rules of Civil Procedure, RRO 1990).

The most common interim remedies in commercial proceedings are interlocutory injunctions and summary judgment. Interim remedies are sought by applications or motions, depending on the jurisdiction in which the relief is sought.

Interlocutory injunctions

An injunction is an order of the court impeding the commission or continuance of a wrongful act, restraining a pending or existing breach of contract or seeking to preserve rights or assets pending the outcome of litigation. Injunctions can prohibit a party from undertaking or continuing certain conduct, or an injunction can impose an obligation on a party to undertake or continue to act in a certain manner.

The three-part test for interlocutory injunctions was established by the Supreme Court of Canada in RJR-MacDonald Inc v. Canada (Attorney General), [1994] 1 SCR 311. The party seeking an interlocutory injunction must establish the following three elements:

• there is a serious question to be tried;
• irreparable harm will result if the relief is not granted; and
• on balance, convenience favours granting the injunction.

Injunctions are discretionary in nature. In deciding whether to grant an injunction, a court must consider the overall context in which the application is made and determine whether the granting or refusing to grant an injunction would be fair in the circumstances.

Summary judgment

Summary judgment applications are intended to weed out meritless claims and responses without a full trial. A party may obtain summary judgment on some or all matters at issue in a proceeding. The test for summary judgment, established by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7 is: whether there is a genuine issue requiring a trial? The Court clarified that there is no genuine issue requiring a trial when a judge is able to reach a fair and just determination on the merits of the evidence before them as filed by the parties on the summary judgment motion.

Each of Canada’s provinces and territories except Quebec has a statute that applies to domestic and international commercial arbitrations respectively. In Quebec, the Civil Code of Quebec and the Code of Civil Procedure apply to both domestic and international commercial arbitrations.

The law governing international arbitration in Canada is based on the UNCITRAL Model Law (“Model Law”). Every province and territory’s international commercial arbitration statute, except those in British Columbia and Quebec, incorporates the Model Law as a Schedule. In British Columbia and Quebec, the statutes applicable to international commercial arbitrations are generally consistent with the Model Law.

At the federal level, chapter 17 of the Commercial Arbitration Act, RSC 1985 (2nd Supplement), applies to both domestic and international commercial arbitrations when:

• at least one of the parties is a federal department or Crown corporation; or
• the arbitration involves an admiralty or maritime matter.

The federal Commercial Arbitration Code is based on the Model Law.

Judicial intervention in arbitration is limited to situations contemplated by statute, consistent with the modern approach courts have taken to arbitration as autonomous, self-contained, and self-sufficient. Courts apply the competence-competence principle, providing that an arbitral tribunal should be the first to consider challenges to its jurisdiction.

An arbitral tribunal has power to order interim relief, subject to the arbitration agreement and binding only on the parties to the dispute.

In international arbitrations, this is based on Article 17 of the Model Law (with certain jurisdictions such as Quebec, Ontario, and British Columbia adopting the 2006 amendments to Article 17 which provides a broader framework for interim measures than the 1985 Model Law). For international arbitrations, the tribunal will typically consider whether it has prima facie jurisdiction over the dispute; whether the request for relief is urgent and cannot await a determination on the merits; whether the relief sought is necessary to prevent imminent harm that is not compensable by money or that may prejudice the arbitral process before the merits of the dispute are resolved; whether the balance of convenience favours the granting of the order; and whether the applicant has established a reasonable possibility of success on the merits.

For domestic arbitrations, tribunals will typically follow the test for interim injunctive relief set out by the Supreme Court of Canada in RJR Macdonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311, which generally considers the following factors:

• Is there a serious question to be tried?
• Would the applicant suffer irreparable harm (meaning not compensable in money) if the application is refused?
• Does the balance of convenience favour the granting of the interlocutory relief?

A party may request an arbitral tribunal to make an order for the detention, preservation or inspection of property and/or documents, and/or the provision of security, and courts may enforce an arbitral tribunal order as if it was made by the court.

Canadian jurisdictions vary in their approaches to appeals of arbitral awards. Generally, arbitral awards in domestic arbitrations can be appealed on questions of law with leave of the court, unless the parties’ arbitration agreement specifically provides for appeals on questions of law or of mixed fact and law. In international arbitrations, there is generally no right of appeal, but an award may be set aside on the specific narrow grounds set out under Article 34 of the Model Law.

