Civil Procedure CANs
Professor. Hewitt
Fall 2018
2L – CIVIL PROCEDURE (CAN) (HEWITT)
Civil Justice System – The Courts
2
Civil Justice System – The Process
4
Commencing of Proceedings
Commencing an Action
Commencing an Application
10
13
16
Dismissal for Delay & Default Judgment
17
Discovery (Documentary)
20
Mandatory Mediation
23
Discovery (Electronic)
26
Motions & Dispositions without Trial
28
Motions
31
Discovery (Oral)
36
Discovery
40
Costs & Fee-shifting
42
Setting Down for Trial
50
Pre-trial Preparation
51
Conduct of Trial
52
Simplified Procedure
54
Res Judicata & Issue Estoppel
55
Privilege
63
Limitation Periods
72
Enforcement of Orders
76
Appeals
78
Rules of Professional Conduct
79
Small Claims Court
92
Class Proceedings
97
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The Civil Justice System – The Courts
Courts in Canada
Ontario Court of Justice (provincial statutory matters)
Judges are provincially appointed
Judges: 1. Justice of the Peace; 2. Justices
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Criminal
o Summary offences
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Quasi-criminal (statutory provincial offences that have a fine/penalty)
Family
o Child support
o Child custody
o Adoption
Superior Court of Justice (civil matters and federal statutory matters)
Judges are appointed by the federal government but the court is run by the province
Judge: 1. Deputy Judges (power is limited to awarding money or returning of property); 2.
Judges
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Civil
Family
o Divorce
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Criminal
o Indictable offences
Small Claims (a subdivision of the Superior Court of Justice)
Judges are provincially appointed.
Judges: Masters (have some but not full powers as a judge)
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Civil matters under $25,000
Divisional Court (a subdivision of the Superior Court of Justice; note: all SCJ judges are also
Divisional Ct. judges)
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Appeals up to $50,000
Judicial review: review of a tribunal decision
Ontario Court of Appeals: Judges are provincially-appointed
Supreme Court of Canada: Judges are federally-appointed.
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Federal Court: Judges are federally-appointed.
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Tax
Immigration
Trademark
Aeronautics
Etc.
Federal Court of Appeals
Tax Court
Military Court
NOTE: unless the legislation that creates a tribunal specifically creates an appellate court, the
decision from a tribunal goes through the regular justice system.
REMEMBER: If the book gives the “court” the power to do something, it means both
Masters and Judges; however, if it says a Judge, it does not include masters or other judges
with quasi-powers.
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The Civil Justice System – The Process
Civil Matters
When there is a dispute, there are two methods to resolve:
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1. Application = statutorily created; supposed to be a quicker process
o Parties= applicant and respondent
o The process:
▪ 1. Notice of Application by P found in the Application Record. P also
provides Affidavit in Support.
▪ 2. Responding Record by D. D also provides Affidavit in Support.
▪ 3. Parties have a right to cross-examine on the affidavits.
▪ 4. Hearing
▪
▪
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5. Judgment
6. Appeal
2. Action = lawsuit. Two types of cause of action (that is created by law):
o 1. Contract breach, 2. Tort
o Parties= plaintiff and defendant
o The process:
▪ Pleadings
 1. Notice of claim or statement of claim: sets forth the material
facts that demonstrate the cause of action; it gets issued by the



court and the cause of action begins the day that the court
stamped it
2. Service: serving notice to the defendant by delivering the
statement of claim, generally, in person
3. File an affidavit of service: a written sworn statement in
front of notary, lawyer or commissioner
4. Respondent must respond by filing documents. They set the
court of the litigation process.
•
•
▪
notice of intent to defend
statement of defence
Discovery
 5. Affidavit of documents: parties must disclose all relevant
documents
•


we determine what is relevant in the law suit based on
the pleadings
6. Mediation: mandatory in Windsor, Toronto, and Ottawa
7. Examinations for discovery
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▪
▪
▪
▪
▪
▪
8. Pre-trial settlement conference
9. Trial
10. Judgment: a final decision
11. Appeal
(12.) Motions – can happen throughout the process
(13.) Interlocutory orders – the decision on the motion that is not final
The role of the Superior Court (80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd. et. Al)
Fact
Real Estate transaction did not close, and a dispute arose as to whether the deposit
should be returned.
Issue
Did trial judge err by holding he had no jurisdiction to compel the parties based on
their cause of action?
Holding
TRIAL: Claims court doesn’t have jurisdiction.
APPEAL: Reversed.
Analysis
Trial judge did have jurisdiction. He should have held that the deposit should be
returned, and the registration assignment discharged. Echoes S.11(2).
Ratio
As a superior court, the Supreme Court of ON has all of the powers that are
necessary to do justice between the parties. Except where provided specifically
to the contrary, the Court’s jurisdiction is unlimited and unrestricted in
substantive law. The Supreme Court of ON has broad universal jurisdiction
over all matters of substantive law unless the legislature divests from the
universal jurisdiction by legislation in unequivocal terms.
How litigation arises
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•
The concept of litigation arises from a dispute between parties
In the first instance, these parties must resolve their parties. Methods to resolve the dispute:
• Two party option:
o Negotiate/ bargain – this process only involves the two parties
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Three party option:
o Mediation – this involves a neutral third party that sits down with the two
parties and encourages them to reach a common ground.
▪ The role of the mediator is to get the parties to resolve their dispute.
▪ In true mediation, the mediator isn’t concerned with who’s right a
who’s right; they are not a trier of fact. However, in reality, mediation
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is seldom successfully unless the mediator assesses the situation and
explains the weaknesses of the case to one/both sides.
▪ Mediation is not binding.
o Arbitration (adversarial) - this involves a neutral third party that decides the
facts, applies the law, and renders a decision on the dispute.
▪ Disadvantage:
 More costly because the parties must foot the bill
 *the public loses precedent because the decisions aren’t public
▪ Advantage:
 Quicker to resolve the issue because parties must agree on the
arbitrator
 The proceeding/decision is private
 parties control the process
o Adjudication (adversarial) – this involves a third party (a judge) that finds the
facts, applies the law, and renders a decision.
▪ Advantage:
 The cost of adjudication is paid by the public purse, therefore
more economic
 The decisions are public and therefore the public gains
▪
precedent
Disadvantage:
 Takes a longer time to reach resolution
 open to the public
 the court controls the process
The adversarial system
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An adversarial system requires rules to make the process fair for all sides.
Elements of fairness:
o *Disclosure
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o
o
o
o
o
*Notice (via personal service is required)
*Impartial referee
The parties have the right to be heard (and to cross-examination)
*The right to know why a party lost
*The right to appeal
*The right to be unnecessarily dragged through proceedings (prevention of
frivolous or vexatious laws)
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o Consequences for breaking rule – not an element
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This system is party-driven because the parties:
o decide on the pleadings
o gather their evidence
o argue their cases
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The parties, however, may not be equal due to finances – the party with more money
is better suited to win the dispute. For example:
o a party needs money to retain a lawyer
o a party needs money to retain expert witnesses
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A lawyer must balance they duty to their client AND the public (the sanctity of the
justice system)
Interlocutory order: an order given in the midst of litigation
Final order: an order that finally disposes of the matter notwithstanding an appeal
What a lawyer must do when a client approaches them:
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*Verify the client’s identity by checking their personal identification, or in the case
of a corporation, their incorporation documents
o This is because we must ensure that the person is not committing fraud:
money laundering and fraudulent mortgage transactions
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*Verify there is not a conflict of interest (the conflict is firm-wide, not just
individual)
o To do this, we need the potential client’s name and the opposing parties’
names
o Types of conflict of interest situations:
▪ If you retained a client that is suing or being sued a former client, you
must ask yourself if in the course of your interaction with your former
client, did you gain any confidential information that you could use
against them in the upcoming lawsuit. If not, then you can represent
▪
▪
•
the new client. If you did, then you cannot retain the new client due to
a conflict of interest.
Owning stock/equity in an entity that creates conflict
Personal conflicts based on running for/holding public office, etc.
Gather the facts (conduct a preliminary interview)
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*Explore settlement by talking to the opponent’s lawyer, not the individual client.
The rules mandate that the parties try to settle before going to court and mandate that
lawyers only speak with the other party’s lawyer, unless they are not represented.
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*Determine the chances of winning: assess the reasonable prospects of success by
researching the law and providing an opinion to your client.
o Check the statute of limitations (if the time limit has expired)
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*Prove you case on the balance of probabilities by using the evidence you have
and convincing the judge.
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*Explain the concept of costs to the client: if a party loses, it must pay a portion of
the opponent’s legal fees (traditionally 2/3 of the cost).
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*Look at the ability to enforce the judgment by ensuring the losing party can
pay: if you represent the plaintiff who will likely receive a judgment, you must
determine if the defendant will be able to pay when they lose. If not, it is probably not
worth going through with this process.
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*Obtain a retainer. Two types of retainer:
o A financial retainer: Before the lawyer starts working on the case, the client
must pay into trust to the law firm. This means the law firm can’t touch the
money because it’s holding it in trust for the client, and then the law firm can
bill against it.
o A written retainer: This is a contract between the lawyer/law firm and the
client. It must include:
▪ the lawyer’s hourly rate of pay
▪ the hourly rate of pay of anyone at the law firm that may work on the
case (i.e. paralegal, assistant, etc.)
▪ method of payment
▪ include info on how the law firm determines what they will bill the
client (i.e. hours worked x hourly rate) OR chagrining a premium
based on success OR a lump sum
▪ how to terminate the relationship


the retainer usually includes information that the client can
terminate the relationship whenever they want
the lawyer can only terminate the relationship for: 1. Nonpayment; 2. Ethical considerations- the client does something
illegal/contrary to the rules or they ask the lawyer to do
something illegal/contrary to the rules
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▪
▪
▪
▪
description of what the law firm will do for the client- this defines the
parameters of the relationship
identify the client
a timetable (optional)
a statement to the effect that the engagement doesn’t start until a
specific point in time (i.e. the money retainer is in the bank)
 Common issue: phantom clients (clients who don’t actually
retain you). A solution to overcome this is that if clients visit
you but don’t retain you, send them a letter confirming that
they didn’t retain you and that they have X number of years to
commence litigation if they pursue the action.
Law Society of Upper Canada created the Rules of Professional Conduct
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This is the governing body that created the regulations that binds all lawyers admitted
to the Bar.
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Commencing of Proceedings
Citation, Application and Interpretation – Rule 1
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1.02: These rules are in use in the Superior Court in Ontario
1:03: Definitions
o “Action”
▪ includes a proceeding commenced by: Statement of Claim, Notice of
Claim, Counterclaim, Cross-Claim or Third or subsequent party claim
o “Document” and “Electronic”
o “Holidays” include Saturdays and Sundays
o “Judge” means a judge of the court (distinction between judge and master)
o “Originating process” → key word is originating; original document that
starts legal procedure (statement of claim, notice of action, notice of
application)
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1.04: Interpretation
o “These rules shall be liberally construed to secure the just, most expeditious and
least expensive determination of every civil proceeding on its merits”
o “Proportionality” – trying to keep the cost of litigation down
o “Party and Party” Costs (1.04(1)(4) – don’t use that term anymore; we now use
“Partial Indemnity Costs”
▪ Are awarded in normal course of events; 2/3 costs (loser typically pays
winner’s legal costs, usually on partial indemnity scale; costs are always
on discretion of court, but that’s generally what happens
o Solicitor-Client Costs → Substantial indemnity (90%)
▪ Full indemnity
•
Non-Compliance with the Rules – Rule 2
o 2.01(1): This rule prevents a person from winning on technicality
o 2.01(2): “The court shall not set aside an originating process on the ground that
the proceeding should have been commenced by an originating process other than
the one employed.”
o 2.03: The court has broad discretion to make sure justice is done
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Time – Rule 3
o If the rule says 7 days or less, you don’t count holidays and weekends.
Therefore, 7 days is really 9 days, and if a holiday is in there, it’s 10 days.
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Court Documents – Rule 4
o 4.06: Sets out what affidavit should look like
o 4.07: what colour covers go on particular documents
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COMMENCING THE CIVIL PROCEEDINGS:
1.
Which court?
a.
Amount:
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•
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b.
Up to and including $25,000 – Small Claims Court (no equitable relief)
$25,001 to $100,000 – Simplified Procedure (Rule 76)
Over $100,000 – Superior Court
Jurisdiction
2.
a.
Where?
Rule 13.1(2) – can commence anywhere but may be transferred pursuant to Rule 13.1.02
3.
How?
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Rule 14: we commence by issuing (when you get the court file no. and date stamp and seal
from the court) an originating process
o Two main originating documents:
▪ (1) Statement of Claim (ACTION) → TRIAL
▪
• Notice of Action
(2) Notice of Application (APPLICATION)
•
14.02: Every proceeding in the court shall be by action, except where a statute or these
rules provide otherwise.
o Action is a lawsuit, and generally there are material facts in dispute. In
application, generally there aren’t facts in dispute, and we’re looking to court’s
guidance or for an interpretation of something
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14.03(1): The originating process for the commencement of an action is a statement of
claim. (Form 14A)
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14.03(2)-(4): Notice of Action
o When not enough time to prepare a statement of claim, you can commence an
action with a notice of action, which contains short statement of nature of claim.
Then you have 30 days to issue statement of claim after the notice of action is
issued
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14.05(2): A proceeding may be commenced by an application to the Superior Court of
Justice or to a judge of that court, if a statute so authorizes.
4. Pleadings - Rule 25
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25.02: form of pleadings
25.05: close of pleadings
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25.06 (1): Material Facts
o Inconsistent pleadings – you may appear to contradict yourself, but you are really
stating an alternative (25.06(4))
o We are not concerned about evidence in a pleading, we are just setting the
framework for the litigation
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26.05(7): We are not concerned about evidence in a pleading; just concerned with setting
framework for a litigation
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25.06(8): when pleading fraud, misrepresentation you need to plead facts with
particularity
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25.06(9): claim for relief – need to set out what you are claiming
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Commencing an Action: Rule 16
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Once a statement of claim goes to the court house, the court issues the claim (= filed
and dated with the court). This date is important because it’s the date that the parties
look for to determine if there’s a limitation issue and by which the rules rely on.
(Form 14A)
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Once issued, the statement of claim must be served personally so as to have certainty
that D has received the claim. Rule 16 – Service of Documents. All original process
must be served personally; no other document needs to be served personally.
o 16.01 – original process
▪ Usually, the person serving the documents is a process server.
16.02 – personal service
▪ For corporations, the secretary may not be sufficient under the rules.
o 16.03 – alternatives to personal service
o
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If personal service is not successful, the claimant may make a motion. Motions – an
interlocutory step where we’re asking the court to make an order that compels
someone else to do something. Motions are brought without notice (“ex parte”). To
start a motion, the claimant must file a Notice of Motion.
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If these alternative forms don’t work, the claimant may file a Notice of Motion asking
the court to dispense of service (this is rarely successful). Other methods include:
o 16.05 – service on lawyer of record
o 16.06 – service by mail
o 16.07 – service by email
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The claimant must then deliver a jury notice if he wants to have damages assess by a
jury. 47 – jury notice. The jury notice is usually delivered to the court at the same
time of the Statement of Claim.
o A claimant wants to go with a jury if the case has emotional appeal
o Criminal jury – 12 people; requires unanimity
o Civil jury – 6 people; requires agreement of 5 jurors
▪ If a juror is discharged, the trial continues with five jurors, which then
▪
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requires unanimity.
The judge can ask the jury to give a general verdict or to answer
specific questions independently, which then does not require five
jurors to answer the issues the same way.
The defendant then must file a Statement of Defence or a Notice of Intent to
Defend (in the first instance)
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Defence – Rule 25.07
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(1) – admissions: D must admit every factual allegation in other party’s proceedings
in order to save time and money. If the D doesn’t admit to something it should
have, the court can award costs to the other side since D wasted P’s time and
money.
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(2) – denials: if the D doesn’t deny an allegation, it’s said to be an admission by
default unless the D pleads not knowing anything about that allegation
•
•
(3) – pleading different version of facts
(4) – affirmative defences: D must plead what their defence is
o Rodero case, para 58 - READ: A party must plead their defences because it
frames the action.
Type of defences (based on rule)
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•
•
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Admissions
Denials
No knowledge
Different facts
Defences
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Statute of limitations – this must be pled in the defence
o Generally, the P should know whether they have a cause of action within
the 2 year of the cause.
o Furthermore, the ultimate limitation period is 15 years.
The following types of claims are due to a party’s belief of another’s contribution and indemnity:
a cause of action blaming third parties for their role in the action. Note: ANYTIME you are
brining in a new party to an action, that is an originating process because you must serve
them personally so as to give that party notice.
•
Third Party Claims – 29: when the D initiates a claim against a third party and
thereby brining them into the main action. This is an originating process.
o 29.02 – issuing a third party claim
o 29.05 – even if you’re a third party, you may want to defend and file in the
main action because the third party is bound by
findings/determinations/outcomes in the main action; however, by defending
the main action, the third party may be liable for costs
o This includes fourth party claim, Fifth party claim, etc.
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•
Cross-claim – 28: when a defendant in an action is suing another defendant in the
same action
•
Counter-claim – 27: when a defendant in an action sues back the plaintiff who is
suing them
o 27.01(2) & 27.03 - A counter-claim that brings in a third party is an
originating process because the new party to the action will be personal
service so that they know they are part of the action. This is an originating
process.
o 27.07 - Filing a notice to defend gives you 10 days on top of the 20 days
you already have to serve the defence.
Set off: setting off money you may owe a party based on what they owe to you. Some case law
indicates no limitation period for set offs.
Reply: if a D has raised a new issue in their defence, the P can put a further pleading that replies
to that particular issue. It should be used sparingly.
Pleadings Summary
1. statement of claim
2. statement of defence
• counterclaim/cross-claim
3. reply
4. third and subsequent party claims
*EXAM TIP: If a rule has a timeframe with seven days or less, we don’t include weekends
or holidays. If not, the timeframe includes weekends and holidays.
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Commencing an Application: Rule 38 (as opposed to action)
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*Used when the claim is
o statutory or
o when rule 14 mandates so
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There are no facts in dispute in an application
The document that claimant uses to start an application is a Notice of Application (an
originating process) which must be issued by the court
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In an action, the claimant wants damages; in an application, the claimant wants
another type of remedy (not damages)
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What type of evidence do we have on an application? Written evidence (an
affidavit)
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The application record, which is a bound volume of material, are generally served
on the respondent
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•
Adj sine die= adjourned to an unknown date in the future
The respondent can file a Notice of Appearance or a Respondent Application
Record.
