Litigation 2023

• Published date: 14 December 2022
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Tax, Money Laundering, Trials & Appeals & Compensation, Personal Injury, Income Tax
• Law Firm: Lawson Lundell LLP
• Author: Mr Craig Ferris, KC, Laura Bevan, Kinji Bourchier and Catherine Whitehead

Trends and Developments

Recent Developments in Canada's Legal Landscape

Introduction and summary

In Canada, commercial litigators and courts are returning to in-person proceedings and business as usual. At the same time, many of the practices implemented during the COVID-19 pandemic, such as increased electronic filing, remain in place and will likely be permanent. This article will outline some of these initiatives and changes, which are expected to become more widespread and permanent.

The discussion will also cover the hotly debated topic of whether employers can require employees to be vaccinated and/or provide proof of immunisation against COVID-19. Although the various government-implemented vaccine mandate programmes in Canada have now ended (not without some controversy), the validity of mandatory employer vaccination policies continues to be raised in labour arbitrations and has recently been considered by the British Columbia (BC) Supreme Court.

This article will also highlight two recent decisions of Canada's highest court, the Supreme Court of Canada (the SCC), in which the SCC reiterated that retroactive tax planning is not permitted in the country. In another case involving professional misconduct, the SCC clarified that there is no established length of time at which delay in administrative proceedings amounts to an abuse of process, and the reasoning in this case is likely to be applied in civil proceedings.

Finally, some of the recommendations from the final report of the Commission of Inquiry into Money Laundering in British Columbia will be set out, alongside a summary of an upcoming case to be heard by the SCC that is anticipated to provide new insights into legislation that is meant to mitigate the harmful effects of so-called Strategic Lawsuit Against Public Participation (SLAPP) lawsuits.

Access to justice initiatives and practice changes

The pandemic highlighted the need to improve access to justice for persons who represent themselves in court, and the courts in some provinces have taken steps to address this issue. For example, BC has enacted a new Court of Appeal Act (the Act) and new Court of Appeal Rules (the Rules), effective 18 July 2022, which are intended to help modernise the court system and improve access to justice. Among other things, the new Act and Rules clarify the requirements for applying for leave (permission) to appeal and update the requirements for filing and serving documents related to an appeal. The new Rules also outline the process for referring an appeal to case management, as well as the types of orders that a judge conducting case management can order. The new Rules include new court forms with plain-language instructions and that are considered more readable than the previous court forms.

The Canada Trends & Developments chapter in last year's litigation guide noted the introduction of Ontario's Justice Accelerated Strategy, a multi-year plan to accelerate access to the justice system. In December 2021, as part of the Justice Accelerated Strategy, Tribunals Ontario implemented a new case management system that streamlines the dispute resolution process by allowing applications to be filed, processed, and scheduled online. The Landlord and Tenant Board is the first tribunal to implement the new system, which will eventually be expanded to include more tribunals, boards and commissions.

The Canada Trends & Developments chapter in the 2019 litigation guide also covered the BC Civil Resolution Tribunal (CRT), an online tribunal with statutory jurisdiction to resolve certain categories of civil disputes. In 2019, through a package of amendments to the Civil Resolution Tribunal Act (CRTA), the BC government expanded the CRT's jurisdiction to include claims for injuries sustained in motor vehicle accidents up to CAD50,000. The BC government had suggested that the existing system of compensating for minor personal injuries in tort was threatening both the viability of the public insurer and the actual compensation recovered by victims of minor injuries. The CRTA amendments granted the CRT jurisdiction to determine the following issues:

• the claimant's entitlement to no-fault accident benefits payable under the province's Insurance (Motor Vehicle) Act;
• whether an injury is a...