Canada and the United Kingdom are parties to the Convention between Canada and the United Kingdom of Great Britain and Northern Ireland Providing for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters (Canada-UK Convention). This Convention sets out the procedure for enforcing Canadian monetary judgments in the United Kingdom, and vice versa. The Canada-UK Convention has been incorporated into Canadian law by federal and provincial legislation (chapter C30, Canada-United Kingdom Civil and Commercial Judgments Convention Act, RSC, 1985).

Canada is also party to conventions related to marine pollution, such as the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001. The Marine Liability Act implements the Oil Pollution Convention and provides a mechanism for a foreign judgment of a country that is a party to the Oil Pollution Convention related to civil liability for oil pollution damages to be registered by a judgment creditor in the Federal Court of Canada (chapter 6, Marine Liability Act, SC 2001).

Several provinces also allow for the expedited enforcement of judgments from other reciprocating jurisdictions.

Canada is a contracting state to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”). In every province and territory, except Quebec, the New York Convention applies only in respect of differences arising out of commercial legal relationships. Canada is also a member state of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (“ICSID Convention”).

Generally, Canadian judgments in commercial matters are enforceable.

To enforce a foreign judgment in Canada, a party must obtain an order from a Canadian court. The party relying on foreign law must plead and prove the law before a Canadian judge to enforce a foreign judgment. Canadian courts have adopted a liberal approach to the recognition and enforcement of foreign judgments. If a court finds a foreign judgment to be enforceable, it will have the same legal standing as a judgment of a Canadian court.

If the court finds that the foreign law is not proven, the court will apply the law of its own jurisdiction.

A foreign judgment will not be enforced in Canada if:

• the judgment was obtained by fraud on the part of the party seeking its enforcement;
• the proceedings under which the foreign judgment was obtained were contrary to the principles of natural justice; or
• the underlying cause of action on which the foreign judgment is based is contrary to the public policy of the province in question (Beals v. Saldanha, 2003 SCC 72).

The enforceability of a foreign judgment in Canada depends on the jurisdiction in which it was issued, the nature of the judgment, and the province in which recognition and enforcement is sought. With the exception of the United Kingdom, Canada does not have treaties for reciprocal enforcement of foreign judgments. A proceeding for enforcement must thus be commenced in accordance with the common law.

Enforcement of foreign monetary judgments at common law

The longstanding common law test for the recognition and enforcement of foreign monetary judgments was established by the Supreme Court of Canada in Morguard Investments Ltd v. De Savoye, 1990 CanLII 29 SCC. A Canadian court may enforce a foreign judgment if the court that is being asked to enforce the original judgment is satisfied that the original jurisdiction had a real and substantial connection with the defendant or the subject matter of that litigation (see also Beals v. Saldanha, 2003 SCC 72 and Chevron Corp v. Yaiguaje, 2015 SCC 42 at paragraph 20). A foreign judgment will be presumptively enforceable in Canada if:

• the foreign court properly assumed jurisdiction;
• the judgment from the foreign court is final and conclusive; and
• the judgment is not incompatible with Canadian concepts of justice (see Chevron Corp v. Yaiguaje, 2015 SCC 42).

Enforcement of foreign commercial non-monetary judgments at common law

Canadian courts will, in some circumstances, enforce equitable foreign judgments in commercial matters that are not for the payment of money. The Supreme Court of Canada in Pro Swing Inc v. ELTA Golf Inc, 2006 SCC 52, held that this will require a balanced measure of restraint and involvement by the domestic court. The Supreme Court of Canada enumerated factors to consider in enforcing non-monetary forms of relief, including:

• Whether the terms of the order are clear and specific enough to ensure that the defendant will know what is expected from him or her?
• Is the order limited in scope?
• Does the originating court retain the power to issue further orders?
• Is enforcement the least burdensome remedy for the Canadian justice system?
• Are any third parties affected by this order?
• Is the use of judicial resources consistent with what would be allowed for domestic litigants? (Pro Swing at paragraph 30.)