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The claimant must have a factum before appearing before the judge
Where lawyer is required for representation – Rule 15.01
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Who needs a lawyer?
o Minors
o Mentally disable
o Corporation (unless judge grants leave (=gives permission) to corporation
after it filing a motion)
•
•
15.02 – a lawyer needs permission/authority to represent a party
15.04 – motion by lawyer for removal as lawyer of record
o Number one reason why lawyers seek leave from court to be removed is
refusal of client to pay. If this happens, lawyer should not use to this reason
in their motion to the court because that may be a breach of SC privilege –
you’re revealing your client’s financial status. The lawyer should tell court
that the “solicitor client privilege has broken down.) Three exceptions to break
privilege are 1. crime-fraud; 2. when lawyer needs to defend themselves and
3. public safety (if the client will harm themselves).
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Dismissal for Delay & Default Judgment
Dismissal and Default Judgment
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Default judgment - Rule 19: happens when D doesn’t file a statement of defence or
notice of intent to defend
o 20 days to file (+10 if filed intent to defend) OR 40 (if outside Ontario) OR 60
– see Rule 18.01
•
•
Exceptions with holidays - Rule 3.01(b)
If D is in default, it cannot file Statement of Defence unless:
o Given permission from other side
o Granted leave from the court
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If in default, D cannot take any further steps in the action. Even if rule requires P to
get consent of D, P no longer requires it because D is in default. Once noted in
default, a P can seek a default judgment.
o Liquidated damages vs. unliquidated damages: If you have liquidated
damages, P can requires a default judgment. If not, the P must go before the
judge. Difference= liquidated damages are those than are quantified (car
repairs) unliquidated damages aren’t (i.e. pain and suffering/defamed). For
unliquidated damages, P must file a motion before a judge to prove the
damages (justify the amount you’re asking for) but you don’t need to prove
the liability part – see Rule 19.05. With liquidated damages, you simply file
(i.e. your receipt) with the Registrar and you get your default judgment
damages.
•
Sometimes, Ds go into default because:
o They were never properly served
o They don’t have a defence
o They were out of the country
o Their lawyer was negligent
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D can move to set aside a default judgment (Rule 19.08)
o In this circumstance, D must explain three things:
▪ 1. Why you didn’t defend
▪ 2. Did D bring their motion in a timely fashion
▪ 3. Does D have a meritorious defence
o Usually, D must also submit a draft statement of defence
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Test to set aside default judgment (Lenskis v. Roncaioli)
Fact
D had default judgement against her but she moved to set aside the
judgment after she won the lottery. However, court didn’t set aside
judgment because it found D didn’t have a meritorious defence.
Rule
19.08
Ratio
TEST TO SET ASIDE DEFAULT JUDGMENT:
Generally the requirements that a moving party must meet in
order to have a default judgment set aside are the following:
–
The motion to set aside the default judgment should be
made as soon as possible after the applicant becomes aware of
the judgment;
–
The moving party’s affidavit must set out circumstances
under which the default arose that give a plausible explanation
for the default; and
–
The moving party must set forth facts to support the
conclusion that there is at least an arguable case to prevent on its
merits.
The court will also consider the prejudice if any, that any or both
of those delays caused the defendant.These factors are nonexhaustive. The court will also consider what prejudice there was
against the P due to the delays the D caused
Rule 24- dismissal for delay (when D can move to have action dismissed)
Test for motion to dismiss (Belanger v. Southwestern Insulation Co.)
Ratio (para 30)
In order to succeed on a motion to dismiss a plaintiff's claim for
delay the defendant must establish that the delay has been
unreasonable in the sense that it is inordinate and inexcusable
and that there is a substantial risk that a fair trial will not be
possible for the defendant at the time the action is tried if it is
allowed to continue. The second part of this proposition is often
expressed as the likelihood of prejudice to the defendant giving
rise to a substantial risk that a fair trial will not be possible when
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the case is actually tried. Examples of prejudice are the death of
a witness, the inability to locate a witness, the inability of a
witness to recall important facts or the loss of important
evidence. In determining whether the delay has been
unreasonable the court should consider the issues raised by the
case, the complexity of the issues, the explanation for the delay
and all relevant surrounding circumstances. In considering
whether the defendant has sustained prejudice the court should
consider the availability of its witnesses, whether the evidence is
largely documentary or based on the recollection of individuals,
the efforts made by the defendant to preserve its evidence and
any other relevant consideration. Prejudice to the defendant is to
be considered relative to the time the case will likely be reached
for trial if permitted to proceed. The court will then balance the
right of the plaintiff to proceed to trial with the defendant's right
to a fair trial and make its decision.
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Discovery (Documentary)
Discovery of Documents
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Discovery is focused on the principle of full disclosure; we don’t follow the
smoking gun process where evidence is introduced right before trial (like on TV)
o We have full disclosure because our system is designed to discourage actions,
and strives to resolve disputes
•
Discovery plan - Rule 29.1
o Occurs only in actions; not applications because generally, facts aren’t in
dispute
o 29.1.03(2) – timing of discovery plan
o 29.1.03(3) – contents of discovery plan
o 29.1.03(4) - Parties have a duty to update the plan if changes are made
o 29.1.03(5) - if the parties don’t agree to the plan, they cannot ask the court
for relief on discovery (i.e. a motion on discovery)
•
Rule 29.2 – proportionality in discovery: determines whether or not parties must
produce documents; the court has factors that it considers
Stages of Discovery
1. Documentary Discovery, Rule 30.02 – we must let other side know that we have a document
relevant to the action, as we must let the other side see it or provide them with a copy.
•
30.01(1) – what document means
o meta-data= all the hidden information behind a document (when it was
created/modified/sent; who created it, etc.). Metadata is important because
anytime a document can be created on a computer, it can be altered. The
information it contains is crucial in litigation, especially with respect to
timing.
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30.02(1) – scope of documentary discovery
o “any matter in issue”- pleadings determine the issues, which then determine
the relevance of documents; this includes the documents you have and used to
have
o “whether or not privilege is claimed” – although privilege bars the admission
of certain documents, privileged documents must still be disclosed in the
discovery plan. There are three types of privileged documents:
▪ lawyer client communication (solicitor client privilege)
▪ litigation privilege (anything prepared in anticipation of or for the
litigation; also known as “work product privilege”)
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▪
settlement privilege (anything communicated in the course of a
settlement agreement, OR in trying to reach an agreement)
o if the document is not privileged, it must be made available to the other side;
usually, lawyers just provide a digital copy to the other side, although it’s not
necessary.
2. Affidavit of Documents – Rule 30.03: an affidavit that discloses and lists the documents (see
Form 30A for an example of an Affidavit of Documents)
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The affidavit typically has three schedules:
o Schedule A: a listing of the documents you’re willing to produce –
30.03(2)(a)
o Schedule B: a listing of the documents you’re claiming privilege for 30.03(2)(b)
▪ You ARE NOT required to produce expert reports that you sought in
anticipation of litigation unless you use it at trial to support your case.
This allows you to seek expert testimony to support various pathways
with your case.
o Schedule C: a listing of the documents you used to have in your care and
control, but no longer have in your possession (i.e. a letter you sent and you
no longer have - 30.03(2)(c)
o Schedule D: comes into play in simplified procedure (Rule 76)
▪ In this schedule, you must list witnesses – people who have knowledge
pertaining to the action
▪ *You don’t have to do Schedule D is a normal action
•
You must attach a lawyers certificate (30.03(4)) to the affidavit.
o The certificate is essentially an undertaking= an irrevocable promise made by
the lawyer regarding the accuracy of the affidavit of documents.
•
Remember: you must attach any documents that are RELEVANT, even if they don’t
help your case. You must help your client determine what documents that they
possess are relevant to the action. Note 30.03(1(5) – an affidavit of documents
shouldn’t be filed unless it’s relevant to an issue on a pending motion or at trial.
•
•
If the affidavit is incomplete, the other side can bring a motion to the court.
If you don’t list a document in the affidavit, the court will be hesitant to allow you to
use it later on.
•
If you want production of documents from non-parties (third parties), they can
directly request it from the party. If they don’t comply, you can bring a motion to the
court to compel them to produce such documents
21
Avoid boilerplate language in affidavit of documents (Grossman v Toronto General Hospital)
Fact
The family of a patient who was missing for 12 days at hospital was
found dead in air duct shaft. Family sued hospital for negligence. The
hospital delivered an affidavit of documents asserting SC and
litigation privilege over a broad class of documents. None of the
documents for which privilege was claimed were particularised. In
dismissing the hospital’s appeal from a decision of a master ordering
production and full particulars of the documents for which privilege
was claimed.
Big issue: Under Schedule B, they have boilerplate language.
Ratio
Boilerplate language should be avoided in Schedule B.
The answer made in the second part of the first schedule is a
mere boilerplate calculated to conceal all and any documents
from inspection. The result was to deprive opposing counsel of any
basis for challenging the privilege claimed. Equally, if a challenge
had been made, no court could have decided it, without resorting to
order production of all the documents referred to.
Furthermore, “[t]he integrity of the system depends on the
willingness of lawyers to require full and fair discovery of their
clients. The system is, in a sense, in the hands of the lawyer. The
opportunity for stonewalling and improper concealment is there.
Some solicitors grasp it. They will make only such production as can
be forced from them. That is bad practice. It can work real injustice.
It causes delay and expense while the other side struggles to see that
which they had right to see from the first. In such a contest the
advantage is to the long purse. The worst consequence is that the
strategy is sometimes successful, giving its perpetrators a
disreputable advantage. The practice must be condemned. If it
were widespread it would undermine the trial system.
22
MANDATORY MEDIATION
Meditation differs from arbitration/litigation because
•
•
It’s not binding on the parities
It’s accomplished with a mediator (a neutral third party) who comes in to help the
parties resolve the dispute, but NOT on the merits of the dispute. The only goal is
resolution
Mandatory mediation - Rule 24.1
•
24.1.04 – Mandatory mediation only applies in Ottawa, Windsor, and Toronto
because they have the largest volume of cases in the system with significant delay
•
24.1.09(1) - Parties have 180 days to appoint a mediator after the first defence has
been filed; if you don’t, the system will appoint one for you from the mediator list
(24.1.08)
o Most of the mediators on the list are not lawyers. It’s always best to appoint
your own mediator.
o However, you can use whoever you want to mediate if you pay.
Benefits:
•
•
•
•
Puts power into hands of people themselves
Quicker process
Can save money, potentially
It’s informal
Disadvantages:
•
•
Stretches out the process; adds another step
Raises the costs
o Lawyers have to prepare a Statement of Issues to prepare for mediation, then
they must attend a three-hour mediation, which all costs money
•
•
Takes away the power from the parties since it’s mandatory and not voluntary
Loses precedential value (case law) if everything gets mediated
Mediation & the Statement of Issue
•
24.1.10 – statement of issues: what you must file in anticipation of mediation
o must be served at least 7 days in advance on the mediator AND the other side
23
o plaintiff and defendant must file a statement of issues; plaintiff must also
attach copy of the pleadings
o this document gives a fell for each side’s case
o the lawyers AND their clients are required to attend the mediation. If you
don’t attend, the mediator can write you up for non-compliance, and that can
be used by the other party in a motion to compel compliance OR to strike out
certain pleadings OR make an order that the court thinks is justified
•
Two approaches to mediation:
o mediator reads rules of mediator, then ask each side to state the case (even
though it was already in the statement of issues), separate parties into rooms
and mediator goes back and forth trying to broker a deal
o some mediators eliminate the first part and go straight to brokering the deal
•
24.2.14 – confidentiality: all communications at mediation session and mediator’s
notes/records shall be deemed without prejudice settlement discussions. This is
related to what happened in Rogacki v Belz.
•
30.1 - Deemed undertaking rule
o Deemed= we will not use the information we gained during discovery process
for any process other than that litigation
o Undertaking= an irrevocable promise
When a person violates confidentiality (24.2.14) & deemed undertaking rule (30.1) (Rogacki
v. Belz)
Fact
After the mediation, Belz published in his newspaper that no
settlement was reached in mediation. Rogacki filed motion saying
that Belz violated 24.2.14 AND 30.1 The motions judge found Belz
to be in contempt of court but court of appeals overturned that
decision.
Issue
Can you compel mediator to produce his notes? Is the person who
didn’t sign subject to the settlement?
Holding/ Ratio
Court found Belz did not violate either rule. There wasn’t any
prejudice to the administration of justice because Belz didn’t
report on what happened or what was said; he only reported on
the outcome of the mediation. Court of Appeal emphasized
importance of goal in reaching settlement and confidentiality in that
process.
24
If mediator notes can be compelled in discovery (Rudd v Trossacs Investments)
Fact
Mediation resulted in settlement and settlement docs were filled out.
One of the Ds didn’t sign the minutes of settlement. A motion was
brought to bring the ntoes of mediator to show that it was intended
that the D who didn’t sign wanted to settle.
Issue
Can you compel mediator to produce his notes? Is the person who
didn’t sign subject to the settlement?
Holding
Trial: It may be necessary to compel discovery of mediator notes to
maintain the administration of justice.
Appeal: Upheld strict interpretation of rule 24.1. The mediator’s
notes cannot be used as evidence.
•
•
COSTS is the number one advantage that the mediator has
KEY POINT is nothing in mediation is binding and you don’t have to accept the
mediator’s proposals
25
Electronic Discovery
12 Sedona Principles that govern electronic discovery
1. Electronically stored information is discoverable.
2. In any proceeding, the parties should ensure that steps taken in the discovery process are
proportionate, taking into account (i) the nature and scope of the litigation, including the
importance and complexity of the issues, interest and amounts at stake; (ii) the relevance of the
available electronically stored information; (iii) its importance to the court’s adjudication in a
given case; and (iv) the costs, burden and delay that may be imposed on the parties to deal with
electronically stored information.
3. As soon as litigation is reasonably anticipated, parties must consider their obligation to take
reasonable and good faith steps to preserve potentially relevant electronically stored information.
4. Counsel and parties should meet and confer as soon as practicable, and on an ongoing basis,
regarding the identification, preservation, collection, review and production of electronically
stored information.
5. The parties should be prepared to produce relevant electronically stored information that is
reasonably accessible in terms of cost and burden.
6. A party should not be required, absent agreement or a court order based on demonstrated need
and relevance, to search for or collect deleted or residual electronically stored information.
7. A party may satisfy its obligation to preserve, collect, review and produce electronically stored
information in good faith by using electronic tools and processes such as data sampling,
searching or by using selection criteria to collect potentially relevant electronically stored
information.
8. Parties should agree as early as possible in the litigation process on the format in which
electronically stored information will be produced. Parties should also agree on the format,
content and organization of information to be exchanged in any required list of documents as
part of the discovery process.
26
9. During the discovery process parties should agree to or, if necessary, seek judicial direction on
measures to protect privileges, privacy, trade secrets and other confidential information relating
to the production of electronic documents and data.
10. During the discovery process, parties should anticipate and respect the rules of the forum in
which the litigation takes place, while appreciating the impact any decisions may have in related
actions in other forums.
11. Sanctions should be considered by the court where a party will be materially prejudiced by
another party’s failure to meet any obligation to preserve, collect, review or produce
electronically stored information. The party in default may avoid sanctions if it demonstrates the
failure was not intentional or reckless.
12. The reasonable costs of preserving, collecting and reviewing electronically stored
information will generally be borne by the party producing it. In limited circumstances, it may be
appropriate for the parties to arrive at a different allocation of costs on an interim basis, by either
agreement or court order.
27
Motions and Disposition without Trial
•
•
Motion= asking the court for their assistance
Interlocutory steps= steps along the way up until the trial; it’s not the final order, which
disposes of the action
•
•
37.02 – a judge has jurisdiction to hear any motion
37.02(2) – a master can hear motions with some exceptions; masters have same powers as
judge except for what’s set out in the rule. NOTE: a master CANNOT throw someone in jail
for contempt of court. Windsor no longer has masters.
•
37.04 – where you can make motion
The motion record consists of the following required documents (to make a motion):
•
•
•
•
Notice of motion
Affidavit
Exhibits
Statement of Claim
Content of motion record – Rule 37.10(2)
•
•
4.07.1 – motion record back sheet (only one) is light blue cardstock
37.10 – content of motion record
o there is also a Responding Party Motion Record: 4.07.1 for formatting of
responding party motion record (also uses light blue back sheet) and
37.10(3)
•
37.10.1 – confirmation of motion
Making a Motion
•
•
To make a motion, you must file a Notice of Motion – Form 37A
37.06 – content of notice of motion
o Motions are all done by way of paper evidence; there is not usually oral evidence
o You can make a motion on any date that the court you’re bringing the motion does
motions day
•
37.07- You must serve your notice of motion on the other side unless the circumstances
don’t warrant personal service. If service wasn’t made but it should have been, the court can:
dismiss the motion, adjourn the motion, or impose cost sanctions (see 37.07(5))
•
motions must be filed seven days in advance of when it will be made; DOES NOT include
Saturdays and Sundays
28
Security for Costs – Rule 56
•
•
•
Comes from the concept that loser picks up the bill
ONLY DEFENDANTS can bring a motion for security of costs
56.01 – when security for costs is appropriate
o for example, if a D doesn’t reside in Ontario, they don’t have any assets in
Ontario, and the D is successful, the court will take the money that the
plaintiff gave to the court in anticipation of litigation in order to ensure that P
pays D’s costs. If P ends up winning, court gives P their money back
Exhibit= a way of giving a document to the court to consider in evidence
Depending on the motion, you may also need to submit a factum. This is often a judgment call
for the lawyer. See 4.07(5) for formatting of moving party factum (white) and responding
party factum (green)
Summary Judgment Motions – Rule 20
•
•
Used to isolate and terminate claims that are factually unsupported
P will move for summary judgment if the facts support P’s case
o If P is moving party, P has burden on balance of probabilities to show the
evidence supports his claim
•
D will move for summary judgment if there is insufficient evidence to support the
claim against him
•
Who has burden? The plaintiff. Even if D is moving for SJ, claiming there’s
insufficient evidence for one issue, P must still produce the evidence saying there’s
sufficient evidence that validates their cause of action.
•
Case law states that judge should assume that all facts are not disputed on a motion
for summary for summary judgment. Parties must put ALL evidence before the court
before making this type of motion.
