Chapter 8: Pre-Trial Relief and Disposition Without Trial

• Pages: 189-244
• Author: Janet Walker,Lorne Sossin,Erik S. Knutsen,Gerard J. Kennedy

CHA PTER 8

PRE-TRIAL RELIEF AND

DISPOSITION WITHOUT

TRIAL

A. INTRODUCTION

The historic goal of the Canadia n civil justice system has been the na l

disposition of the right s of the parties through either a tri al before judge

and jury or a hearing. In theory, a nal order will not be issued until

a trial or hear ing has been conducted. In reality, very few case s reach

trial. Most that are not settled, abandoned, or withdrawn are res olved

by virtue of an interlocutory or sum mary proceeding.

Recently, however, there has been a near uniform trend toward

shortened and simplied civil lit igation and the diversion of as many

civil disputes a s possible to alternative means of di spute resolution.

This trend is justied by recourse to two primary rationales: rst, to

ensure judicial economy and a principled, cost-effective alloc ation of

court resources and second, to ensure acce ss to justice for litigants who

might be excluded from civil litigation by rea son of cost and delay.

This chapter covers six dist inct aspects of pre-trial rel ief and how

litigation may be disposed of without a trial:

1) motions and pre-trial relief general ly;

2) the concept of substantive disposition without trial generally;

3) motions to strike, stay, dismiss, or determine a legal issue;

4) abusive litigation;

5) summary judgment and summary tr ial; and

6) procedural dispositions such as default judgments.

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CIVI L LITIGAT ION

190

B. MOTIONS AND PRE-TRIAL RELIEF

GENER ALLY

Litigation is time-consum ing. The length of time between the  ling of a

claim and the tr ial of the dispute may take months or years. Sometime s,

however, what is being sought in the litigation is time sensitive — the

preservation of a heritage home or the right to run a summer amuse-

ment park. Occasionally, there are genuine concerns that a defendant

will shed asset s so as to become “judgment proof.” The common law

and rules of civil procedure h ave addressed these concern s by provid-

ing a range of legal routes for the preservation of rights pending litiga-

tion. This section will explore some of the more notable mechanisms

for pre-trial relief.

The section is divided into three subs ections. The rst addresses

motions generally and how they are brought in litigation. The second

describes t he legal test for obtaining an injunction, a type of pre-trial

remedy. The third focuses on specic typ es of interlocutory relief: a) the

Mareva Injunction, which allows a party to freeze the assets of another

party pending l itigation; b) the Anton Piller Order, which is designed

to prevent the destruction of evidence before tri al; c) preservation of

property pending litigat ion; and d) certicates of pending litigation.

Another common pre-trial motion — security for costs — is discussed

in Chapter 2.

1) Mot ions

All provincial procedural rules1 permit “motions” (known as “applica-

tions” in British Columbia, Alberta, Saskatchewan, and Newfoundland

and Labrador2) to be brought seeking relief. One’s imagination is the

limit concerning the subject matter of a motion, but quintessential ex-

amples have been addressed earlier in this book, such as ensuring that

the proper parties are pre sent (Chapter 5), seeking compliance with

discovery obligations (Chapter 6), and making determinations regard-

ing privilege (Chapter 7). As noted in Chapter 10, these determinations

are subject to limited appeal right s, recognizing that proportionality

generally warrant s litigation proceeding notwithstanding d isputes over

1 Ontario, r 37; Manitoba, r 37; Newfoundlan d and Labrador, 5.02; Prince Edward

Island, r 37; Nova Scotia, Part 6; New Br unswick, r 37; Quebec, art 110.

2 British Columbi a, r 8-1; Alberta, r 6.3; Saskatchewan r 6 -1; Newfoundland and

Labra dor, r 18.

Pre-Trial Relief and Di sposition Without Trial 191

these matters. Indeed, judges di scourage bringing motions when they

do not encourage the proportionate resolution of an action.3

Motions require evidence that the moving party is entitled to t he

relief sought. Evidence of motions is typically tendered by afdavit,

though opposing parties c an cross-examine on the contents of those

afdavit s.4

2) Injunctions

One possible route for parties wishi ng to obtain a judicial remedy in

an expedited fashion prior to trial is the inter im or interlocutory in-

junction.5 Injunctions are available in order to preserve a part y’s rights

in anticipation of future litigation.6 Injunctions arose out the court’s

equitable jur isdict ion7 and are tied to the principle of fairnes s. Injunc-

tions may be “interlocutory” or “na l.” An injunction is “interlocutory”

when it is granted before the tri al of the plaintiff ’s action or intended

action or the hearing of the applicant’s application.8 An injunction is

referred to as “nal” or “permanent” when it is granted after the tri al.

A permanent injunction might, for instance, be granted to stop forever

a particular u se of property or a particular k ind of conduct.

Injunctions are interlocutory when they do not end the litigation

but rather seek to preserve or “freeze” the st atus of the parties pend-

ing a nal resolution. An interlocutory injunction that species a par-

ticular time per iod may also be termed an “interim injunction” or an

“interi m interlocutory injunction.”9

3 See, e.g., Den Elzen v Kelly, 2017 ONSC 98 at para 53.

4 See, e.g., Ontario, r 39.

5 See, generally, Robert J Sh arpe, Injunctions and Specic Per formance, looseleaf

(Aurora, ON: Canada Law B ook, 1998) and Eugene Meehan, Injunctions (Scar -

borough: Carswel l, 1996).

6 There are a number of spe cialized injunctions a vailable in Canadia n courts.

Mareva Injunct ions and Anton Piller Orders ar e discussed below. In some prov-

inces (notably Brit ish Columbia and Alberta), pre-judgment gar nishment orders

permit cred itors to obtain an order whereby al leged debtors are required to pay

a sum of money into court. Th is money is then returned to t he debtor or paid to

the creditor depe nding on the outcome of the trial. S ee, for example, West mills

Canada Inc v Har vey & Pulton Warehouse Carpet Sales Ltd (1989), 65 Alta LR (2d)

355 (CA). In Saskatchewa n, a “preservation” order lls a si milar role: Enforce-

ment of Money Judg ments Act, SS 2010, c E-9.22, Part II.

7 See PM Perell, The Fusion of L aw and Equity (Markham: Butt erworths, 1990).

8 Centur y Engineering Co Ltd v Greto, [1961] OR 85 (HCJ).

9 Ibid.