In the case of international arbitral awards, in most jurisdictions the process for enforcement is based on the New York Convention. For domestic arbitral awards, a party may apply to the competent court for enforcement. In Quebec, the Code of Civil Procedure sets out the processes for the homologation of domestic and international arbitral awards.

The specific procedure varies depending on the rules of court of the jurisdiction. The applicant is generally required to file an application, on notice to the party against whom enforcement is sought, supported by an affidavit including the authenticated original or a certified copy of the award; the original or certified copy of the arbitration agreement; and translations, if necessary. An arbitral award must be made in writing, state its date and the place of arbitration and be signed by the arbitrators. Unless the parties agree otherwise, the award must contain reasons.

The limitation periods for an application to enforce domestic and international arbitral awards vary between provinces. For example, in Ontario, a 10-year limitation period applies to an application for recognition and enforcement, from the date on which the award was made, or if proceedings to set aside the award were commenced, the date on which the proceedings concluded/the set aside application was determined (chapter 2, Schedule 5, section 10, International Commercial Arbitration Act, 2017, S.O. 2017 for international commercial arbitrations and chapter 17, section 52(3), Arbitration Act, 1991, S.O. 1991 for domestic arbitrations). In British Columbia, both international and domestic arbitral awards are defined as a “local judgment” under that province’s limitations statute, and an enforcement proceeding cannot be commenced more than 10 years “after the day on which the judgment becomes enforceable” (chapter 13, sections 1 and 7, Limitation Act, SBC 2012).

Once a foreign judgment has been registered, it can be enforced in the same manner as any other order of the court in which it has been registered. Enforcement mechanisms may include:

• garnishment;
• seizure and sale of personal property or land;
• appointment of a receiver; or
• contempt orders (see, e.g., Regulation 194, rule 60, Ontario, Rules of Civil Procedure, RRO 1990; rule 13-2, British Columbia, Supreme Court Civil Rules, BC Regulation 168/2009 and Part 9, Division 7-8, Alberta Rules of Court, Alberta Regulation 124/210).

Interim measures pending the enforcement of an arbitral award can include orders for the payment of security, interim orders for preservation of property, pre-judgment garnishment, or interim and interlocutory injunctions, such as an order for the freezing of assets (Mareva injunction) where an applicant can demonstrate a real risk that the respondent will remove or dissipate its assets to avoid judgment (see, e.g. Sociedade-de-fomento Industrial Private Limited v. Pakistan Steel Mills Corporation (Private) Limited, 2014 BCCA 205 reinstating a Mareva injunction order restraining any use of the respondent’s assets in British Columbia).

Proceeding on the assumptions outlined in the Model Answer, would a court in this jurisdiction recognise and enforce the arbitral award under the New York Convention?

In particular:

• Does the award fall within the scope of Article V(1) of the Convention, or would any of the grounds in Article V(1) justify refusal on the assumed facts?
• Is the subject matter of the dispute capable of settlement by arbitration under domestic law for the purposes of Article V(2)(a)?
• Would recognition or enforcement of the award be contrary to public policy within the meaning of Article V(2)(b)?

Response

Canada is a contracting state to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”).  At the federal level,¹ and in every common law province and territory,² legislation has been enacted implementing the New York Convention for commercial legal relationships. In the civil law jurisdiction of the province of Québec, while the New York Convention has not been directly incorporated as such, Québec arbitration law integrates and gives effect to its substantive principles. The Civil Code of Québec and the Code of Civil Procedure governing the recognition, enforcement and validity of arbitration agreements and foreign arbitral awards,³ are largely inspired by, and reflect, the substance of the New York Convention, as expressly recognized by the Supreme Court of Canada.⁴

Proceeding on the stated assumptions, a court in a Canadian province or territory, acting as the enforcing court under the New York Convention, would in principle recognize and enforce the arbitral award.

Does the award fall within the scope of Article V(1) of the Convention, or would any of the grounds in Article V(1) justify refusal on the assumed facts?

On the assumed facts the law governing the arbitration agreement and the law of the seat recognize non-payment of the contractual obligation as giving rise to a dispute capable of arbitration.  Given that on the assumed facts the arbitral tribunal’s mandate is expressly limited to confirming that the judgment is final and unpaid after 28 days, and ordering payment of the contractual sum and interest, without investigating or re-litigating the underlying merits of the original court dispute, there is no reason to believe that the agreement is not valid under the law of the agreement or the law of the country where the arbitral award was made.