•
OLD: The test for summary judgment motions used to be “genuine issue for
trial”.
o If there’s an issue of credibility, there’s a genuine issue for trial because
credibility is an issue for the trier of fact to determine to see if witnesses are
reliable and credible. One way for a party to defend/defeat a SJ motion is to
simply raise an issue of credibility.
▪ Over the years, judges became weary of this rule because they were
always being appealed. As such, judges were constantly denying SJ
29
motions, and therefore SJ motions were not accomplishing what they
were designed to do (expedite the process and save costs). Under the
old rule, if you lost on a SJ scale, you would have to pay on the
substantial indemnity scale. Therefore, people stopped brining SJ
motions because the risks were too high.
 Lower indemnity scale (loser pays 66% of costs). v. substantial
indemnity scale (90% of costs)
•
*CURRENT: The current test for summary judgment motions under 20.04 is
“no genuine issue requiring a trial”.
o “Summary judgment motions must be granted when ever there is no genuine
issue requiring a trial. There will be no genuine issue requiring a trial when
the judge is able to reach a fair and just determination on the merits on a
motion for summary judgment. This will be the case when the process (1)
allows the judge to make the necessary findings of fact, (2) allows the judge to
apply the law to the facts, and (3) is a proportionate, more expeditious and less
expensive means to achieve a just result.” (Hyrinak v Mauldin, para 4)
o SCC reaffirmed the purposes of the SJ motion (save costs and time) and
held that the standard is whether there is enough evidence before the judge
that allows them to resolve the dispute, NOT the full appreciation test.
o *THE NEW TEST ALLOWS THE JUDGE TO:
▪ determine issues of credibility
▪ weigh the evidence and draw reasonable inferences from such
evidence.
o SJ motions are evidence-dependent and determined on the balance of
probabilities.
30
Motions
Determination of an issue before trial - Rule 21
•
21.01 – only judges can hear a Rule 21 motion
o the idea is to get issues through the system quickly, efficiently and without
great expense
o ***These motions are not evidence-based; these motions simply determine if
there’s a reasonable cause of action OR defence. The court will presume all
facts are true in these types of motions.
o 21.01(1)(a) – for the determination of a question of law
▪ 21.01(2)(a)- Party cannot submit evidence to support this motion. If
the judge needs a factual context to make, the parties must get leave or
the consent of all parties
o 21.01(1)(b) – strike out a pleading
▪ here, you’re looking to strike out the P’s claim or strike out the
defence. If a pleading is struck out, the case will be dismissed. If a
defence is struck out, it will result in a default judgment
▪ 21.01(2)(b) – no evidence is admissible on this type of motion
o 21.01(3)- D can ask for stay of proceedings under four grounds (stay= the
matter is not dismissed; it’s simply not dealt with)
▪ (a) jurisdiction: if it’s a matter of federal law; if the subject-matter is
▪
▪
▪
the jurisdiction of another court; the issue has no nexus to Ontario
(b) capacity: i.e. suing a minor or suing a individuals as a group that
have no legal basis to be sued together
(c) another proceeding pending: here, you run the risk of getting two
different results and the parties get
(d) action frivolous, vexatious or abuse of process: no reasonable
cause of action
Police’s “duty to warn”, the breach of which creates reasonable cause of action (Jane Doe)
Fact
Jane Doe lived in Toronto on the third floor of an apartment building.
She was raped by the “Balcony Rapist”. He broke into her apartment
through her sliding balcony door. Police knew his modus operandi
and knew that people who lived on the third floor were the potential
victims of his crime. They didn’t want to tip the rapist off that they
had a lead on him so they didn’t disclose any information to the
public. When Jane Doe found that the police knew and didn’t tell
31
women who lived on third floor of apartment buildings with
balconies, she sued the Metropolitan Toronto Police Department. In
her law suit, she stated that she was suing for the tort for the “failure
to warn”. She alleged they had a duty to warn her because she fell
within prescribed category; they didn’t warn her; they breached their
duty to her; and she suffered damages as a result.
The police moved under 21.01(1)(b) claiming they didn’t have a duty
to warn, and therefore, the court should strike Jane Doe’s pleading.
Issue
Is the breach of a “duty to warn” a reasonable cause of action under
21.01(1)(b)? Yes – the case may proceeding. (It didn’t determine
Reasoning
The court said that although this is novel, the duty to warn discloses
a reasonable cause of action. It is similar to tort, negligence, etc.
There’s a special type of relationship between police and potential
victims, and they should have warned.
Importance
These types of cases create new types of duties/torts, the breach
of which cause reasonable causes of actions.
Evidence on motions and applications - Rule 39
•
39.01- evidence by affidavit
o 39.01(4): This type of affidavit can be based on your actual knowledge
AND reasonable belief. Note on reasonable belief: you can only use hearsay
evidence if you state the source of the information.
o 39.01(6): making a motion without notice (ex parte) requires the moving
party to produce all the necessary evidence and tell both sides of the story
•
39.02- allows cross-examination on the affidavit because it is through this process
that the evidence gets tested. The affidavit is the examination-in-chief.
o 39.02(02) – a party who has cross-examined an affidavit cannot deliver
another affidavit
o party must exercise their due diligence under this rule
•
39.03- examination of a witness
32
Sample Affidavit
•
Bill of costs= what the legal proceed is going to cost or what it has costed. This is
used on both a motion for security of costs (use a draft bill of costs) and once a party
has won and is seeking costs
•
•
Fees= what lawyer is worth and what he’s charged
Disbursements= money paid out of pock to make the litigation work (i.e. filing,
photocopying, process server, etc.)
Interlocutory Relief= an order made in the midst of litigation that DOES NOT dispose of the
matter. See types of interlocutory relief below.
Injunction - Rule 40.01
•
•
A order that makes a party do something or stop doing something
These types of orders are made under s. 101 of the Courts of Justice Act
Test for injunction (RJR-MacDonald Inc. v. Canada (A.G.))
Fact
RJR wanted injunction stopping Parliament from passing legislation
regarding tobacco product labelling. SCC
Ratio
Test to determine if an injunction should be granted:
1. A preliminary assessment must be made whether there is a serious
question to be tried. The claim is something more than frivolous,
there is substance for what the party alleges.
2. Would the moving party suffer irreparable harm if the order is
not granted? The moving party has to convince the court that the
failure of the order being granted will result in irreparable harm.
Financial damage alone isn’t sufficient.
3. Balance of convenience – if the court grants this relief, will it
cause more harm to the responding party of the moving party?
Notes
***If a party is granted an injunction, and it causes irreparable
harm to the other side, they must pay them. The party who is
seeking an injunction must include that they will pay such
damages in their affidavit when they originally ask for this relief.
Types of injunctions
•
Mareva injunction: stops a person from disposing of assets or taking assets out of a
jurisdiction. Here, you want an injunction to freeze assets within a jurisdiction
33
Appointment of receiver - Rule 41
•
Receiver= someone who will come into take control of a company because it was
imposed by the court (i.e. when a company goes bankrupt, the court appoints a trustee
or receiver)
Rule 42- certificate of pending litigation
•
•
•
Formally known as “lis pendons”
Deals with real property (land)
Example: Buyer wants to sell land. Strikes deal with seller. Seller reneges. Buyer
really wants that property because it’s special. Seller will sue for specific
performance – asking the court to enforce their contract in order to get that property.
It takes a long time for the law suit to go through. The title of land is still in buyer’s
name and another person comes along and offers buyer a lot of money. Buyer sells it
to this other person. The original buyer could have got a certificate of pending
litigation before starting litigation. It is attached to the land’s title in order to
preserve the land until the litigation is resolved.
•
Rule 42.01(3) - this motion is brought without notice so that the buyer doesn’t sell the
land or transfer it
•
Once obtained, the plaintiff (buyer) must attach the certificate to the originating
process, and all of it is served on the defendant (seller).
•
In the motion to get the certificate, the moving party must disclose all facts of the
parties’ relationship and business deals relating to that property, especially since
this motion is done without notice.
358426 Ontario Ltd. v. Liappas
Facts
Ds moved for order to discharge the certificates based on 42.02(1) on
grounds that P didn’t disclose all facts.
Holding
Court received untrue picture of party’s existing business relationship
with each other; therefore, the certificate was set aside.
Rule 43- Interpleader
•
•
Person wants to ensure that the court knows they have an interest in the land
Third party has interest in the land and they want to make sure that the interest is
protected; or at least heard by the court, so they interplead—bring a motion to be
heard and have their interest protected.
34
Interim recovery of personal property - Rule 44
•
Where you want the court to order that property be returned before a decision on the
merits
Test for Rule 44 (Clark Door of Canada Ltd. V. Inline Fiberglass Ltd.)
Fact
P commenced action. P gave D a dye (big piece of metal to make
parts with). D was producing parts for the P. They got into dispute.
P’s supply was running low because D was producing parts fast
enough. P sought injunction for interim recovery of the dyes because
without them, they’d go out of business or it would cost them a lot
more to get them made.
Ratio
Test to determine if an Interim recovery of personal property
should be granted:
The test is one of substantial grounds, not reasonable grounds.
1. Moving party must prove lawful ownership or entitlement or
possession of property.
2. Moving party must show that property was unlawfully taken
or detained.
3. Balance of convenience - if the court grants this relief, will it
cause more harm to the responding party of the moving party?
Interim preservation of property - Rule 45
•
Situation where the property is going to be destroyed so party wants injunction to
preserve the property
•
Test to determine if an interim preservation of property should be granted:
o 1. P has an extremely strong prima facie case (on it’s face)
o 2. The potential damage is actually very serious for P
o 3. It’s clear that D possesses the property
o 4. It’s very possible that D will destroy the property before a motion can be
made. (Nintendo Case)
35
Discovery (Oral)
Deemed undertaking - Rule 30.1 (an imposed irrevocable promise)
•
Any info gained through discovery process can only be used in context of litigation
for which it was produced
•
•
•
You can’t use it or threaten to use it for another purposed
This rule is imposed on parties and its lawyers
ONLY applies to things (documents) that are brought out in discovery. If it’s brought
out at trial, it becomes part of public record, and this rule doesn’t apply.
How Rule 30.1 comes into play (Goodman v. Rossi)
Fact
P was employed as a real estate agent and was terminated. She
brought action against employer for wrongful dismissal. Parties are
in discovery process. D, as he is required, produces documents in his
possession to P that are RELEVANT to the PLEADINGS. D
produces report that employment made to Minister of Consumer
Relations, which governs conduct of real estate agents, where
employer stated that P’s job was less than acceptable and her ethical
conduct was questionable in many instances. After receiving the
document P, P starts a suit for defamation. D brought motion for
summary judgment to dismiss the defamation action based on Rule
30.1, saying that P could not use the report from the wrongful
dismissal since it was produced as part of discovery in another suit.
Holding
Upheld and extended principle underlying Rule 30.1 to Ontario.
Notes
Once a document is produced as evidence is at trial, it becomes
part of public record and Rule 30.1 no longer applies. Therefore,
if P’s wrongful dismissal suit had already gone to trial, she would
have been able to use the employer’s report as the basis of her
defamation action.
Exception to Rule 30.1:
A party can use information gathered during discovery in order to impeach a witness.
Examination for discovery - Rule 31
•
In Ontario, you can only examine the parties for discovery. If you want to examine a
non-party, you must get leave of the court.
•
Discovery is fairly wide open but within the context of the pleadings.
36
•
If a question asked is objectionable, the lawyer can object, state grounds for the
objection, and the matter is supposed to move on. There isn’t a judge or anyone
present who can make a determination. The lawyers must govern themselves and act
civilly.
•
If your client is asked something that they don’t know answer to, their lawyer can
undertake to provide the answer (or document) that the opposing party is requesting.
The lawyer then must make their best efforts to provide them. If the party doesn’t
want to answer the question or document, they may refuse by making a refusal, and
then stating the grounds for such refusal (usually because it’s not relevant). There’s
also a middle road – taking it under advisement, which is basically a refusal but you
take it under consideration.
•
•
31.02 – form of examination
31.03 - who may examine and be examined
o Plaintiffs cannot examine other plaintiffs in discovery because they are not
adverse in interest. This also applies to defendants.
o Defendants may examine ALL plaintiffs, no matter how many there are.
•
31.03(9) – limiting multiple examinations
o each party only gets one examination of each party unless they receive leave
by the court
o if there is one plaintiff and multiple defendants, each defendant can examine
the plaintiff if they are represented by different lawyers, but usually, the
defendant lawyers ask different questions
•
•
defendants can also examine other defendants if there are cross-claims between them
31.01(2) – examining a corporation and examining more than one person from
the corporation
•
31.04 - Examinations are initiated by notice of examination
o Does not need to be served personally; usually sent to other party’s lawyer by
fax or email
o Whoever serves the notice first gets to go first with their examination. The
other side can’t examine until the first examination is done UNLESS parties
agree otherwise. It’s generally a cooperative process.
•
31.05 – time limit not to exceed seven hours (no matter number of parties
requiring examination)
•
31.06 – scope of examination (goes back to the issue of relevancy and the
pleadings)
37
o 31.06(2) – identifying persons having knowledge: prevents parties from
hiding witnesses that have knowledge
o 31.06(3) – expert opinions
•
If a party doesn’t divulge information in discovery, they can’t use it in trial unless
they get leave by the court.
•
•
31.07 – failure to answer questions
31.08 – effects on when lawyer answering questions. If client then answers and
then repudiates, the client’s answer trumps.
•
31.09 – duty to correct answers
The purpose of discovery is to:
•
•
•
Impeach witnesses since discovery is sworn evidence
Use it as part of your case against the other side
There may be times that you have to get leave by the court to use evidence not
obtained in discovery (i.e. if a party dies)
Principles relevant to discovery (Forliti (Guardian ad litem of) v. Woolley)
Facts
Medical case where there were objections taken to the questions
asked in examination.
Analysis
The court went through the principles relevant to discovery:
1. scope of discovery
2. relevancy
3. a person in discovery need not give their opinion
4. hypothetical questions don’t need to be answered EXCEPT for
expert testimony
5. counsel may object to a question that is confusing, vague,
overly broad or misleading. When objecting, however, counsel
shouldn’t make comments that are derogatory or demeaning –
they should do so civilly.
Reinforces rule of option to examine multiple officials from corporation (Baylist Estate v.
AG of CAN)
Fact
Situation where they wanted to examine another representative on
basis that rep chosen wasn’t right person – there was a better person.
Holding
38
Updating evidence (Burke v. Gauthier)
Fact
P alleged in discovery that he was injured in accident but was able to
resume activities at same extent as before injury. Then, at trial, P
states that shortly after discovery, his pain got worse. He could not
longer work the full day, or hunt, or snowmobile, or fish as he
usually does. What P represented at trial was vastly different than
that he said at discovery.
Issue
Should P’s new evidence about his updated health status be
admitted? No – the change of P’s condition isn’t allowed into
evidence.
Holding
P didn’t follow the rules and didn’t ask for adjournment to correct
record/discovery.
Para 18 – Parties prepare their cases based on the evidence found in
discovery and it wouldn’t be fair to ambush the other side who did
not know anything of P’s different health condition.
Ratio
Parties must update information in discovery if it changes once
discovery is complete, but before trial commences.
Most discovery is oral because it’s more beneficial.
•
Downside of written discovery
o a person can calculate the answer
o lawyer writes the responses, so you’re not getting a true answer from the party
•
Benefits of oral discovery
o there’s more flexibility with the answers
o a lawyer can gauge how good a witness they will be at trial based on their
voice/body language, etc.
39
Other forms of discovery
Inspection of property - Rule 32
•
Allows for orders for inspection by way of motion if the parties can’t agree to
inspection of real or personal property
•
Callas: P got injured in go-cart accident and commenced law suit. Two years later,
during discovery, P wanted to examine the go-cart that he was driving at time of
accident. Ds objected on basis that it would be prejudicial. Go-cart was already in
operation since the accident so in essence, it wasn’t the same go-cart as it was at the
time of P’s accident. P brought motion to court to have Ds produce go-cart for
inspection. P argued that whatever evidence that the inspection of go-cart produces is
a matter of weight. P wanted to inspect the go-cart to understand how it works (the
operation system, the breaks, etc.) Court allowed for the inspection.
•
Lagerkiss v. Labatts: Person was having beer and bottle exploded while he was
drinking it. The explosion made him lose vision in one eye. P commenced action. P
wanted to inspect the operating line where the bottles are produced. P obtained an
order to inspect the bottling plant and to take still and motion pictures during their
inspection. D appealed that decision because they didn’t think it was necessary and it
would reveal trade secretes. On appeal, allowed for the still/motion pictures because
they didn’t see why it would be damaging to D.
Spoliation
•
Spoliation = where a party intentionally or unintentionally allows evidence to be
damaged or altered.
•
The principle behind this is the inference (legal presumption) that a party destroyed
the evidence because it was damaging to their case, and so they wanted to hide it
from the court.
•
Originally, it was a rule of evidence, but in Spazak v. Imperial Tobacco, the court
allowed the tort of spoliation as a cause of action.
•
Cheung v. Toyota Candaa: There was car accident with Toyota minivan. Ds failed to
preserve van and took out destructive testing on the rear axel of the van which
prevented P from looking at the van. Court found that there was evidentiary issue
with spoliation. Spoliation begins with a presumption that party destroyed
evidence purposefully, and that party has the burden to prove they did not
destroy the evidence.
40
Medical examination of party - Rule 33
•
Party can bring motion asking for physical or mental examination of a party IF their
mental/physical condition is in question in the proceeding
•
•
33.05- Only doctor and examinee is allowed in the room
33.06(1/2) - Doctor must provide a copy of the report to the requesting party. Party
must then serve the report on all other parties.
41
Costs & Fee-shifting
*EXAM TIP:
1. Who is paying whom; 2. on what scale; 3. For what period of time (e.g. throughout).
Introduction
•
Costs is about the concept of fee-shifting: we’re shifting who pays the fees in
litigation based on winners and losers
•
General principle is that the loser pays the winner their costs, subject to many
exceptions/rules. This principle recognizes the risks of litigation, and continuing
litigation when not necessary.
o Unlike in the US in civil litigation matter where they don’t have fee-shifting,
there is more freedom to litigate because there is no risk
•
+/- of fee-shifting:
o +: prevents frivolous claims
o -: acts as a barrier to the justice system for individuals who can’t afford the
risk of costs
•
Costs derive from S. 131 of Courts of Justice Act: puts costs in the “discretion of the
court” despite the general principle. Courts retain the ultimate power in awarding
costs and will deviate the general rule when it deems appropriate.
