THE COURT STRUCTURE
AND LITIGATION PROCESS
Lecture IB
Chapter 2
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to any website or organization without the
Douglas College
express written consent of the author Instructor: Brian Sugg
2
The Court Structure
• Courts play a vital role in society
• interpret and apply legislation
• interpret and apply the Constitution
• interpret and apply previous court decisions
• create “common law” (judge-made law) by
rendering a written decision
3
The Court Hierarchy
• Courts are arranged according to importance
Supreme Court of Canada
Court of Appeal
(every province and territory)
Superior Court
(aka Subordinate Court or Court of First Instance)
4
The Court Hierarchy
• Supreme Court of Canada (9 judges)
BC Court of Appeal (3 judges)
BC Supreme Court (1 judge)
BC Provincial Court
- Small Claims matters ($5,000 to $35,000) - new online Civil Resolution Tribunal
- Traffic and bylaw cases
- Over 95% of Criminal Law cases
- About 50% of Family Law cases
5
The Court Structure
• courts are also arranged by jurisdiction
• every province and territory has a superior court
and a court of appeal
SCC
BC CA Alta CA Sask CA Man CA Ont CA
BC SC Alta KB Sask KB Man KB Ont SC
6
Rule of Law and Judicial Precedent
• rule of law
• disputes resolved based on well-established
laws (rules) and not by arbitrary means
• doctrine of judicial precedent
• fundamental aspect of judicial decision-making
• Latin: stare decisis
• judge must consider previous judicial decisions
on similar points of law
• promotes certainty and consistency in court
decisions
7
The Application of Judicial Precedent
• Court in same jurisdiction
• decision of higher court in same hierarchy is
binding
• Court in another jurisdiction
• decision of court in different hierarchy may be
persuasive but is not binding
Supreme Court of Canada sits atop every
hierarchy in Canada
8
The Application of Judicial Precedent
BCCA
Connor v. Anisha (1996)
Mikita = Connor
Gurleen = Anisha
BCSC
Mikita
v.
Gurleen
(2025)
9
The Application of Judicial Precedent
Situation 1
Decision of higher court in the same jurisdiction
BCCA
Connor v. Anisha (1996)
lower court must follow
decision of higher court
in same hierarchy
BCSC
Mikita v. Gurleen (2025)
10
The Application of Judicial Precedent
BCCA
Connor v. Anisha (1996)
Gurleen’s lawyer – want courts to follow the Connor v. Anisha decision
Mikita’s lawyer – want the courts to distinguish the case from the Connor v.
Anisha decision
BCSC
Mikita v. Gurleen (2025)
11
The Application of Judicial Precedent
BCCA
Connor v. Anisha (1996)
Gurleen v. Mikita (2025)
Mistake of Law
Gurleen appeals
(30 days to appeal)
BCSC
Mikita v. Gurleen (2025)
if BCSC judge distinguishes the Mikita v. Gurleen case from the Connor v. Anisha
decision
12
The Application of Judicial Precedent
SCC
Leave to Appeal to SCC
Gurleen appeals again
BCCA
Connor v. Anisha (1996)
Gurleen v. Mikita (2025)
BCSC
Mikita v. Gurleen (2025)
13
The Application of Judicial Precedent
Situation 2
Decision of a court in another jurisdiction
lower court may follow decision
of a court in another jurisdiction (persuasive)
Ont CA
Connor v. Anisha (1996)
BCCA – no similar cases
BCSC
Mikita v. Gurleen (2025)
14
The Application of Judicial Precedent
Assume the BCSC judge chooses not to follow the Ont CA decision
Likely there will be an appeal to the BC Court of Appeal
BCCA
Gurleen v. Mikita (2025)
Ont CA
Connor v. Anisha (1996)
BCSC
Mikita v. Gurleen (2025)
15
The Application of Judicial Precedent
If the BCCA agrees with the lower court judge
then do you think a leave to appeal to the
Supreme Court of Canada will be successful?
BCCA Ont CA
Gurleen v. Mikita (2025) Connor v. Anisha (1996)
BCSC
Mikita v. Gurleen (2025)
16
The Application of Judicial Precedent
SCC
Gurleen v. Mikita (2025)
?????
BCCA Ont CA
Gurleen v. Mikita (2025) Connor v. Anisha (1996)
BCSC Ont SC
Mikita v. Gurleen (2025)
17
Litigation
• What is litigation?
• use of the court system to resolve a dispute
• the downside of litigation
• expensive and time consuming
• unpredictable (lack of control)
• adversarial so harmful to business relationship
• public process so no confidentiality
• stressful/distracting
• no input to selecting the decision-maker
18
Alternative Dispute Resolution
• What is ADR?