There is no suggestion in the assumed facts that the tribunal exceeded the scope of the parties’ arbitration agreement, and Canadian courts have recognized a powerful presumption at the post-award stage that arbitral tribunals have acted within their powers (see, for example: Bayview Irrigation District #11 v. United Mexican States, 2008 CanLII 22120 (ON SC) at para. 63; Quintette Coal Ltd v. Nippon Steel Corp 1991 CanLII 5708 (BC CA)).

Also on the assumed facts there is no suggestion that there was any procedural unfairness in the arbitration, such as lack of notice or an opportunity to be heard. There is also no suggestion that the award has not become final and binding.

Therefore there would be no basis to refuse recognition and enforcement under Article V(1).

Is the subject matter of the dispute capable of settlement by arbitration under Canadian law for the purposes of Article V(2)(a)?

On the assumed facts, the dispute is over payment of a contractual obligation. Contractual disputes are capable of settlement by arbitration and on the facts as presented there would therefore be no grounds to refuse recognition and enforcement on this basis.

Would recognition or enforcement of the award be contrary to public policy within the meaning of Article V(2)(b)?

Recognition and enforcement of an arbitral award may be refused where the recognition or enforcement of the award would be contrary to the public policy of Canada. However, Canadian courts have held that this ground for refusing recognition or enforcement “is to be narrowly construed and requires fundamental breaches of justice and fairness and conduct of a sort that could not be tolerated or condoned by our courts.” (Assam Company India Limited v. Canoro Resources Ltd., 2014 BCSC 370 at para 42; see also Corporacion Transnacional de Inversiones v. Stet International, 2000 CanLII 16840 (ON CA) at para. 2, leave to appeal to SCC refused, 2000 SCCA No 581.)

It has been held that where allowing registration of an award as a judgment would amount to a double recovery, this may be contrary to public policy. (See, for example, Subway Franchise Systems of Canada Ltd v. Laich, 2011 SKQB 249 (CanLII), at paras 31-42.)  However, on the assumed facts, “…there are provisions in the arbitration clause providing against double recovery for the Judgment and the Award.”  Assuming that the claimant could provide evidence to show that enforcement could or would not be sought under both the original judgment and the arbitral award and that therefore there would be no double recovery, there is no other basis in the assumed facts that would justify a refusal of recognition and enforcement on public policy grounds.

¹ United Nations Foreign Arbitral Awards Convention Act, RSC 1985, c 16 (2nd Supp)

² International Commercial Arbitration Act, RSNL 1990, c I-15 (Newfoundland and Labrador); International Commercial Arbitration Act, RSPEI 1988, c I-5 (Prince Edward Island); International Commercial Arbitration Act, RSNS 1989, c 234 (Nova Scotia); International Commercial Arbitration Act, RSNB 2011, c 176 (New Brunswick); International Commercial Arbitration Act, 2017, SO 2017, c 2, Sch 5 (Ontario); The International Commercial Arbitration Act, CCSM c C151 (Manitoba); The Enforcement of Foreign Arbitral Awards Act, 1996, SS 1996, c E-9.12 (Saskatchewan); International Commercial Arbitration Act, RSA 2000, c I-5 (Alberta); Foreign Arbitral Awards Act, RSBC 1996, c 154 (British Columbia); Foreign Arbitral Awards Act, RSY 2002, c 93 (Yukon); International Commercial Arbitration Act, RSNWT 1988, c I-6 (Northwest Territories); International Commercial Arbitration Act, RSNWT (Nu) 1988, c I-6 (Nunavut).

³ In particular, articles 3155 to 3163 of the Civil Code of Quebec, CQLR c CCQ-1991 (Québec) and 652 of the Code of Civil Procedure, CQLR c C-25.01 (Québec), provide a framework aligned with the New York Convention, and Québec courts may have regard to the New York Convention in interpreting and applying these provisions.

⁴ GreCon Dimter inc. c. J.R. Normand inc., 2005 SCC 46.