Different scales of costs
•
*partial indemnity costs: approximately 2/3 (60%) of the other side’s costs.
o This type is the standard amount that courts award.
o This used to known as party and party costs
•
substantial indemnity costs: approximately 90% of the other side’s costs.
o This type used to be known as solicitor-client costs
o This type is awarded:
▪ 1. if a rule or Act awards substantial indemnity costs (see Rule 20.06 –
summary judgment)
▪ 2. If there is a punitive element to the conduct of the litigation; the
court wants to punish the way the parties have handled the litigation
(e.g. if a party has delayed, acted high-handedly, was unprofessional,
etc.). The court could also direct the costs for misconduct directly to
the lawyer.
 TEST: Sanctionable conduct in the action includes action that
is reprehensible, scandalous or outrageous.
42
▪
•
3. If a party alleges in their pleadings another person acted
fraudulently or in bad faith (attacks their character), and they don’t
have reason to do so, or didn’t prove it
full indemnity costs: all costs
What do each of these three words means?
•
Costs=
o 1. Legal fees: what lawyer charges for their legal/staff services; generally, this
is what the lawyer is earning on the file
▪ the model is commonly an hourly model
o 2. Disbursements: actual expenses (money out-of-pocket ) paid for by the
lawyer on your behalf (e.g. court filing fees, courier costs, photocopying,
faxing)
•
Indemnity= security or protection against a loss or other financial burden; an implied
agreement to reimburse someone for costs they’ve incurred due to particular
circumstances
Sanctioning Lawyers
•
In civil matters, lawyers are sanctioned through the concept of costs. Although the
court may direct that the lawyer pays the fee for such sanction, it’s still administered
through the costs, and the client can be on the hook for the bad conduct of their
lawyer. Then, it will be up to the client to work out with their lawyer who should pay.
•
The court must first make a finding that the lawyer acted improperly before the
lawyer is sanctioned.
Plaintiff Bears the Risk
•
Indemnity rule puts the greater risk on the plaintiff because they will incur the costs if
they don’t prove their case
P wins
Indemnity (CAN)
No Indemnity (USA)
Damages
won
35,000
35,000
Partial
indemnity
5,000
0
Pay lawyer
-10,000
-10,000
Total
30,000
25,000
43
P loses
Indemnity (CAN)
No Indemnity (USA)
Damages
won
0
0
Partial
indemnity
-5,000
0
Pay lawyer
-10,000
-10,000
Total
-15,000
10,000
Types of damages
•
BEFORE THE ACTION: The court can sanction a party’s conduct leading up to the
litigation through punitive damages. The other party will plead this in their pleading
(e.g. if in a car accident case, and the insurance holder sues the insurance company,
the insurance company is calling the holder bad names on the phone.
•
ONCE ACTION HAS STARTTED: The court can sanction the conduct of the
parties of the action through substantial indemnity costs.
Cost of Proceedings - Rule 57
•
Overarching principles of award costs are reasonableness and proportionality
•
57.01: In exercising its discretion in award costs, the court may consider, in addition
to the result of the proceeding:
o The principle of indemnity
o The amount of costs that the losing party could reasonable expect to pay
•
57.02: The court retains the discretion to award costs to the losing party, as well as to
deny award costs to the successful party.
•
57.02, pg. 1197, Sanderson and Bullock orders: occurs when court is awarding
costs where there are two defendants, one successful
•
•
57.07: liability of lawyer to pay costs
The final judgment has nothing to do with costs (you could sue for $1M, only win $1,
but as long as you won the case, the court may award you costs on the partial
indemnity scale because the COSTS incurred are the same).
Offer to Settle Cost Consequences - Rule 49
•
•
Costs are calculated from the very moment that the claim is issued
At any time during litigation, you can offer the other side the settle as long as
44
o it’s in writing
o the offer hasn’t expired
o 49.03: served seven days in advance of the hearing. If it is not served seven
days before the hearing commences, the costs consequences referred to in rule
49.10 don’t apply
•
•
Both parties can make offers to settle.
The three most costly times to pay for a lawyer are: 1. Discovery; 2. pre-trial
preparation; 3. Trial. Therefore, when you make an offer to settle, you want to make
it available a substantial amount of time before trial (a few weeks before trial). You
also want to make sure it expires shortly after the commencement of trial
•
•
An offer can also be withdrawn in writing.
49.10 – costs consequences of failure to accept
o 49.10 (1) – plaintiff’s offer: the court uses to this rule to penalize a defendant
for not taking a good deal AND a plaintiff for not offering a good deal
▪ FAILURE OF D TO TAKE A GOOD DEAL: If offer is made by P
to D half-way through trial, and D loses but the offer was a good deal
for them, D must pay substantial indemnity costs from the time that
the offer was made until the final judgment. D must also be partial
indemnity costs from the time the issue was claimed up until when
▪
the offer to settle was made by P. ***This is assuming that P got a
judgment as favourable or more favourable than the terms of the
offer to settle.
FAILURE OF P TO OFFER A GOOD DEAL: If P didn’t obtain a
judgment as favourable as or more favourable than the terms of
the offer to settle, meaning P was awarded less than what he offered,
(or if P loses altogether), the D only pays the P on the partial
indemnity scale throughout the proceeding.
 Here, the offer to settle doesn’t come into play because P didn’t
obtain a judgment for the same amount or more than the offer
had advanced.
o 49.10(2) – defendant’s offer
▪ FAILURE OF D TO MAKE A GOOD DEAL: If P obtained a
judgment as favourable as or more favourable than the terms of D’s
offer to settle, D will be liable for costs on the partial indemnity
scale for the entire proceeding (from issue being claimed up until
final judgment).
45

▪
Here, the offer to settle doesn’t come into play because P didn’t
obtain a judgment for the same amount or more than the offer
had advanced.
 Furthermore, substantial indemnity scale NEVER COMES
INTO PLAY when the D makes an offer
FAILURE OF P TO TAKE A GOOD DEAL (DOUBLE
WHAMMY RULE): If P obtained a judgment as favorable as or less
favourable than the terms of D’s offer to settle, it’s a double whammy
because:
 The P loses out the extra money that D was offering

▪
•
•
*The D pays P on the partial indemnity scale from the
moment that issue was claimed up until the offer was made,
then P pays D on the partial indemnity scale from the
moment the offer was made up until the final judgment
FAILURE OF P TO TAKE A GOOD DEAL: If P doesn’t receive a
judgment at all, the P pays D on partial indemnity scale throughout.
49.06: the court is not informed of any offers to settlement and those amounts
49.13: court retains discretion in using an offer to settle into consideration when
awarding costs
When the rule on costs should be applied (Niagara Structural Steel)
•
While the courts have discretion to depart from the cost consequences set out in the
offer rule, they are reluctant to do so and generally will not do so unless the interests
of justice so require.
Disclosure of offer to court - Rule 49.06
•
No statement of fact that an offer to settle has been made should be contained in any
pleading
Penalty for not brining action under simplified procedure - Rule 76.13
•
76.13(2): Claims between $75,000-$100,000 should be brought through a
simplified procedure so that matters don’t cost as much and matters are
conducted expeditiously. If a P fails to bring action under a simplified
procedure, the court must penalize the P by denying their costs if they won,
UNLESS the court was satisfied it was reasonable for P to do so (note 2
exceptions).
46
o For example, if P sues D for $200,000 but is awarded $75,000, the P should
have brought an action under a simplified procedure, which means P must be
penalized because it made both sides incur additional costs. In this case, the
court can choose to not award costs to P unless the court was satisfied that it
was reasonable for the P to do so.
•
76.13(6): P may also be subject to pay all of D’s costs, including substantial
indemnity costs, if D made an offer to settle.
Penalty for brining action in wrong court - Rule 57.05
•
Claims under $25,000 should be brought in small claims court. If P fails to bring
an action in small claims court and should have, the court MAY deny awarding
P costs.
o For example, if P sues D for $200,000 but is awarded $20,000, the P could
have brought an action in small claims court , which means P must be
penalized. In this case, the court may order that P does not recovery any costs.
Small Claims Court Rules
•
•
These rules are NEARLY IDENTICAL to Rule 49
14.02 – making offers to settle
o offer must be at least seven days before the trial
o offer hasn’t expired
o offer was made in writing
•
14.07 – costs consequences of failure to accept offers to settle
o 14.07(1): when P makes offer
o 14.07: when D makes offer
o *DIFFERENCE BETWEEN THESE RULES AND RULE 49: Small
claims court doesn’t distinguish between PI and SI scale costs. If a P/D fails to
take a good offer, then the court MAY force them to pay DOUBLE the costs
awardable.
Champerty & Maintenance
•
These are old concepts about how litigation is funded. They used to be frowned upon
because you shouldn’t have non-parties involved in litigation.
•
Champerty= a party not related to law suit is pursuing the law suit so that they can
take part of the claim; this is a subcategory of maintenance
47
o Black’s Law Dictionary: A bargain made by a stranger with one of the parties
to a suit, by which such third person undertakes to carry on the litigation at his
own cost and risk, in consideration of receiving, if he wins the suit, a part of
the land or other subject sought to be recovered by the action.
•
Maintenance= someone who is not a party is paying for the litigation or supporting
the parties
•
These concepts are no longer valid…now, we rely on the concept of contingency
fees.
Contingency Fees
•
When a lawyer isn’t getting paid until here is a judgment, at which point the lawyer
takes a percentage that is awarded or settled if there is a settlement
•
Class actions= a class of plaintiffs who jointly sue a defendant. These types of cases
highly rely on contingency fees. They also involve maintenance – for example, an
investor becomes a shareholder in a class, and this is seen as generally positive, as it
increases access to justice.
Courts must be careful in ordering costs against a lawyer (Young v. Young)
•
A dispute in a JW family regarding the children because one parent wanted to raise
children as JW and the other not. Lower courts awarded substantial indemnity costs.
There were also costs against the lawyer.
•
The courts must be careful in award costs against the lawyer. The lawyer must be a
zealous advocate. The court overturned decision against the lawyer.
Security for costs - Rule 56
•
•
56.01(1): A defendant may bring motion for security of costs
if a party is ordered to pay and they don’t, typically the action is shut down
Enescu v. Wawnesa Mutual Insurance Co.
Facts
P was a bankrupt party and didn’t have assets. Action was being commenced
on behalf of the creditors.
Holding
Court found that P was a nominal P, and neither corporate D, had
substantial assets in Ontario. Because of his financial situation, any assets
were solely for creditors.
48
Creditors refused to pay security for costs. Court ordered for security for
costs had to be made within 60 days.
Assessment of Costs (aka Taxation of Costs) - Rule 58
•
The officer’s role is to listen to arguments as to what the costs should be and make
recommendations to the judge.
•
The judge can do two things after a HEARING:
o 1. Order that the costs be assessed. Costs are then assess by an Assessment
Officer (another office of the court). The officer than makes a ruling as to
what is appropriate based on the factors in Rule 58.06.
o 2. Order the amount of costs.
•
•
58.06 – factors that the assessor will take into consideration when assessing costs
Under the Solicitors Act, a client can have a lawyer’s account assessed, and a lawyer
can have his/her own account assessed. You send your account to the client, they look
at it, and lawyer can explain the work they did. Then there is a mini-trial regarding
the account if necessary.
o If client doesn’t pay, you can get order from the court forcing them to pay.
There is a hearing with an assessment officer, explain why your claim is
legitimate, and if the client shows up, they explain why they haven’t paid, but
usually they don’t show up.
49
Setting Up for Trial
Listing for Trial – Rule 48
•
•
•
•
Any party can set matter down for trial. P or D may elect to do so
They must file a trial record and serve it.
Backpage must be light blue
Trial record must contain:
o Pleadings of the action: Statement of claim; Statement of defense; crossclaims,
counterclaims, etc.
o Any motion order (judge ruling on motion; interlocutory) [order vs. a judgment—
judgment end of an action or application]
o A sworn statement that pleading contains everything it is supposed to
•
Once party is set down for trial by party, they cannot have any more motions or
discovery—you are saying this is ready for trial.
o However—you still have obligation to provide undertakings
o You also have obligation to fulfill discovery plan, errors that have been
discovered, abandonment of privilege, duty to provide duty obtained...any
ongoing obligation is still in effect.
o But—you can file a motion compelling the other side to comply
•
Once the trial record has been filed, the court must then place case on the trial list.
o Must be placed on trial list within 60 days that matter is set down for trial
o Once on list—all parties are deemed to be ready for trial. Once on list; shall
proceed to trial unless a judge rules otherwise.
o You cannot consent to an adjournment of trial—you need consent from a judge
•
48.14: you have 5 years form commencement of action to set the matter down for trial,
otherwise need a good excuse as to why heavy costs and time have been expended on this
action
o 48.14(4): Within 30 days of 5 year timeframe expiring—a party may file a
timetable with consent of the other party—establishing dates on which motions,
discovery, etc. will be completed, and set a date to set matter down for trial.
o 48.14(5): if you cannot get consent from other party, you may request a status
hearing. Explain to a master/judge why you have not met the deadline. If the court
agrees with you, court will set its own timetable.
•
You can bring motion to bring the action back on if you have it dismissed for delay (48.14)
o Need to explain to court why the action should not be dismissed and why you
missed the deadline.
Pre-Trial Conferences – Rule 50
50
•
•
Generally held within 180 days after an action is set down for trial
Objective of pre-trial is getting it before a judicial officer (a master or a judge) who
generally will state their take on the whole proceeding.
•
50.04: at least 5 days before pre-trial conference, each party shall file with proof of
service, a pre-trial conference brief containing concise statements of the following:
o The nature of the proceeding
o The issues raised and the party’s position
o In the case of an action, the names of the witnesses that the party is likely to call
at the trial and the length of time that the evidence of each of those witnesses is
estimated to take
o The steps that need to be completed before the action is ready for trial or the
application is ready to be heard, and the length of time that it is estimated that the
completion of those steps will take
•
•
50.05(1): Lawyers and clients must attend.
50.05(2): Parties attending must have the authority to settle.
o Attendance can personally, or via telephone/video conference if travel expenses
are too costly
•
There is a no-disclosure rule (just like at mediation)—everything discussed at pre-trial
conference remains confidential—nothing discussed at pre-trail can be used in trial.
•
•
The pre-trial judge cannot hear the trial.
Judge can call pre-trial in the middle of a trial based on evidence heard to that
point.
Admissions – Rule 51
•
Request to admit fact or document
o going to request other side to admit certain facts or documents
o used to produce documents that party does not need to prove at trial—shortens
time and costs of trial
o can be filed with the statement of claim
•
51.04: where party denies/refuses to admit truth or fact or authenticity of a document
after receiving a RTA—the fact/doc is subsequently proved at the hearing, court may take
that denial into account in exercising its discretion respecting costs (can impose costs if
parties refuse to admit facts/docs that are then found to be true)
•
•
51.03(1): you have 20 days to respond to request to admit
51.03(2): if you don’t respond, you are deemed to have admitted the facts
51
•
51.03(3): if you don’t specifically deny the truth of a fact/authenticity of a document,
you are deemed to admit
Trial Procedure – Rule 52
•
52.01: if all parties fail to show at trial—judge can simply strike trial from trial list; if
one party attends, the other doesn’t—trial may proceed without other party.
•
52.03: court appointed experts
o lay witness testifies to what they see
o an expert witness testifies to their opinion based on their expertise
o generally, parties get their own experts
o parties can request, or the judge can do so on his own accord, that court appoint
its own expert to look at whatever the judge wants them to look at.
o Fairly rare.
•
52.04, exhibits: applies generally to physical evidence as opposed to oral testimony
o brought into testimony through witness sitting on the stand
•
52.06(1), exclusion of witnesses: judge may order that witness be excluded from
courtroom until called upon
o they may be biased/slanted by hearing evidence
•
52.07, Order of Presentation in Jury Trial
▪ P makes opening statement first—may request that judge make opening
statement prior to Defendant
▪ Defendant may make opening statement prior to plaintiff introducing
evidence
▪ D may want to plant the seed that everything P is saying is not accurate
o 1. The plaintiff may make an opening address and, subject to paragraph 2, shall
then adduce evidence.
o 2. A defendant may, with leave of the trial judge, make an opening address
immediately after the opening address of the plaintiff, and before the plaintiff
adduces any evidence.
o 3. When the plaintiff’s evidence is concluded, the defendant may make an
opening address, unless he or she has already done so, and shall then adduce
evidence.
o 4. When the defendant’s evidence is concluded, the plaintiff may adduce any
proper reply evidence and the defendant shall then make a closing address,
followed by the closing address of the plaintiff.
52
o 5. Where a defendant adduces no evidence after the conclusion of the plaintiff’s
evidence, the plaintiff shall make a closing address, followed by the closing
address of the defendant
•
52.08 –-Disagreement of Jury:
o (1) Where the Jury disagrees, makes no finding on which judgment can be
granted; or answers some but not all questions directed or gives conflicting
answers, judge may order a new jury.
o (2) if some of answers answered are sufficient, judge may render a judgment
when not all questions were answered.
Evidence at Trial – Rule 53
•
53.01, Oral Evidence:
o (1) swear to tell truth, then witness is subject to examination in chief; crossexamination; and re-examination. Cannot use leading questions on direct
examination
o (2) trial judge to exercise reasonable control over the mode of interrogation of a
witness to protect the witness from undue harassment, embarssment, may
disallow a vexatious or irrelevant question matter
•
53.03—party intending to call expert witness shall serve the expert report no less than 90
days before pre-trial conference.
o (2.1) Report needs to contain a number of things—
•
53.04—party requiring the attendance of a person in Ontario as a witness may serve
person with a summons to witness requiring him to attend—
o may include fee, whatever to have them attend
o may also call adverse party
o if unsure—can get other side to provide undertaking to ensure they’re there.