• resolution of a dispute outside the court system
• the advantages of ADR
• addresses the downsides of litigation
• the downside of ADR
• may be inconclusive if non-binding
• may be inappropriate if toxic relationship
• may be unequal resources and unequal bargaining
power
• likely to involve compromise (less compensation)
• one side may want a public process
19
Forms of ADR
• Negotiation
• discussion between parties to settle the matter
• no oversight by outsider – B2B negotiation
• Mediation
• neutral mediator offers possible solution(s)
• Mediator’s suggestions are non-binding
• Arbitration
• neutral arbitrator makes a decision
• Arbitrator’s decision is binding
• closest to litigation (no control over binding decision)
20
The Litigation Process
• Documents in a Lawsuit
• Statement of Claim
• originating document drafted by the Plaintiff
• outlines the nature of the complaint
• filed with the court (issued) and served on the Defendant
• 12 months to do so
• Service and Order for Substituted Service
Plaintiff Defendant
Plf. serves S of C
to Court – date
stamped and copy
registered (issued)
Court
21
The Litigation Process
• Documents in a Lawsuit
• Statement of Defence
• Responding document by Defendant to Plaintiff
• 21, 35, 49 days to respond
• Counterclaim
Plf. serves S of C
Plaintiff Defendant
Def. responds with a S of D or
a S of D and Counterclaim
Court
22
The Litigation Process
• Documents in a Lawsuit
• Reply
• Responding document by Plaintiff to the Defendant
• Plaintiff has 7 days to Reply after receiving the
Statement of Defence
Plf. serves S of C
Plaintiff Defendant
Def. responds with a S of D or
a S of D and Counterclaim
Plf. Responds to the S of D
with a Reply
Court
23
The Litigation Process
• Default Judgment
• Plaintiff can request if Statement of Defence is not
delivered within the required time
• Limitation Period
• amount of time Plaintiff has to bring an action (i.e.
have a Statement of Claim issued)
• usually 2 to 6 years for private law actions
• BC Limitation Act – s. 6
• Claim for an injury, loss or damage “must not be commenced more
than two years after the day on which the claim is discovered.”
• Example – performance of contract is due on January 15,
2022 and delivery is not made (contract breached)
24
The Litigation Process
• Judgment
• the court’s decision
• usually includes an Order for Damages (Money) in a
private law matter
• If the Plaintiff loses the lawsuit then no Order for
Damages (unless the Defendant wins a Counterclaim)
• If the Plaintiff wins the lawsuit then the court will likely
make an Order for Damages in favour of the Plaintiff
• Plaintiff becomes the judgment creditor
• Defendant becomes the judgment debtor
Plaintiff Defendant
Judgment Creditor Judgment Debtor
Def. owes debt to Plf.
25
The Litigation Process
• Step 1 – Plaintiff wins the lawsuit
• Step 2 – Plaintiff enforces the judgment
• How?
• Garnishee debtor’s wages from debtor’s employer
• Max. in BC is 30% for a debt (up to 50% for a family law
claim)
Judgment debtor’s
employer Garnishment Order
$10k $7,000
per per month $3,000
per month Judgment creditor
month
Judgment debtor
26
The Litigation Process
• Step 1 – Plaintiff wins the lawsuit
• Step 2 – Plaintiff enforces the judgment
• How?
• Seizure and sale of Judgment Debtor’s assets
• Limits detailed under the BC Court Order Enforcement
Act
• Examination in Aid of Execution
• Judgment debtor compelled to answer questions
under oath about assets, liabilities and income
• Judgment-proof debtor
27
The Litigation Process
• Award of Costs
• losing party must pay legal fees of the other side
• Judgment usually will state an Order for Damages and an
Award of Costs
• If Plaintiff loses
• If Defendant loses
• Type of Costs
• Costs awarded on a party-and-party basis
• Court has a tariff of fees (as well as different scales) so costs
awarded are usually only a percentage of the actual legal fees
• Costs awarded on a solicitor-and-client basis
• used by Court as a way to deter unreasonable or frivolous lawsuits
(or if party did not take reasonable opportunity to settle)
28
The Litigation Process
• Lawyer Fees
• regular hourly rates
• Contingency Fee Agreements
• Law Society Rule 8-1 – fair agreement and reasonable
remuneration
• Law Society Rule 8-2 sets out maximum in personal
injury actions
• 33 1/3% in MVA claims
• 40% in other personal injury/wrongful death claims
29
The Litigation Process
• Class Action Lawsuits
• BC – Class Proceedings Act
• to proceed, the action must first be certified by the BC
Supreme Court
• Elements for Certification
• Cause of action
• Common issues amongst the class members
• Preferable route – most fair and efficient approach
• Notification – representative plaintiff must produce a
plan to fairly notify and represent all potential plaintiffs
