Written by Gerard Kennedy

By and large, staying out of court is a good idea for business. At times, however, lawsuits become necessary. At other times, they may not be necessary but someone will initiate one anyway. Through my analysis of the role of courts in society, and particularly the civil litigation process, I look at ways that the private rights of businesses are enforced—or, often, not enforced—in the court system. I primarily do so through analyzing civil procedure.

Apart from being a co-author of The Civil Litigation Process: Cases and Materials (9th edition),[1] Canada’s sole nationally-focused civil procedure casebook, I have written several articles about how to resolve litigation, analyzing topics such as:

appeal rights that can delay litigation—but are occasionally necessary to prevent injustices and/or ensure a fair process;[2]
vexatious litigant procedure, how to address litigants who are particularly abusive of a court system;[3]
the jurisdiction and history of the Ontario Divisional Court;[4]
the use of motions to strike to resolve questions of law;[5]
how to summarily dismiss particular proceedings that are abusive of court process;
the delay caused by jurisdiction motions;[6]
the propriety of using summary procedures in novel public law litigation;[7] and
how a greater emphasis on summary procedures has affected Manitoba procedural law.[8]

Many of these articles have analyzed how to resolve cases on their merits quickly, enabling businesses to end litigation either because it is not meritorious, or only certain aspects of the lawsuit are actually the subject of dispute. My work has been cited by the Supreme Court of Canada,[9] the Court of Appeal for Ontario,[10] the Manitoba Court of Appeal,[11] the Alberta Court of Queen’s Bench (as it then was);[12] and the Alberta Human Rights Tribunal.[13]

By way of example, in College of Registered Nurses of Manitoba v Hancock,[14] the Manitoba Court of Appeal recently extensively relied upon my scholarship in addressing the history of vexatious litigant orders, and how statutes and inherent jurisdiction relate to each other in this area.

All of this fits into an increased scholarly discussion in recent years on the principle of proportionality and the need to advance access to justice: perennial problems that affect not only individuals but businesses. Because, while court processes are suboptimal ways to resolve business disputes, they nonetheless play an essential role in preserving the rule of law in Canada—the subject of the recent symposium I co-organized on private rights and the rule of law. Through my scholarly work, which has been generously supported by the Marcel A. Desautels Centre for Private Enterprise and the Law, I seek to explore this important intersection of ideas and concepts.

* Dr. Gerard Kennedy, B.A. (Hons.) (Toronto), J.D. (Queen’s), LL.M. (Harvard), Ph.D. (Osgoode) is an Assistant Professor at the Faculty of Law, University of Alberta, Canada

[1] Janet Walker, Erik S Knutsen, Gerard Kennedy & Catherine Piché (Toronto: Emond Montgomery, 2022).

[2] “Final v. Interlocutory Civil Appeals: How a Clear Distinction Became so Complicated—Its Purposes, Obfuscation and a Simple Solution?” (2020) 45(2) Queen’s LJ 243.

[3] “The Alberta Court of Appeal’s Vexatious Litigant Order Trilogy: Preserving Access to the Courts, Respecting Statutory Language, and Hopefully Not to a Fault” (2021) 58:3 Alta L Rev 739.

[4] “Wither the Divisional Court? Looking at the Past, Analyzing the Present, and Querying the Future of Ontario’s Intermediate Appellate Court” 53:1 (2021) Ottawa L Rev 93.

[5] “Nevsun, Atlantic Lottery, and the Implications of the Supreme Court of Canada’s 2020 Motions to Strike Decisions on Access to Justice and the Rule of Law” (2021) 71 UNB LJ 82.

[6] “Jurisdiction Motions and Access to Justice: An Ontario Tale” (2018) 55(1) Osgoode Hall LJ 79.

[7] “Justiciability, Access to Justice & the Development of Constitutional Law in Canada” (2017) 45(4) Fed L Rev 707.

[8] “Hryniak Comes to Manitoba: The Evolution of Manitoba Civil Procedure in the 2010s” (2021) 44:2 Man LJ 36.

[9] British Columbia (Attorney General) v Council of Canadians with Disabilities, 2022 SCC 27.

[10] Williams v Tuck, 2023 ONCA 452; UD Trading Group Holding PTE Limited v. TransAsia Private Capital Limited, 2021 ONCA 279; Leroux v Ontario, 2023 ONCA 314; Johnson v Ontario, 2021 ONCA 65.

[11] College of Registered Nurses of Manitoba v Hancock, 2022 MBCA 70.

[12] Unrau v National Dental Examining Board, 2019 ABQB 283; VOE v LLE, 2022 ABQB 286; Smith v Petryk, 2022 ABQB 324; Ubah v Canadian Natural Resources Limited, 2019 ABQB 347.

[13] Jaco Line Contractors Ltd. v Christina McCharles, 2021 AHRC 127.

[14] Supra note 11.

The views and opinions expressed in the blogs and case reporter are the views of their authors, and do not represent the views of the Desautels Centre for Private Enterprise and the Law, the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.