•
53.08—cannot introduce evidence without leave of trial judge
53
Simplified Procedure
Simplified procedure - Rule 76
•
•
76.02: when simplified procedure is mandatory
the statement of claim must identify the action is being brought under the simplified
procedure
•
76.03(2): in addition to schedule A (documents willing to produce); B (privileged);
C (documents no longer in our possession, control and care), in simplified
procedures, we must include a Schedule D (a list of potential witnesses’ (people
who have knowledge) name and their address that reasonably have knowledge of
matters in the issues in the action)
o if a person is represented by a lawyer, you must contact the lawyer, not the
person
o we include a Schedule D in this type of procedure because we have limited
discovery, so we of
•
76.03: Affidavit of documents must be actually provided to the other (at your own
expense) within ten days of the close of the pleadings
•
•
There is also oral discovery (two hours per party)
76.04: forbidden in simplified procedure, and where you CAN’T seek leave of the
court
o There is no written discovery
o There is no cross-examination of a deponent on an affidavit
o No examination of a witness
•
•
•
•
•
There’s a pre-trial conference
we must provide the court with the affidavit of the documents
we must deliver a two page statement setting out the issues
must provide a trial management checklist
this type of procedure allows for an ordinary trial or summary trial (76.12)
o summary trial: puts time limits on various aspects; requires arguments by
affidavits; provides limited times for cross-examination on those affidavits
54
Res Judicata & Issue Estoppel
Introduction
•
Res judicata is a rule of evidence in its formal capacity but it is a rule or doctrine that
we have to prevent duplicative litigation (avoid litigating the same matter more than
once)
o The losing party cannot sue again for the same action or an issue arising
under the same case or controversy
•
RJ concerns closure and fairness to the winning party. It also helps avoiding
burdening the courts with excessive litigation.
Two categories of RJ:
•
Claim preclusion (aka cause of action estoppel) – MUST HAVE SAME
PARTIES (RJ ONLY)
o If there is a cause of action that has been decided, you can’t relitigate that
issue.
•
Issue preclusion (aka issue estoppel) – CAN HAVE DIFFERENT OR SAME
PARTIES (RJ & ABUSE OF PROCESS)
o If there is an issue in the context of litigation that has been decided, you can’t
relitigate that issue.
▪ If P wins in the first action, the cause of action “merges” and the P
▪
can’t reassert the issue.
If P loses, he is barred from litigating a second issue.
Stare decisis= the previous decision provides precedent for a subsequent decision
•
Re Waring: There was a will, and under it, there were two annuities (money) that was
set aside. The issue was whether the annuities were taxable. Court of Appeals in
1942 said annuities were taxable (Re Waring #1). While that was going on, another
case went to the House of Lords called Berkley v. Berkley. The House of Lords in
1946 decided annuities weren’t taxable. In 1948 (Re Waring #2), another party to
the initially Waring annuity goes before the court to determine if the annuity was
taxable based on the Berkley decision. Because of the RJ issue, the party who was
original in #1 was barred from relitigating and the annuities were still taxable, but the
new party in Re Waring #2 was effected by Berkley because of stare decisis and their
annuity was not taxable.
•
This case demonstrates: the same case, two annuities, two different parties, with two
different results because one party was effected by stare decision.
55
Four requirements for RJ (claim AND issue preclusion):
•
•
•
1. Same parties or their privies (rights/relationship to the original party)
2. Jurisdiction -> Decision maker must have authority to make decision that he made
3. On the merits -> the decision has to have been made on its merits; it can also be
relitigated if it was decided on a procedural issue; however, it’s can’t be an
administrative dismissal/delay/abandonments, etc.
•
4. Final judgment -> the decision must be final based on the merits, not interlocutory
o ***includes summary judgment, default judgment, consent judgment
Cuase of action estoppel; SJ=decision on the merits (Hoak)
Facts
After Dr. H was discharged from bankruptcy, he commenced against Montreal
Trust for several breaches of contract, trust, trespass, etc. They all deal with
Montreal’s dealings with the mortgages. Montreal brought SJ motion on basis of res
judicata. Court granted RJ on basis that it was same parties, in proper jurisdiction,
on the merits, and on the final judgment.
Ratio
***A SJ is considered a decision on the merits. A person can raise all its
defences in the original action. If a party chooses not to defend a SJ motion,
they will be bound by the result.
Note: A consent judgment AND a default judgment are also considered a final
judgment on the merits.
Splitting causes of action
•
SCC has decided that plaintiffs cannot split causes of actions (e.g. a tort based on an
auto accident cannot be split based on injuries sustained and the damage to the car)
Two exceptions to strict application of RJ (cause of action estoppel):
•
1. There is fraud or other misconduct in the first proceeding. If the final judgment
was obtained through fraud, for example, the court will not apply RJ.
•
2. If there is fresh evidence that entirely changes the case and cannot have been
induced for reasonably diligence. For example, a new fact that pops up that wasn’t
known before alnd not known without reasonable diligence will prohibit a court from
employing RJ
•
Note: these exceptions are very rare
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RJ - Issue Preclusion
•
A v. B action has issue over validity of signature. Once decided, they can’t relitigate
this issue. In another action with A v. X, neither party can rely on the holding on that
issue from the A v. B action if the validity of the same signature comes into play
because they are not the same parties to the initial action. This may produce an
inconsistent decision. This is where the mutuality requirement comes into play, to
help parties in a second action rely on holdings from a previous action where the
same issues are being litigated and decided.
***In Canada, we use abuse of process (NOT RJ), when we have different parties. If
parties are same, use RJ.
***It would be an abuse of process to relitigate a matter and potentially get a different
result. Abuse of process brings into play jurisdiction; merits; finality of decision for issue
estoppel. The main reason it’s an abuse of process is because it uses judicial resources and
parties’ resources it produces inconsistent result
There are two types of abuse of process:
•
•
Defensive non-mutual issue estoppel
Offensive non-mutual issue estoppel
Defensive non-mutual collateral estoppel (D uses prior decision from an issue/cause of
action)
•
If P litigates against D1, but P loses, and then sues D2 raising the same issues
from action 1, D2 can defensively rely on finding from the first action to avoid
liability.
•
This doctrine abandons the requirement of same parties under a strict RJ
application.
Offensive non-mutual collateral estoppel (P uses prior decision from an issue/cause of
action)
•
If P1 litigates against D and wins, then P2 sues same D, raising the same
issue/cause of action, P2 can rely on finding from the first action.
•
This doctrine abandons the requirement of same parties under a strict RJ
application.
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Defensive non-mutual collateral estoppel (Bernhard v Bank of America National Trust (US
case)
Facts
In Action 1, P was beneficiary and D was trustee of the bank account.
Issue was if deceased made a gift of the bank account during her life
time to the D. If she did, then it wouldn’t fall into estate for P to claim.
P says gift wasn’t made. P is suing D trustee to get the money. Court
found deceased did make a gift, and P doesn’t get money. Same P tries
again and sues bank on basis that bank shouldn’t have allowed D trustee
from Action 1 to take the money out of the bank. If we strictly applied
RJ, RJ doesn’t come into play because D bank in action 2 was not a
party to action 1, and this would allow P to sue again over the same
issue. If we don’t apply RJ strictly, however, there will be an
inconsistent decision. D bank in action 2 wants to use finding from
action 1, and agreed. It called this collateral estoppel.
Holding
The court created defensive non-mutual collateral estoppel because
the D bank is using the estoppel in its favour. It abandoned the
requirement of same parties when creating this doctrine.
Offensive non-mutual collateral estoppel (Parklane Hosiery Co. v. Shoe (US case))
•
This is a shareholder fraud case. There was a complaint to SEC, and under its rules,
SEC brough taction against Parklane and its directors. After trial, district court found
that proxy statement was false. A shareholder then sued Parklane
•
•
•
Action 1: SEC v. Parklane= fraud
Action 2: Shareholder Shore v. Parklane
Under strict application RJ, there are different parties, but under principles of
mutuality, Shore can take the finding from Action 1 and apply it against Parklane.
Court allowed offensive non-mutual collateral estoppel
*Collateral estoppel was adopted in Canada (McIlKenny v. Chief Constable)
Facts
Ps were alleged to be part of IRA (terrorist group) who were previously
convicted of bombing a hotel. They brought civil action against the
police based on their confessions, and their trial being tainted from them
being beaten up by the police. This issue of police beating them was
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raised at criminal trial, and the judge and jury rejected that Ps were
beaten, and found that their confessions were voluntary. In the current
civil trial, the police was to use defensive collateral estoppel because the
issue of the beating and the confessions were decided in the previous
criminal trial.
Holding
•
The Court of Appeals found that RJ didn’t need to be applied
strictly, and defensive collateral estoppel allowed the D
police to rely on the finding from the criminal action. Canada
embraced the US approach that was discussed in the
previous two cases
•
House of Lords rejected Court of Appeal’s abandonment
of mutuality, and instead, in achieving the same result,
relied on the concept of abuse of process. House of Lords
said it would be an abuse of process to allow the second
action to continue.
•
The principles of non-mutuality come through from the
US but instead of redefining RJ, Canada calls it abuse of
process.
Wait and see plaintiffs
•
These are Ps who wait to see a favourable decision in an action in order to use that
holding and sue the same D and get a favourable decision in their own action
•
Court became concerned with these types of Ps and putting D through additional
expense in a case. For this reason, the court imposes cost sanctions on wait and see
plaintiffs in order to:
o Deter other people from
o Indemnify Ds from having to go through a second litigation
RJ with different burdens of proof
•
If a D is found guilty in a criminal trial, they cannot become a P and sue
someone in a civil case on the same issue or else it would be an abuse of process.
•
The court can apply its discretion and not apply the doctrine of abuse of process
if the conviction in the first action was not significant (e.g. a parking ticket).
*The conviction therefore is a prima facie case that can be rebutted.
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RJ with different burdens of proof (Demniter v. British Life Insurance Co.)
Facts
Wife killed by husband which voids any payout on insurance policy for
husband. Husband was convicted of murder of his wife and then sued
insurance company to collect insurance proceeds.
Holding
Court held it would be an abuse of process to have the civil action
proceed when the criminal conviction existed, because the burden of
proof is much higher in criminal case.
Abuse of process; collateral estoppel with different burdens of proof; convictions are
rebuttal; arbitration (Toronto v. CUPE Local 79)
Facts
A man was rec employee for Toronto. He was charged for sexual
assault. He pled not-guilty. At trial he was convicted. Conviction was
affirmed on appeal. City fired him. He was a member of CUPE and
union grieved his termination. The grievance went to arbitration, but
boy didn’t testify at arbitration although he did at criminal trial. D
testified at arbitration that he didn’t sexually assault the person.
Arbitrator held that the presumption of conviction was rebutted and
ordered that he be reemployed by the city.
Holding/Ratio
On review, court found this finding was a collateral attack on the
criminal finding, and applied the doctrine of abuse of process by
looking to the integrity of the adjudicative process in order to avoid
these collateral attacks on criminal findings. The arbitrator erred
because the arbitrator should take into full consideration a criminal
conviction as a matter of law when making his decision.
Abuse of process; administrative tribunal decision (Rasanen v. Rosemont)
Facts
Person was terminated and made claim under legislation for eight-weeks
pay. There was a hearing to determine if he was entitled to that pay.
Hearing concluded that there was no money owing.
Rasanen then commenced civil action for destructive dismissal and trial
judge concluded that the issue before him is the same as the one that
was before administrative tribunal.
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Holding
The judge employed RJ because the parties were the same. In the
first case, the Ministry stood in shoes of the employee because there is
privity.
Ratio
A tribunal finding is considered a final judicial decision, and RJ can
apply.
Issue estoppel; RJ (Minnott v. O’Shanter)
Facts
P worked for D for 11 years but had dispute with supervisor and got 2day suspension. He didn’t come back to work so they terminated him. P
applied for EI but they found he wasn’t entitled to benefits because he
lost the job by his own conduct. You can’t quit a job and collect EI. P
sued D for wrongful dismissal. D wanted to use issue estoppel to dismiss
action due to decision from the EI Board that found he was let go because
of his own conduct.
Holding
Court of Appeals found that EI Board’s decision didn’t amount to issue
estoppel because the issues were different. They also found that
O’Shanter didn’t actively participate in EI matter (action 1) and was not
bound by that prior decision. He also didn’t have the opportunity to
represent himself in the first action.
Ratio
This case adds that in addition to being a party, a party must actively
participate in order for RJ to apply.
Court was also concerned with applying estoppel because the level of
investigation at the tribunal level is much lower, the stakes are lower,
the burden of proof is much lower, etc.
Estoppel as a doctrine of public policy (Danyluk v. Danyluk)
Facts
An employment case where Danyluk was in dispute with employer and
didn’t get $300K in commission money and filed application to ESC.
Employment Standard Officer interviewed her over phone but didn’t
give those notes to Danyluk. Danyluk then started wrongful dismissal
action against employer. ESC then denied her application . Danyluk
didn’t appeal that decision, but simply continued with her wrongful
dismissal action.
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Holding
SCC held that was an unfair process to Danyluk because estoppel is a
doctrine of public policy which is used to advance the interests of
justice; not to deny people the opportunity to get their issues heard
before the courts when necessary. She was denied natural justice
because she didn’t get to participate other than the phone call, she didn’t
get to hear employer’s side of the case, etc. Although SCC was critical
that she didn’t appeal the ESC decision, the court looked at the bigger
picture being the interest of justice.
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Privilege
Three types of privilege:
•
•
•
Solicitor-client
Litigation privilege
Settlement
Introduction:
•
Privilege prevents the court and the other side from getting relevant information. It
essentially inhibits the search for truth in a legal proceeding.
•
Privilege is originally a rule of evidence: what privilege allows you to admit or
exclude from evidence.
o There are several types of privilege recognized by the laws of evidence:
police informant, spousal, Crown/state secrets, against self-incrimination.
•
SCC considers privilege a principle of fundamental justice. Why? In order to
encourage candor, uninhibited discussion between a solicitor and her client, so they
can obtain proper legal advice with a guarantee of confidence of the information.
•
Some communications between parties are confidential, but not privileged. (e.g.
doctor-patient, clergy-penitent, journalist-informant, etc.)
Solicitor-client privilege
•
TEST FOR SC PRIVILEGE (Solowski, SCC):
o 1. There must be a communication between the lawyer and client;
o 2. It must entail the seeking of legal advice;
o 3. It was intended to be confidential.
•
•
You do not need to assert the privilege; the privilege is automatic.
Exceptions:
o Communications to commit fraud/ a crime are not privileged. The lawyer
has a positive obligation to stop that.
o If someone’s life/welfare/health is threatened, including your client’s, the
communication is not privileged.
o Innocence at stake: If a lawyer knows a person will be wrongfully accused
based on information they receive, they may break privilege.
•
•
The privilege belongs to the client. Only the client can waive the privilege.
When the client is an corporation, anyone within the corporation who speaks to
the corporation’s lawyer creates a confidential communication. Canada has
adopted the agency theory approach: employees are agents of the corporation
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and therefore can communicate with the corporation’s lawyer to obtain legal
advice.
o BEFORE, Canada used the control test theory (who had control of the
corporation). It later evolved into the subject-matter theory (only certain
subjects were privileged.)
In-house counsel legal opinions are subject to SC privilege (Pritchard v. OHRC)
Fact
Pritchard filed human rights complaint with OHRC. She was filing
against her employer, Sears Canada. OHRC after looking into the
matter denied her request; they did not pursue her complaint.
Pritchard had the right to a judicial review of that decision and
pursued that option. As part of her appeal to the divisional court, she
brought a motion for production of the OHRC’s file of her case. She
also wanted out of that file, the legal opinion that the OHRC obtained
from its in-house counsel. OHRC claimed SC privilege.
Holding
SCC denied her request for production of OHRC’s records and its inhouse counsel’s legal opinions.
Ratio
In-house counsel legal opinions are subject to SC privilege.
What notes are confidential (Ontario (Ministry of Environment) v. McCarthy Tetrault)
Fact
A lawyer attends meeting with the Board of Lafarge Canada (cement
company). Ministry was investigating Lafarge for alleged spills of
waste. Only the MT lawyer took minutes at the meeting, which
included high-ranking company officials. Ministry wanted access of
lawyer’s minutes, and the Ministry relied on a memo that described
the meeting as an environmental audit, and said the role of the
lawyer was to record the meeting and upkeep it. Ministry said lawyer
wasn’t there to communicate with client, give legal advice, and it
wasn’t intended to be confidential. Ministry said it would set
dangerous precedent if lawyers attended meetings, and then all of the
documents they touch become privileged. Court disagreed.
Holding
Court found lawyer was a credible witness and believed his statement
that the lawyer’s notes were confidential because Lafarge was
seeking legal advice.
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Waiver of SC privilege
•
Only the client can explicitly waive the privilege.
Inadvertent waiver through reliance on a document (R. v. Campbell)
Fact
Two people were found guilty of conspiracy to traffic marijuana for
purpose of trafficking. They were found guilty. Before sentencing,
the convicted sought a stay and they wanted access to legal advice
RCMP received from Dept. of Justice lawyers. RCMP as part of the
investigation obtained an opinion from DOJ. In stating that the
RCMP believed their sting operation to be legal, they relied on the
opinion of the lawyer, and they did so in good faith, so they should
not be found to be at fault.
Holding
The privilege was waived because they put into play their good faith
about the opinion. By raising that issue, they are waiving the right to
keep that privilege. Because the RCMP and the lawyers chose to rely
on the communications of the lawyers and the legal opinion they
provided, the privilege was waived.
Ratio
If a party has the intention to rely on a document in order to
defend their position, they inadvertently waive privilege with
their lawyer.
Inadvertent disclosure through losing control of a document (Airst v. Airst)
Ratio
There must be a clear and conscious intention to waive the
privilege before it is broken.
Factors the court will consider when determining if privilege is
broken through inadvertent disclosure of a document:
1. The way in which the documents came to be released
2. Was there a prompt attempt to retrieve the documents
3. The timing of the discovery of the disclosure
4. The number and nature of third parties receiving the
information
5. Whether the maintenance of the privilege will create an actual
or perceived unfairness to the opposing party
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6. The impact of the fairness of process on the court, both real
and perceived
Notes
Also note Metcalfe v. Metcalfe – Copies of original documents were
given to the other side accidentally. Issue: Are photocopies of
original communications privileged? Yes. (Originally, they were
not privileged.) In order to break privilege through disclosure of a
document, the Court must find that the party had clear intention
to do so. The court should also consider who is exposed to the
privileged copy.
Litigation privilege (lawyer’s brief rule)
•
•
Litigation privilege prevents a party from getting inside the mind of the lawyer.
This rule prevent disclosure of document at the
discovery/investigatory/preparatory, etc. stages of litigation in the possession by
the lawyer, the client or a third party; it prevents the other side from knowing your
strategy.
•
LP can be distinguished from AC privilege in three ways:
o SCP applies to only communications between client and lawyer, whereas LP
can protect communications of a non-confidential nature between lawyers and
third parties.
o SCP exists anytime a client is seeking legal advice regardless of whether
litigation is involved; LP applies ONLY when there is litigation.
o *The reason for the privilege: SC focuses on the relationship (candor between
client and lawyer); LP focuses on process – it is necessary to deal with the
adversarial trial process
•
LP inhibits a lawyer from fully investigating a case, but it allows a lawyer to do her
job fully without having to give up information.
Shows difference between SCP and LP (Wheeler v LaMarchand)
Fact
Grant of a lease to land. Ds’ lawyers had correspondence between the
lawyers for Ds and a property survey. That was done prior to
litigation. Ds didn’t want to give up this information.
Holding
Is it subject to SCP? No – it’s not communication between the lawyer
and their client. It’s between a lawyer and third party.
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Is it subject to LP? No – it was communication prior to litigation.
Litigation Privilege only applies to documents produced IN CONTEXT of litigation or IN
CONTEMPLATION of litigation (Hickman v. Taylor)
Fact
5/9 crew members drowned in accident involving train and ferry.
Owners of ferry employed law firm to defend them against potential
suit. Lawyers privately interviewed survivors and took statements
from them with an eye towards anticipated litigation. Survivors also
signed their statements. Lawyers also interview other people that had
potential information. He also wrote memos on his work in this
investigation. There was eventually litigation, and P sought access to
any statements that were obtained by crew members or any other
relevant people involved. D claimed privilege.
Holding
Court agreed with D.
Ratio
•
•
•
D had a right to interview these people on their own.
LP is meant to protect the mind of lawyers.
LP only applies to documents produced IN CONTEXT of
litigation or IN CONTEMPLATION of litigation.
History of Litigation Privilege
•
The court first used the substantial purpose test to determine if litigation privilege
existed: the substantial purpose of the document had to be for litigation
o Burnham v. North York Education: Although a document was not first
prepared for litigation purposes, but eventually became used for the purpose
of litigation, it is still privileged
•
The court n then used the sole purpose test: privilege only applies if the document
was solely prepared for litigation
•
***The court now uses the DOMINANT PURPOSE TEST:
o Waugh v. British Railway Board: In this case, the lawyer prepared a report in
order to: 1. Make a report to the Ministry; 2. Help establish the cause of the
accident; 3. Used to advise board on their legal liability. The court created the
dominant purpose test. In this case, the Court found the report was not
privileged because the dominant purpose of it was not for litigation. The
dominant purpose of the document must be for litigation.
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Litigation privilege (General Accident Assurance C. v. Chrusz)
Fact
On Nov. 15, 1994, there’s a fire. On Nov. 16, the adjuster for the
insurance company suspects arson. On Dec. 1, the lawyer tells the
adjuster to communicate with the lawyer. In Jan. 1995, based on
their investigation, the insurance company makes a payment to the
insurer. On May 23, a former employee who was dismissed in
January of that year delivers a video tape and some financial
documents from the employer where the fire took place (a hotel). The
former employee said the hotel company exaggerated its claim with
the insurance company and therefore committed fraud. The lawyer
copies the videotape and makes a transcript of the former employee’s
statement. On June 2, the lawyer gives a copy of tape and transcript
to the employee to be kept confidential. The Ds wanted all the
information that flowed between the lawyer, adjuster and the
employee. At ONCA, the court looked at this from a segmented point
of view to determine if there was privilege.
Holding
1. Was there SC privilege between lawyer and insurance company?
Yes.
2. Was there litigation privilege for all communications between
lawyer and the adjuster? No. An insurance company has an
obligation to deal with insured (client) in good faith; if there was no
reason to suspect arson, the insurance must be on your side.
However, litigation privilege comes into play when the insurance
company has a reason to contemplate litigation; an adversarial
relationship comes into play between the insurance company and its
client (the hotel).
3. Was there SC privilege between lawyer and adjuster? No.
Also note: As soon as the insurance company paid out to the insured,
there is no litigation for any documents that were cloaked by
privilege before that payment. Essentially, the payment erases any
privilege there was before. Regardless what happens from a litigation
68
point of view, any communications between solicitor and client are
still privileged.
Now, the arson claim is done. However, once the former employee
came forward, litigation privilege comes back into play (a fraud
claim). Anything that adjuster is looking at will be subject to
litigation privilege. The video tape and float sheets are producible
and don’t qualify for privilege because they are evidence; they were
not documents created in anticipation in litigation.
4. Is the statement between former employee and lawyer subject to
privilege? Yes, because the lawyer obtained it in the course of
litigation/handling the matter.
5. Was the copy that the lawyer gave to the former employee subject
to privilege? Yes.
Application of Dominant Purpose Test (College of Physicians of BC v. BC Privacy
Commissioner)
Facts
Lawyer of College obtained four expert opinions to examine complaint.
Those opinions were turned into memo of law. Complainant wanted those
opinions and memos. Privacy Commissioner said they’re not privileged
because lawyer obtained them in her capacity of investigator, not lawyer,
so there’s no SC privilege, and there was no litigation privilege because
litigation wasn’t being contemplated.
Holding
Court found that the memos were not created for dominant purpose of
litigation and College was not in an adversarial role.
Privilege is absolute in Canada; in US, it’s qualified. In US: If a party can’t obtain information
through any other means (e.g. if a person dies) it may be possible to get that statement because
there’s no other way to obtain it. In Canada, privilege persists after the life of a privileged
person.
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•
Facts you divulge to your lawyer are not privileged; the communication is. You
cannot hide facts from the other side UNLESS you admitted that you breached
liability.
•
There’s no ownership in a witness. If a lawyer interviews a witness, the other
lawyer can go interview the other witness.
•
“In gathered documents”: documents obtained by lawyer in the course of their
work. Copies of privileged documents are still privileged.
o The law has evolved to say that the copy remains privileged provided the
copy was made in litigation or contemplation of litigation has to be the
dominant purpose of the copy.
o There must be exercise some knowledge/skill on the part of the lawyer to
make the copy and keep it privileged.
•
The main concern of the court when determining if privilege applies is if they are
going to reveal the thought process/thinking of the lawyer.
•
Rule 31.06: The rules allow for disclosure of witness’ names and what will they
say.
Doctor-patient confidentiality
•
In a sexual assault, the victim will seek psychiatric counseling to help them with
events that have occurred. It’s often a defence tactic to obtain the notes from that
psychiatrist. The courts have struggled with if that information is privileged.
Test for confidentiality is test for DP confidentiality (A. M. v. Ryan)
Facts
This is a case of a sexual assault by Ryan. Victim sought psychiatric
counseling. D wanted counseling notes and records. Issue was whether
psychiatric notes were cloaked by privilege. Holding: The information
could be given to the D’s counsel and expert, but copies could not be made,
and they had to take an undertaking that they would not do so.
Holding/Analysis
The court applied the test for confidentiality.
•
1. The communication must originate in a way that they won’t
be disclosed. Yes.
•
2. Element of confidentiality must be essential to the
satisfactory maintenance of the relationship. Yes.
•
3. It must be a confidence that the community holds dearly.
Yes.
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•
4. Is there greater harm to the victim caused by revealing the
information rather than the harm the D would suffer by not
revealing it? The D would suffer greater harm.
Settlement privilege
•
Why have it? To encourage settlements, and allow parties to speak freely to resolve
the matter without resorting to litigation.
•
The court has outlined four reasons why we have settlement privilege:
o 1. Any admissions during settlement discussion are generally hypothetical or
conditional.
o 2. Public policy: We shouldn’t be able to use these words against the parties if
they’re trying to reach a settlement.
o 3. Contractual basis: If settlement is reached, then we don’t care. If settlement
isn’t reach, then we also don’t care what the negotiations were; those
negotiations are irrelevant and don’t impact the result in litigation.
o 4. Any admissions or discussions during settlement are expressions of a desire
usually for peace, usually not any admission of liability.
•
TEST: In order for settlement privilege to apply,
o 1. There must be a litigious dispute in existence or in contemplation
o 2. There must be an intention that the information will not be disclosed if
there’s no settlement; there’s an expectation that settlement discussions
will be confidential.
o 3. The purpose of the communication was to attempt to reach a
settlement.
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Limitation Periods
Limitation period: the timeframe in which you must commence your action.
•
If you don’t start your action within that time period, it may be extinguished or
barred.
•
*HOWEVER, a limitation period is a defence. It’s not an automatic right.
Anyone can start an action; the court won’t automatically not allow you from
pursuing that action; it’s up to the D to assert that defence. The D must plead
limitation period.
•
Fairness for the Defendant, gather evidence before evidence disappears
Ontario Limitations Act 2002: the Act changed two things
•
•
1. Standard limitation period in Ontario is now 2 years, no longer 6 years
2. Discoverability (created in Kamlops case): the limitation period starts running
once the plaintiff discovers the problem using a reasonable person test
•
Kamloops Ratio: cause of action arises when plaintiff knew or ought to have known
the material facts on which the claim is based (Discoverability principle)
•
All the requirements must be sufficed to satisfy the discovery principle (see Section 5
of the act)
•
Discoverability TEST: First part of test is actual knowledge, the second part is
applying the reasonable person, should you have known at that particular date
•
In court; common argument that party ought to have known by the date,
objective standard
•
Have to plead as D the limitation period defense, plaintiff then says why it does
not apply using discoverability test (Kamloops)
•
6 week window under the liable and slander act, if you do not give notice you can not
commence your action, must wait 6 weeks after notice;
•
The issue of being defamed is reputation get ruined, if you’re aware, you should give
the party (News, media oputlet) an opportunity to mitigate the diminishment of your
reputation
Public policy for limitation periods:
•
•
•
societal concern: people don’t have impending litigation ongoing forever
fairness: it’s hard to defend yourself with evidence from many years ago
economic: disputes come to a closure more quickly and efficiently
Types of limitation periods:
•
Standard limitation periods: 2 years
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•
•
Ultimate limitation periods
Flexible limitation periods
Some limitation periods also have a NOTICE requirement. The purpose of the notice
requirement is giving the defendant an opportunity to investigate and repair the problem.
Examples:
•
S. 44(1) of Municipal Act – if you get into an accident due to municipal
infrastructure, you must send a written letter to clerk of municipality within ten years
or else you won’t be able to bring an action against the
•
Libel and Slander Act – six week notice requirement to broadcaster before suit can
be brought against them
When injury manifests much later than the claim is discovered (Novak v. Bond)
Facts
Woman had breast cancer and doctor misdiagnosed her. Her breasts
were removed and there was no further cancer. She consulted with
religious advisor and felt that she didn’t want to sue. Four years later,
the cancer returned much more spread out in her body. She took as
much treatment as she could, but she decided to sue her original doctor
who misdiagnosed her.
Issue
Was it reasonable for her to commence the action after discovering the
second cancer? Yes.
Importance
This case shows there is some flexibility with respect to when the
limitation period starts running.
Class Notes: October 1990, 6 year window existed
▪ 1996 commenced legal action
▪ They though in the interest of justice could find a way to allow her to bring her law suit
▪ Reasonable person would taking in to consideration her circumstances Ms Novak ought to be
able to bring forth a cause of action
Hare v Hare
▪
▪
▪
▪
150K loaned mom to son on demand promissory note
son did not pay, last payment 1998, 2004 mother made a demand for payment, he did not
pay she commenced a claim in 2005
under CL, a Demand Promissory note the clock starts ticking not on date demand is made but
the date Note is made!
Sub III was create in response to Hare, once you make your demand then the clock starts
ticking
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Ontario Limitations Act
•
•
S. 2: The Act applies to everything except where other Acts provide for
S. 4: Standard limitation period is the second anniversary of the day on which
the claim was discovered
•
S. 5(1): A claim is discovered on the earlier of,
o (a) the day on which the person with the claim first knew,
▪ (i) that the injury, loss or damage had occurred,
 Note that this is subject to the Court’s discretion. The injury
doesn’t necessarily have to have crystalized; as long as the
Court knows that you knew of the injury, that may be
sufficient, even if the injury isn’t realizable yet.
▪ (ii) that the injury, loss or damage was caused by or contributed to by
an act or omission,
▪ (iii) that the act or omission was that of the person against whom the
claim is made, and (all components have to be in play to satisfy
Discovery principle)
▪ (iv) that, having regard to the nature of the injury, loss or damage, a
proceeding would be an appropriate means to seek to remedy it; and
o (b) the day on which a reasonable person with the abilities and in the
circumstances of the person with the claim first ought to have known of the
matters referred to in clause (a).
•
S. 5(3): The limitation period starts running as soon as you demand payment.
o This case was the result of Hare v. Hare: Mother loaned son money on
demand promissory note= you pay me when I demand you pay me. It didn’t
have any payment date. Son didn’t pay mother back. Mother sued him.
However, the CL approach to these notes is that as soon as you give the note,
the money is payable to you. The limitation period used to be that it started
running as soon as you give the note.
•
S. 6: limitation periods don’t apply to minors; it only starts running when they are 18
•
S. 7: limitation periods don’t apply to incapable people; it only starts running when
and if they become capable
•
S. 10: limitation period doesn’t start running if your physical/emotional/mental state
doesn’t allow it
•
S. 11: a party can stop the clock from running if you bring in an independent third
party in to resolve the matter. TOLL the limitation period, Settle negotiate get this
resolves
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•
S. 13: acknowledgments of liability restart the clock (i.e. if someone owes you
money, and they send you email saying they acknowledge they must pay you, the
clock resets the clock
•
•
S. 14: D puts P on notice that P may have claim against them.
The idea is that D doesn’t want the claim hanging out there OR they think that the P
will miss the claim and this will shortcut any discoverability
•
S. 15: Ultimate limitation period of 15 years. This removes the discoverability; a
plaintiff must discover within these 15 years.
o S. 15(4): ultimate limitation period doesn’t apply in certain circumstances
▪ (a) the person with the claim,

▪
▪
(i) is incapable of commencing a proceeding in respect of the
claim because of his or her physical, mental or psychological
condition, and
 (ii) is not represented by a litigation guardian in relation to
the claim;
(b) the person with the claim is a minor and is not represented by a
litigation guardian in relation to the claim; or
(c) the person against whom the claim is made,
 (i) willfully conceals from the person with the claim the fact

•
•
that injury, loss or damage has occurred, that it was caused
by or contributed to by an act or omission or that the act or
omission was that of the person against whom the claim is
made, or
(ii) willfully misleads the person with the claim as to the
appropriateness of a proceeding as a means of remedying the
injury, loss or damage.
S. 16: No limitation period in certain circumstances (Priests Exception)
(h) a proceeding arising from a sexual assault if at the time of the assault one of the
parties to it had charge of the person assaulted, was in a position of trust or authority
in relation to the person or was someone on whom he or she was dependent, whether
financially or otherwise;
o ABOVE Keeps limitation period open indefinitely
•
•
S. 17: No limitation period in environmental claims
S. 18: if you want to sue someone from contribution and indemnity (when someone
else is responsible for the injury, not you), who have 2 years from the day you’re
served with a claim for which you will claim contribution and indemnity; cross claim
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is where this is commonly brought, **Clock starts on date you are served of
third party claim or cross claim**
•
S. 22: limitation periods always apply except for circumstances provided for in
subsections 3, 4 and 5
•
As a Defendants lawyer you MUST PLEAD IT!! Can not let it go to default
judgment or else limitation period will not be enforced
•
Limitation periods on a guarantor (Bank of Nova Scotia v. Williamson)
•
Until a demand is made on the guarantor, the two year limitation period doesn’t
start running.
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Enforcement of Orders & Appeals
Introduction
•
•
Order: what the court has decided
Two types of orders:
o Interlocutory order: an order given within the litigation process; generally
given after a motion
o Final order: an order that disposes of an action; generally called a judgment
▪ These include: summary judgment, consent judgment, and default
judgment
Rule 59 - Orders
•
•
59.01 - effective date
59.02 – endorsement by judgment or officer
o there’s a light blue back sheet on each type of record.
▪ 1. motion record
▪ 2. trial record
▪ 3. application
▪ 4. appeal record
o the endorsement is written by the judge and is a brief synopsis on the
order which is located on the back sheet.
•
59.03 – preparation of draft
Three ways to deal with an order:
•
1. Draft order prepared and judge makes decision you have anticipated in your
favour, you hand it over and judge signs it.
•
2. If judge makes changes, you must go make the changes at your office and then get
other side’s approval for form and content. Once you get other side’s approval, you
take unsigned changed order, the consent as to form and content and take it to the
Reigstrar’s office, who will then approve it.
•
3. If other side won’t agree to form and content, you must appear before judge to have
him approve that.
Rule 59 cont’d:
•
59.05: Once order is signed by judge or Registrar, you must take the signed order to
the Registrar who will enter and file it
•
59.06(1): amending the order if there is an error in the order. It must be an error
arising from an accidental slip or omission or requires amendment.
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o this is not an appeal section; this is a section to deal with mistakes
•
59.06(2): setting aside or varying an order by motion
o this is not an appeal section; this is a section to deal with new information
•
59.07: satisfaction of an order; the order has been carried out or paid
Enforcing Orders
•
•
•
Judgment creditor= the party that is owed money pursuant to the order
Judgment debtor= the party that owes money pursuant to the order
To enforce an order, go to the other side, and ask when/if they will pay the order
Enforcement of Orders – Rule 60
•
60.02 – how to enforce orders
o 60.07 - File a writ of seizure and sale with the sheriff’s office against the
debtor; it establishes that the creditor is giving deemed notice to the word that
the debtor owes creditor money.
▪ 60.07(1): This is a document directing the sheriff to seize property in
the jurisdiction that the debtor resides.
▪ 60.07(13): The creditor must give the sheriff a sufficient description
on what it is that the sheriff should seizure.
▪
60.07(17-22): directions that the sheriff must follow before seizing
property
▪ 60.07(1.4)(2): a writ of search and seizure is valid for six years. You
must go back to the court and seek leave to file a new writ if the
original one has expired.
o 60.08: garnishment: a third party that pays money on behalf of debtor
▪ Examples of garnishers:
 The debtor’s business
 Debtor’s employer
 inheritance
▪
▪
 *the bank
Garnishments don’t go to the creditor directly; they go to the
sheriff first. When the sheriff gets money, they will disperse the
money based on the number of creditors who have filed notices of
garnishment writs of seizure and sale, etc. It’s a pooled situations.
60.08(2): Garnishments are valid for six years. You can renew with
leave of the court once expired.
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▪
60.08(16): garnishment hearing – the debtor can ask for a hearing to
change the amount of the garnishment (i.e. to reduce the wage
garnishment against him)
▪ 60.08(17): enforcement against garnishee when garnishee doesn’t
respond in any fashion or doesn’t pay money to sheriff
▪ 60.18(2): examination of debtor
▪ 60.18(4): only one examination of debtor per year
o 60.11 – contempt order: when a party breaches the order of the court for any
purpose OTHER THAN non-payment of judgment
o 60.12 – failure to comply with an interlocutory order
Appeals - Rule 61
•
•
Refer to PC-28 and PC-29 (charts at front of book)
61.03 – notice of motion for leave to appeal to divisional court
o 15 days including weekends and holidays
•
•
61.03.1 – motion for leave to appeal to court of appeal
61.04 – commencement of appeals
o OVERALL,
▪ if you need leave, it’s a two step process: 1. You must bring a
▪
•
•
•
•
motion for leave within 15 days of the order; 2. If you get leave,
you have 30 days to file notice of appeal
if you don’t need leave, you have 30 days to file a notice of appeal
since the final judgment
61.09 – perfecting an appeal
61.10 – appeal book and compendium
61.11 – appellant’s factum
61.12- respondent’s factum
appeals from interlocutory orders - Rule 62
•
•
62.02(1): motions for leave to appeal from interlocutory order of a judge
62.02(4): TEST for leave to appeal from interlocutory order of a judge
Stay pending appeal - Rule 63
•
•
Stay= you don’t have to carry out order/judgment if there’s an appeal
63.01 – automatic stay on delivery of notice of appeal
79
Rules of Professional Conduct
Introduction
•
Rules of Professional Conduct that govern lawyers in Ontario are written by the
Law Society of Upper Canada
*EXAM TIP: Focus on the main rule only unless these notes explicitly mention the
commentary
Integrity
•
2.1-1: A lawyer has a duty to carry on the practice of law and discharge all responsibilities to
clients, tribunals, the public and other members of the profession honourably and with
integrity.
•
2.1-2: A lawyer has a duty to uphold the standards and reputation of the legal profession and
to assist in the advancement of its goals, organizations and institutions.
Relationship to Client (Competence)
•
3.1-1: In this rule, a “competent lawyer” means a lawyer who has and applies relevant
knowledge, skills and attributes in a manner appropriate to each matter undertaken on behalf
of a client including
(a) knowing general legal principles and procedures and the substantive law and
procedure for the areas of law in which the lawyer practises,
o (b) investigating facts, identifying issues, ascertaining client objectives, considering
possible options, and developing and advising the client on appropriate courses of
action,
o (c) implementing, as each matter requires, the chosen course of action through the
application of appropriate skills, including;
▪ (i) legal research,
▪ (ii) analysis,
▪ (iii) application of the law to the relevant facts,
o
▪ (iv) writing and drafting,
▪ (v) negotiation,
▪ (vi) alternative dispute resolution,
▪ (vii) advocacy, and
▪ (viii) problem-solving,
o (d) communicating at all relevant stages of a matter in a timely and effective
manner;
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o (e) performing all functions conscientiously, diligently, and in a timely and costeffective manner;
o (f) applying intellectual capacity, judgment, and deliberation to all functions;
complying in letter and in spirit with all requirements pursuant to the Law Society
Act;
o (g) recognizing limitations in one’s ability to handle a matter or some aspect of it,
and
o (h) taking steps accordingly to ensure the client is appropriately served;
o (i) managing one’s practice effectively;
o (j) pursuing appropriate professional development to maintain and enhance legal
knowledge and skills; and
o (k) otherwise adapting to changing professional requirements, standards,
techniques, and practices.
•
3.1-2: A lawyer shall perform any legal services undertaken on a client’s behalf to the
standard of a competent lawyer.
o Commentary 2: Competence is founded upon both ethical and legal principles.
This rule addresses the ethical principles. Competence involves more than an
understanding of legal principles; it involves an adequate knowledge of the practice
and procedures by which such principles can be effectively applied. To accomplish
this, the lawyer should keep abreast of developments in all areas of law in which the
lawyer practises.
o Commentary 3: In deciding whether the lawyer has employed the requisite
degree of knowledge and skill in a particular matter, relevant factors will include
▪ (a) the complexity and specialized nature of the matter;
▪ (b) the lawyer’s general experience;
▪ (c) the lawyer’s training and experience in the field;
(d) the preparation and study the lawyer is able to give the matter; and
▪ (e) whether it is appropriate or feasible to refer the matter to, or associate or
consult with, a licensee of established competence in the field in question.
o
Commentary 5: A lawyer should not undertake a matter without honestly
feeling competent to handle it, or being able to become competent without undue
delay, risk, or expense to the client. This is an ethical consideration and is distinct
from the standard of care that a tribunal would invoke for purposes of determining
negligence.
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Quality of Service
o 3.2-1: A lawyer has a duty to provide courteous, thorough and prompt service to
clients. The quality of service required of a lawyer is service that is competent,
timely, conscientious, diligent, efficient, and civil.
o 3.2-2: When advising clients, a lawyer shall be honest and candid.
▪ Commentary 1.2: In some limited circumstances, it may be appropriate
to withhold information from a client. For example, with client consent, a
lawyer may act where the lawyer receives information on a “for counsel’s
eyes only” basis. However, it would not be appropriate to act for a client
where the lawyer has relevant material information about that client received
through a different retainer. In those circumstances the lawyer cannot be
honest and candid with the client and should not act.
o 3.2-4: A lawyer shall advise and encourage the client to compromise or settle a
dispute whenever it is possible to do so on a reasonable basis and shall discourage
the client from commencing or continuing useless legal proceedings.
o 3.2-5: A lawyer shall not, in an attempt to gain a benefit for a client, threaten, or
advise a client to threaten: (a) to initiate or proceed with a criminal or quasicriminal charge; or (b) to make a complaint to a regulatory authority.
o 3.2-7: A lawyer shall not knowingly assist in or encourage any dishonesty, fraud,
crime, or illegal conduct or instruct a client or any other person on how to violate
the law and avoid punishment.
▪ can’t use retainer to do so
▪ can’t allow client to use you to engage in fraud
Medical-Legal Reports
•
3.2-9.1: A lawyer who receives a medical-legal report from a physician or health
professional that is accompanied by a proviso that it not be shown to the client shall return
the report immediately to the physician or health professional unless the lawyer has
received specific instructions to accept the report on this basis.
•
3.2-9.2: A lawyer who receives a medical-legal report from a physician or health
professional containing opinions or findings that if disclosed might cause harm or injury to
the client shall attempt to dissuade the client from seeing the report, but if the client
insists, the lawyer shall produce the report.
•
3.2-9.3: Where a client insists on seeing a medical-legal report about which the lawyer
has reservations for the reasons noted in rule 3.2-9.2, the lawyer shall suggest that the
client attend at the office of the physician or health professional to see the report in
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order that the client will have the benefit of the expertise of the physician or health
professional in understanding the significance of the conclusion contained in the medicallegal report.
Confidential Information
o Commentary 3: when the lawyer owes confidentiality
o Commentary 4
o Commentary 8: having discreet conversations
•
3.3-1: A lawyer at all times shall hold in strict confidence all information concerning the
business and affairs of the client acquired in the course of the professional relationship and
shall not divulge any such information unless
o
o
o
o
(a)
(b)
(c)
(d)
expressly or impliedly authorized by the client;
required by law or by order of a tribunal of competent jurisdiction to do so;
required to provide the information to the Law Society; or
otherwise permitted by rules 3.3-2 to 3.3-6.
•
3.3-1, Commentary 2: The rule under the RPC is much broader than the evidentiary
rule of confidentiality
•
3.3-1, Commentary 3: A lawyer owes the duty of confidentiality to every client without
exception and whether or not the client is a continuing or casual client. The duty survives
the professional relationship and continues indefinitely after the lawyer has ceased to act for
the client, whether or not differences have arisen between them.
•
3.3-1, Commentary 4: A lawyer also owes a duty of confidentiality to anyone seeking
advice or assistance on a matter invoking a lawyer’s professional knowledge, although
the lawyer may not render an account or agree to represent that person. A solicitor and client
relationship is often established without formality. A lawyer should be cautious in accepting
confidential information on an informal or preliminary basis, since possession of the
information may prevent the lawyer from subsequently acting for another party in the same
or a related matter.
•
3.3-1, Commentary 8: A lawyer should avoid indiscreet conversations, even with the
lawyer's spouse or family, about a client's affairs and should shun any gossip about such
things even though the client is not named or otherwise identified. Similarly, a lawyer should
not repeat any gossip or information about the client's business or affairs that is overheard or
recounted to the lawyer. Apart altogether from ethical considerations or questions of good
taste, indiscreet shop-talk between lawyers, if overheard by third parties able to identify the
83
matter being discussed, could result in prejudice to the client. Moreover, the respect of the
listener for lawyers and the legal profession will probably be lessened.
•
3.3-3: A lawyer may disclose confidential information, but must not disclose more
information than is required, when the lawyer believes on reasonable grounds that there
is an imminent risk of death or serious bodily harm, and disclosure is necessary to prevent
the death or harm.
•
3.3-4: If it is alleged that a lawyer or the lawyer’s associates or employees
o (a) have committed a criminal offence involving a client’s affairs;
o (b) are civilly liable with respect to a matter involving a client’s affairs;
o (c) have committed acts of professional negligence; or
(d) have engaged in acts of professional misconduct or conduct unbecoming a
lawyer,
o the lawyer may disclose confidential information in order to defend against the
allegations, but shall not disclose more information than is required.
o
•
3.3-5: A lawyer may disclose confidential information in order to establish or collect the
lawyer's fees, but the lawyer shall not disclose more information than is required.
•
3.3-6: A lawyer may disclose confidential information to another lawyer to secure legal
advice about the lawyer’s proposed conduct (that breaches the Rules).
Conflicts of Interest
•
3.4-1: A lawyer shall not act or continue to act for a client where there is a conflict of
interest, except as permitted under the rules in this Section.
o Commentary 8: examples of conflicts of interest
•
3.4-2: A lawyer shall not represent a client in a matter when there is a conflict of interest
unless there is express or implied consent from all clients and it is reasonable for the lawyer
to conclude that he or she is able to represent each client without having a material adverse
effect upon the representation of or loyalty to the other client.
o (a) Express consent must be fully informed and voluntary after disclosure.
o (b) Consent may be implied and need not be in writing where all of the following
apply: (i) the client is a government, financial institution, publicly traded or similarly
substantial entity, or an entity with in-house counsel, (ii) the matters are unrelated,
(iii) the lawyer has no relevant confidential information from one client that might
reasonably affect the representation of the other client, and (iv) the client has
commonly consented to lawyers acting for and against it in unrelated matters.
•
3.4-3: A lawyer can’t represent both sides in a DISPUTE.
84
•
3.4-5: A lawyer cannot have joint retainer when parties’ interests are adverse. If you do
represent joint parties, if one party tells you info and says don’t tell the other party, you can’t
follow that instruction.
o Similarly, if a conflict develops between the parties, the lawyer can’t represent both
parties
•
3.4-10: Unless the former client consents, a lawyer shall not act against a former client
in
o (a) the same matter,
o (b) any related matter, or
o (c) save as provided by rule 3.4-11, any other matter if the lawyer has relevant
confidential information arising from the representation of the former client that may
prejudice that client.
•
3.4-11: When a lawyer has acted for a former client and obtained confidential
information relevant to a new matter, another lawyer (“the other lawyer”) in the
lawyer’s firm may act in the new matter against the former client provided that:
o (a) the former client consents to the other lawyer acting; or
o (b) the law firm establishes that it has taken adequate measures on a timely basis to
ensure that there will be no risk of disclosure of the former client’s confidential
information to the other lawyer having carriage of the new matter.
85
Reasonable Fees & Disbursements
•
3.6-1: A lawyer shall not charge or accept any amount for a fee or disbursement unless it is
fair and reasonable and has been disclosed in a timely fashion.
o Commentary 1: What is a fair and reasonable fee will depend upon such factors as
▪ (a) the time and effort required and spent,
▪ (b) the difficulty of the matter and the importance of the matter to the client,
▪ (c) whether special skill or service has been required and provided,
▪ (c.1) the amount involved or the value of the subject-matter,
▪ (d) the results obtained,
▪
▪
▪
▪
▪
▪
▪
(e) fees authorized by statute or regulation,
(f) special circumstances, such as the loss of other retainers, postponement of
payment, uncertainty of reward, or urgency,
(g) the likelihood, if made known to the client, that acceptance of the retainer
will result in the lawyer’s inability to accept other employment,
(h) any relevant agreement between the lawyer and the client,
(i) the experience and ability of the lawyer,
(j) any estimate or range of fees given by the lawyer, and
(k) the client’s prior consent to the fee.
•
3.6-2: Subject to rule 3.6-1, except in family law or criminal or quasi-criminal matters, a
lawyer may enter into a written agreement in accordance with the Solicitors Act and the
regulations thereunder, that provides that the lawyer’s fee is contingent, in whole or in part,
on the successful disposition or completion of the matter for which the lawyer's services are
to be provided. criminal and family law matters cannot have contingency fees
o Commentary 1: the greater the risk by taking on the case, the greater the percentage
the lawyer can take. However, the test remains whether the fee is fair and reasonable.
•
3.6-5: With the client’s consent, fees for a matter may be divided between licensees who
are not in the same firm, if the fees are divided in proportion to the work done and the
responsibilities assumed.
•
3.6-6: A lawyer who refers a matter to another licensee because of the expertise and ability
of the other licensee to handle the matter and the referral was not made because of a conflict
of interest, the referring lawyer may accept and the other licensee may pay a referral fee
provided that
o (a) the fee is reasonable and does not increase the total amount of the fee charged to
the client, and
o (b) the client is informed and consents.
86
•
3.6-7: A lawyer shall not (a) directly or indirectly share, split, or divide their fees with any
person who is not a licensee, or (b) give any financial or other reward to any person who
is not a licensee for the referral of clients or client matters.
•
3.6-10: A lawyer shall not appropriate any funds of the client held in trust or otherwise
under the lawyer's control for or on account of fees except as permitted by the by-laws under
the Law Society Act.
Withdrawal from Representation
•
3.7-1: A lawyer shall not withdraw from representation of a client except for good cause and
on reasonable notice to the client.
o Commentary 1: the client can terminate relationship at will
o Commentary 3: the withdrawal should occur at an appropriate time in the
proceedings in keeping with the lawyer’s obligations. The court, opposing party
and others should be notified as well.
•
3.7-2, Commentary 1: reasons for withdrawal
o serious loss of confidence in relationship
o non-payment of fees
•
3.7-7: mandatory withdrawal by lawyer if
o (a) discharged by client
o (b) the client’s instructions require the lawyer to act contrary to these rules or by-laws
under the Law Society Act
o (c) the laywer is not competent to handle the matter
Lawyer as Advocate
•
5.1-1: When acting as an advocate, a lawyer shall represent the client resolutely and
honourably within the limits of the law while treating the tribunal with candour, fairness,
courtesy, and respect.
▪ Commentary 1: In adversarial proceedings, the lawyer must do whatever
is necessary to protect client’s interests as long as you balance it with
respect for the administration of justice and the judicial system
▪
▪
Commentary 3: The lawyer’s function as advocate is openly and
necessarily partisan. Accordingly, the lawyer is not obliged (except as
required by law or under these rules and subject to the duties of a prosecutor
set out below) to assist an adversary or advance matters harmful to the client’s
case.
Commentary 8: In civil proceedings, a lawyer should avoid and
discourage the client from resorting to frivolous or vexatious objections,
87
attempts to gain advantage from slips or oversights not going to the merits or
tactics that will merely delay or harass the other side. Such practices can
readily bring the administration of justice and the legal profession into
disrepute.
•
5.1-2: When acting as an advocate, a lawyer shall not
o (a) abuse the process of the tribunal by instituting or prosecuting proceedings
which, although legal in themselves, are clearly motivated by malice on the
part of the client and are brought solely for the purpose of injuring the other
party,
o (b) knowingly assist or permit the client to do anything that the lawyer
considers to be dishonest or dishonourable,
o (c) appear before a judicial officer when the lawyer, the lawyer's associates or
the client have business or personal relationships with the officer that give rise
to or might reasonably appear to give rise to pressure, influence, or
inducement affecting the impartiality of the officer, unless all parties consent
and it is in the interests of justice,
o (d) endeavour or allow anyone else to endeavour, directly or indirectly, to
influence the decision or action of a tribunal or any of its officials in any case
or matter by any means other than open persuasion as an advocate,
o (e) offering false evidence, misstating facts or law, presenting or relying upon
a false or deceptive affidavit, suppressing what ought to be disclosed, or
otherwise assisting in any fraud, crime, or illegal conduct,
o (f) knowingly misstate the contents of a document, the testimony of a witness,
the substance of an argument, or the provisions of a statute or like authority,
o (g) knowingly assert as true a fact when its truth cannot reasonably be
supported by the evidence or as a matter of which notice may be taken by the
tribunal,
o (h) make suggestions to a witness recklessly or knowing them to be false;
o (i) deliberately refrain from informing the tribunal of any binding authority
that the lawyer considers to be directly on point and that has not been
mentioned by an opponent,
o (j) improperly dissuade a witness from giving evidence or advise a witness to
be absent,
o (k) knowingly permit a witness or party to be presented in a false or
misleading way or to impersonate another,
88
o (l) knowingly misrepresent the client’s position in the litigation or the issues
to be determined in the litigation;
o (m) needlessly abuse, hector, or harass a witness,
o (n) when representing a complainant or potential complainant, attempt to gain
a benefit for the complainant by threatening the laying of a criminal charge or
by offering to seek or to procure the withdrawal of a criminal charge,
o (o) needlessly inconvenience a witness; or
o (p) appear before a court or tribunal while under the influence of alcohol or a
drug.
•
5.1-3.1: Where the rules of a tribunal require the parties to produce documents
or attend on examinations for discovery, a lawyer, when acting as an advocate
o (a) shall explain to their client
▪ (i) the necessity of making full disclosure of all documents relating to
any matter in issue, and
▪ (ii) the duty to answer to the best of their knowledge, information, and
belief, any proper question relating to any issue in the action or made
discoverable by the rules of court or the rules of the tribunal;
o (b) shall assist the client in fulfilling their obligations to make full disclosure;
and
o (c) shall not make frivolous requests for the production of documents or make
frivolous demands for information at the examination for discovery.
•
5.1-4: A lawyer who has unknowingly done or failed to do something that if done or
omitted knowingly would have been in breach of the rules in Section 5.1 and who
discovers it, shall, subject to the rules in Section 3.3 (Confidentiality), disclose the
error or omission and do all that can reasonably be done in the circumstances to
rectify it.
•
5.1-5: A lawyer shall be courteous, civil, and act in good faith to the tribunal and
with all persons with whom the lawyer has dealings.
•
5.1-6: A lawyer must strictly and scrupulously fulfill any undertakings given by him
or her and honour any trust conditions accepted in the course of litigation.
•
5.2-1: A lawyer who appears as advocate shall not testify or submit their own
affidavit evidence before the tribunal unless (a) permitted to do so by law/the
tribunal/the rules; (b) the matter is purely formal or uncontroverted.
•
5.3: There’s no ownership in a witness; a lawyer can interview other side’s
witnesses but they don’t have to talk to you.
o you can’t pay witness not to show up or save the evidence
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•
5.4: Subject to the direction of the tribunal, the lawyer shall observe the following
rules respecting communication with witnesses giving evidence:
o (a) during examination-in-chief, the examining lawyer may discuss with the
witness any matter that has not been covered in the examination up to that
point;
o (a.1) during examination-in-chief by another legal practitioner of a
witness who is unsympathetic to the lawyer's cause, the lawyer not
conducting the examination-in-chief may discuss the evidence with the
witness.
•
5.5-1: When acting as an advocate, before the trial of a case, a lawyer shall not
communicate with or cause another to communicate with anyone that the lawyer
knows to be a member of the jury panel for that trial.
•
5.5-2: Unless the judge and opposing counsel have previously been made aware of
the information, a lawyer acting as an advocate shall disclose to them any
information of which the lawyer is aware that a juror or prospective juror
o (a) has or may have an interest, direct or indirect, in the outcome of the case;
o (b) is acquainted with or connected in any manner with the presiding judge,
any counsel or any litigant; or
o (c) is acquainted with or connected in any manner with any person who has
appeared or who is expected to appear as a witness.
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•
5.5-3: A lawyer shall promptly disclose to the court any information that the
lawyer reasonably believes discloses improper conduct by a member of a jury
panel or by a juror.
•
5.5-4: Except as permitted by law, when acting as an advocate, a lawyer shall not
during a trial of a case communicate with or cause another to communicate with
any member of the jury.
Responsibility of Lawyers to Others
•
7.2-1: A lawyer shall be courteous, civil, and act in good faith with all persons with
whom the
•
7.2-2: A lawyer shall avoid sharp practice and shall not take advantage of or act without
fair warning upon slips, irregularities, or mistakes on the part of other legal practitioners
not going to the merits or involving the sacrifice of a client's rights.
•
7.2-3: A lawyer shall not use any device to record a conversation between the lawyer
and a client or another legal practitioner, even if lawful, without first informing the other
person of the intention to do so.
•
7.2-4: A lawyer shall not in the course of professional practice send correspondence or
otherwise communicate to a client, another legal practitioner, or any other person in a
manner that is abusive, offensive, or otherwise inconsistent with the proper tone of a
professional communication from a lawyer.
•
7.2-5: A lawyer shall answer with reasonable promptness all professional letters and
communications from other legal practitioners that require an answer, and a lawyer shall
be punctual in fulfilling all commitments.
•
7.2-6: A Subject to rule 7.2-7, if a person is receiving legal services from a legal
practitioner under a limited scope retainer on a particular matter, a lawyer may,
without the consent of the legal practitioner, approach, communicate or deal
directly with the person on the matter, unless the lawyer receives written notice of the
limited nature of the legal services being provided by the legal practitioner and the
approach, communication or dealing falls within the scope of the limited scope retainer.
•
7.2-7: A lawyer who is not otherwise interested in a matter may give a second opinion
to a person who is represented by a legal practitioner with respect to that matter.
•
7.2-8: A lawyer retained to act on a matter involving a corporation or organization
that is represented by a legal practitioner shall not, without the legal practitioner’s
consent or unless otherwise authorized or required by law, communicate, facilitate
communication or deal with a person
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o (a) who is a director or officer, or another person who is authorized to act on
behalf of the corporation or organization;
o (b) who is likely involved in decision-making for the corporation or organization
or who provides advice in relation to the particular matter;
o (c) whose act or omission may be binding on or imputed to the corporation or
organization for the purposes of its ability; or
o (d) who supervises, directs or regularly consults with the legal practitioner and
who makes decisions based on the legal practitioner’s advice.
•
7.2-9: When a lawyer deals on a client’s behalf with an unrepresented person, the
lawyer shall:
(b) take care to see that the unrepresented person is not proceeding under the
impression that their interests will be protected by the lawyer; and
o (c) take care to see that the unrepresented person understands that the lawyer is
acting exclusively in the interests of the client and accordingly their comments
may be partisan.
o
•
7.2-10: A lawyer who receives a document relating to the representation of the lawyer's
client and knows or reasonably ought to know that the document was inadvertently sent
shall promptly notify the sender.
•
7.2-11 Deals with undertakings
•
7.5-1: Provided that there is no infringement of the lawyer’s obligations to the client, the
profession, the courts, or the administration of justice, a lawyer may communicate
information to the media and may make public appearances and statements.
•
7.5-2: A lawyer shall not communicate information to the media or make public
statements about a matter before a tribunal if the lawyer knows or ought to know that the
information or statement will have a substantial likelihood of materially prejudicing a
party’s right to a fair trial or hearing.
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Small Claims Court
Introduction
•
•
•
Civil claims of maximum $25,000
Is a branch of the Superior Court of Justice
It’s designed to be the “people’s court” for lay people to get justice without the need of a
lawyer
•
•
It has all the hallmarks of a traditional trial with some relaxed rules
It’s the busiest court in Ontario
Courts of Justice Act
o
o
o
o
o
o
o
o
S. 22(1): is a branch of Superior Court
S. 22 (3): all Superior Court judges are Small Claims judges
S. 23: jurisdiction
S. 24(1): composition of court for hearings
S. 24(2): provincial judge or deputy judge may preside
S. 25: summary hearings; this is an exampled of a relaxed rule
S. 26: representation is not necessary; court can exclude anyone from hearing
S. 27(1): admissible evidence; this is an exampled of relaxed evidentiary rules
▪ Under this rule, hearsay is admissible
▪
o
o
o
o
o
Overall, it allows us to admit more evidence and act upon that evidence than in a
traditional trial
S. 27(2): using evidence from other court
S. 27(3): rules of privilege still apply
S. 27(4): doesn’t override legislation barring evidence
S. 27(5): copies of documents
S. 29: limit on costs
▪ There’s a cap of 15% of the amount claimed, not the amount awarded
▪ The court has discretion in the percentage it awards the successful party
▪ Latter part of the section is similar to substantial indemnity; if it’s in the
interests of justice to penalize a party for unreasonable behavior, the court may
exceed the 15% cap
o S. 30: contempt hearings
▪ (1): A person who doesn’t attend may be found in contempt of court
▪ (4): If found in contempt, may be imprisoned for up to five days. This power to
imprison someone only rests with Superior Court justices (not deputy justices)
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o S. 31: appeals
▪ Appeals go to Division Court (a branch of the Superior Court – only in Toronto,
Ottawa, or Windsor) BUT YOU CAN also appeal to a local superior court judge
who sits as a judge of the Divisional Court
▪ Can only appeal matters over $2500
▪ Cannot appeal interlocutory orders from this court (i.e. an order on a motion)
o S. 32: deputy judges
▪ (1): senior judge of Superior Court can appoint deputy lawyer to act as deputy
judge
▪
▪
(2): term of three years, and generally renewed
(3): once 65-75 years old, terms are for one year; mandatory retirement at 75
Small Claims Court Rules
o General principles are the same as the Rules of Civ. Pro.
o MAJOR DIFFERENCE: the discovery process
▪ there’s no discovery in Small Claims (no documentary discovery – affidavit of
documents AND no examination for discovery)
▪ however, there is settlement conference
▪ no mediation requirement
▪ there is a hearing with the relaxed rules of evidence
o 1.03(1) - These rules shall be liberally construed to secure the just, most expeditious and
least expensive determination of every proceeding on its merits in accordance with section
25 of the Courts of Justice Act.
o 1.03(2) - If these rules do not cover a matter adequately, the court may give directions
and make any order that is just, and the practice shall be decided by analogy to these rules,
by reference to the Courts of Justice Act and the Act governing the action and, if the court
considers it appropriate, by reference to the Rules of Civil Procedure.
▪ however, the simplified rules don’t allow for certain types of principles – i.e. security
for costs, discovery, etc. – which are principles that the simplified rules
fundamentally reject
o 1.05 – A document in a proceeding shall be printed, typewritten, written or reproduced
legibly.
o documents are form-heavy
o 2.01 - A failure to comply with these rules is an irregularity and does not render a
proceeding or a step, document or order in a proceeding a nullity, and the court may grant all
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o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
necessary amendments or other relief, on such terms as are just, to secure the just
determination of the real matters in dispute.
2.02- If necessary in the interest of justice, the court may dispense with compliance with
any rule at any time.
3.01 – computation of time
▪ there’s no weekend/holiday rule in this court
4.01 – need for litigation guardian when applicable
6.01(1) - where an action can be brought and then tried
6.01(2) – exceptions to (1)
7.01(2) – contents of plaintiff’s claim and attachments
▪ (2) if you have relevant documents, you must attach them to plaintiff’s claim
7.03(1) – issuing claims
▪ when the registrar issues the claim by dating, signing and sealing it, and assigning it a
court number
8.01(1) – plaintiff’s claim must be personally served
8.02(2) – service must be within six months of issue being claimed
8.01(7)- summons of witnesses must be served personally
8.01(8)- notice of garnishment can be served by mail
8.02(9)- notice of garnishment hearing shall be served by the person requesting the
hearing on the creditor, debtor, garnishee and co-owner of the debt, if any, and any other
interested persons by mail, by courier, personally
8.02(13) – notice of contempt hearing must be served personally
8.04 – substituted service if you can’t serve personally (i.e. usually by mail)
9.01 – defendant must file defence within 20 days
9.02 – contents of defence
10.01 – defendant can bring claim to sue plaintiff (not called a cross-claim) BUT there
must be a connect – arising out of the same transaction or occurrence of P’s claim
10.02 – defendant’s claim must be issued within 20 days after defence is filed
11.01(1) – noting defendant in default
o 11.02(1) – once noted in default, clerk can sign default judgment
▪ liquidated demand= sum certain (the amount in contemplation is certain, like
when you are owned money for a service you performed) vs. unliquidated
demand (when assessing the value of something is difficult and uncertain)
o 11.03 – for unliquidated damages, you must bring a motion for an assessment and prove
this to judge
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o 11.06 – setting aside nothing of default judgment (3-part test: not all factors need to be
satisfied in order to set aside the default)
▪ party has meritorious defence
▪ party has reasonable explanation for the default
▪ motion made as soon as reasonably possible
o 11.1.01(1) – dismissal
▪ if you don’t do something within timeframe prescribed by rules, the clerk will dismiss
your claim. You must either have defeated noted in default or ask for an order
dismissing an action for delay
o 12.01(1) – you can amend a claim anytime as long as it’s within 30 days of original trial
date
o 12.02 – motion to strike out or amend a document
▪ this is similar to a SJ motion
▪ note (c)
o 13.02(1)– settlement conferences shall be had for every defended action before a deputy
judge
▪ the principles are the same as in the traditional system
o 13.02(1) – a party and their representative must attend conference in person or by
telephone
o
o
o
o
o
13.03(1) – purposes of settlement conference
13.03(2) – disclosure; obligation to produce information you’re relying on
14.01 – offers to settle must be in writing and can be made anytime
14.02 - there are potential cost consequences for making an offer to settle
14.07 – cost consequences of failure to accept
▪ (1) P’s offer: cost award can be doubled (doesn’t deal with indemnity scale)
•
o
o
o
o
court always has discretion to award costs at a maximum of 15% of the
amount claim (s. 29 CJA); so when there is a settlement offer and no
acceptance, the court has discretion to award costs up to 30% of amount
claimed
▪ (2) D’s offer: cost award can be doubled (doesn’t deal with indemnity scale)
15 – motions (notice of motion + affidavit in support are required)
18.01 – allows P’s case to be provided by affidavit
18.02 – written statements, documents and records must be served at least 30 days
before the trial date, and if so, the court has no discretion; it must admit it as evidence
▪ (5): where witnesses or authors are summoned
19.01 – reasonable disbursements
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19.02 – limits on costs (subject to s. 29 of CJA)
19.05 – compensation for inconvenience and expense
19.06 – penalty for complication, delay or being unreasonable
20.06 – writ of seizure and sale of personal property
20.07 – writ of seizure and sale of land
20.08 – garnishment proceedings
20.10(1), (4) – opportunity to examine debtors to determine why they haven’t paid, their
ability to pay, their intention to pay, their assets/liabilities
o 20.11 – contempt hearings
o
o
o
o
o
o
o
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Class Proceedings
•
Why may a P get different result than other P:
o Judges are different
o Jurisdiction
o Damages may be different/Ps were injured differently
o Strength of Ps based on what lawyers/experts they can retain
Policy Reasons for Allowing Class Actions
•
1. Judicial efficiency & consistent judicial decisions/avoiding inconsistent judicial
decisions
o Concern with RJ (abuse of process) was with “wait and see Ps”, which could be a
waste of time/money. It could also create inconsistent decisions across Canada. One
way to deal with that is to group the Ps together.
•
2. Access to justice
o i. some people may not be able to afford litigation on their own
o ii. some causes on their own aren’t worth suing over, but together, there is a large
enough injury to commence a suit
•
3. Behavior modification
o usually applies in product liability cases. A maker of a product won’t want to be sued
by all their customers on class basis for the defective product, so they will likely
change their product
Class proceeding= a representative P commencing a suit based on D on behalf of a larger group
of people (a class).
o Class proceedings came to Ontario in 1992 through the Class Proceedings Act
Main requirements under the Class Proceedings Act (s. 5)
•
1. There must be a cause of action
o TEST for reasonable cause of action:
▪ 1. All allegations of fact must be accepted as proven/true for evaluating
▪
▪
•
whether it’s a reasonable cause of action they are unless patently ridiculous.
2. In order to be successful, the D must show that it’s plain and obvious
beyond a doubt that the Ps cannot succeed (onus is on D in proving there is a
not a cause of action)
3. Just because it’s a novel cause of action doesn’t mean the P can succeed.
• 4. The statement of claim must be read as generously as possible.
2. There must be an identifiable class of two or more persons
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o TEST for identifiable class:
▪ The class cannot be unnecessarily broad. If the class can be more narrowly
defined, than it’s not properly framed before the court, and certification of the
class should be denied.
•
3. The claims of the class must raise common issues
o Is there a common issue with the claims and defences?
o TEST for common issues:
▪ Will allowing the suit to proceed as a representative one avoid duplication of
fact-finding or legal analysis?
o We look at this test for a fact-finding or legal analysis point of view.
•
4. A class action must be the preferable procedure
o TEST for preferable procedure (SCC):
▪ 1. Whether of questions of fact or law common to the members of the class
predominate over any questions affecting only individual members
▪ 2. Whether a significant number of members of the class have a valid interest
in individually controlling the prosecution of a separate action
•
▪
Does it make more sense that each member controls their own destiny
based on the individual circumstances
3. Whether the class proceeding would involve claims that are or have been
▪
subjects of other proceedings
4. Whether other means of resolving the claim are less practical or efficient
▪
• Which is the more efficient way of proceeding?
5. Would the administration of a class create more or greater difficulties than
by proceeding by another fashion
•
•
Is it too cumbersome to deal with all members in the class or is there a
more efficient way of proceeding?
5. The representative plaintiff must fairly and adequately represent the interests of the
class. The representative plaintiff must not have a conflict with the common issues of the
class. They must have a workable plan for proceeding with the action.
o TEST for adequately representing the class (SCC):
▪ 1. The motivation of the representative
▪ 2. The competence of the representative’s counsel
▪ 3. The capacity of the representative to bear any costs that may be incurred by
the representative.
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▪
4. The representative P need not be typical of the class or the best
representative, but the Court must satisfied that the representative will
vigorously and capably prosecute the interests of the class.
Other features of class actions
•
1. Notice: the P must give notice to members of the class. This is usually done through the
internet/newspaper. (s. 2(2), (3))
•
2. Opting out: a person has the right to opt out of the class and if they opt out, they are not
bound by the determination of the class proceeding. (s. 9)
•
3. Discovery: the parties can only discover the named parties. (s. 15(1), (2))
o No P other than the represented P can be examined.
•
4. Settlements: Settlements must be approved by the court. Because you’re binding many
people to a decision, it’s not appropriate only for the representative P to accept settlement on
behalf of everyone. (s. 29 (1), (2), (3))
o Reason for this is to protect class members who don’t know they are members of the
class or don’t have a say in the proceeding. It also stems from the conflicting interests
between the class’ lawyer (who wants a big pay-out) and the Ps he’s representing.
•
5. Fee-shifting: The rules of fee-shifting apply in class proceedings (i.e. the loser pays costs,
subject to the discretion of the court) (s. 31(1), (2))
•
6. Class counsel’s fees: The lawyer’s fees must be approved by the court. The fees are
generally calculated by using a multiplier (hours x rate) OR a contingency fee, or a
combination of the two. (s. 32(2))
•
7. Precedential value of judgment: It is still undetermined whether a class proceeding in
ON binds all of Canada.
Who pays?
•
The court approved the scheme of having external wealthy investors finance the class action.
They would receive their money back first from the damages + 20%. This is an issue of
champerty and maintenance. Champerty= someone not directly involved in action but has a
financial stake in the outcome. Issues arise if the Ps lose, and D wants to go after the
investor.
Class Proceedings Act
Structured on the US Federal Proceedings Act
•
•
S. 2(1) – who can start proceeding
S. 2(2), (3) – motion for certification must be certified by court within 90 days
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•
•
•
•
•
•
•
•
•
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S. 4 – class defendants
S. 5 – certification (test)
S. 6 – certain matters not bar to certification
S. 7 – refusal to certify
S. 9 – opting out; specifies time by which a member must opt out
S. 15(1) – discovery of the parties
S. 15(2) – you can apply for leave to discover other class members
S. 17 – how to give notice
S. 29(1) – settlement
S. 29(2) – settlement is not binding unless approved by the court
•
•
S. 29(3) – settlement binds all class members
S. 31(1) – costs; court has discretion to impose costs on P in certain circumstances (test case,
novel case, etc.)
•
•
•
•
•
S. 31(2) – class members are not responsible for costs
S. 32(1) – fees and disbursements must be in writing
S. 32(2) – court must approve lawyer’s fees
S. 33 – agreements for payment only in the event of success (champerty)
S. 35 – rules of court
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