Greg Koenderman – JICP – Winter 2011
2. OVERVIEW OF PURPOSES AND REFORM OF CIVIL PROCEDURE
6
Jolowicz, “On the Nature and Purpose of Civil Procedural Law” P. 26 – substantive v. procedural law, purpose of
procedural law
7
Principles ALI/UNIDROIT: Introduction P. 1 –
8
Principles ALI/UNIDROIT: Principles of transnational procedure (38) –
8
CCP art. 2
8
INSTITUTIONS OF CIVIL JUSTICE AND THE STRATEGIES OF LITIGANTS
8
PURPOSES AND REFORM OF CIVIL PROCEDURE
8
WHAT IS PROCEDURAL LAW?
8
WHAT ARE, OR OUGHT TO BE PROCEDURAL LAW GOALS OR UNDERLYING VALUES?
9
WHAT ARE THE PROBLEMS OF THE CIVIL JUSTICE SYSTEM? (WOOLF IDENTIFIES THE FOLLOWING:)
10
THE COST OF LITIGATION AND ABUSES OF THE CIVIL JUSTICE PROCESS
10
LAWYER’S FEES
10
WOOLF REPORT
12
Report of the Civil Procedure Revire Committee: A new Judicial Culture (2001) P. 44 –
12
Access to Justice – Interim report to the Lord Chancellor… (Lord Woolf’s Report) p. 54.
13
Lachapelle et al., « Le monde judiciaire malade de sa justice » et « Des solutions pou la justice civile » P. 63 – the
judicial world is sick and solutions to fix it.
14
McMurtry, “We are not all equal before the law” P. 65 – High cost of litigation is deny justice
14
Landry, “Pilot project to speed up Justice: Positive Results” P. 68 –
14
JUDICIAL INSTITUTIONS – ORGANIZATION
14
THE COURT SYSTEM AND SUBJECT-MATTER JURISDICTION
RECENT INNOVATION IN CANADA’S COURT SYSTEM
 GROWTH OF TRIBUNALS HAS TAKEN SPECIFIC CASES OUT OF THE COURT SYSTEM
2 TYPES OF JURISDICTION
CANADIAN CONSTITUTION
HOW ARE JUDGES APPOINTED?
FEDERAL COURTS
COMPLICATING FACTORS
Department of Justice, Canada’s Court System (Mycourses)
MacMillan Bloedel v. Simpson (1995, SCC, BC), p. 69; Superior Courts inherent jurisdiction upheld; cannot be
reduced w/out constitutional amendment
ONTARIO - Courts of Justice Act (CJA) R.S.O., ON; 11, 23, 34, 38, 106 – Superior Courts
Federal Courts Act – Jurisdiction of Federal Courts, p. 21
CMN – R v. Zolotown, 2008, p. 81– Concurrent Jurisdiction of Superior Court
14
15
15
15
15
16
16
17
18
APPELLATE COURTS AND THEIR JURISDICTION
20
KEY FEATURES
ROLE OF THE APPELLATE COURTS
STARDARD OF REVIEW
CCP 25 – 31 – The Appeals Court
Ontario Court of Justice Act ss. 6, 8, 18, 19. The Court of Appeal
CML - Housen v. Nikolaisen [2002] SCC, p. 82; Standard of Review
CMN – H.L. v. Canada, SCC, 2005, p. 93– Standard of Review; Appellate Court only trump TJ if palpable and
overriding error
Pape and Adair, Unreasonable Review (2008) p. 104 – Standard of Review is too harsh on losing parties; HL
changed the standard of review in Housen
20
20
20
22
22
22
18
19
19
19
23
23
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Greg Koenderman – JICP – Winter 2011
JUDICIAL INSTITUTIONS - FUNDAMENTAL PRINCIPLES
24
PUBLICITY OF JUDICIAL PROCEEDINGS
24
PUBLICITY AND THE OPEN COURT PRINCIPLE
24
EXCEPTIONS TO OPEN COURT
25
CML – Dagenais v. CBC [1994] SCC P. 108 – Publication Ban Test
25
Sierra Club of Canada v. Canada [2002] SCC P. 115 – Dagenais test adapted to Confidentiality Orders
26
Boeing Satellite v. Telesat (2007), P. 123 – ON SC – Sealing order denied, Important Commercial Interest defined
26
CCP 13 and 815.4 – Sitting of Courts is Public; prohibition to identify a party to a proceeding
28
P. 18 – Ontario Courts of Justice Act (CJA) s. 135 – Public Hearings
28
p. 10 - ALI/UNIDROIT Principle 20 - Public Proceedings
28
K. Roach, “Let the Light Shine In” p. 131 – Publicity Bans should be restricted
28
J.L. v. A.N. (1998), p. 127; Cour Sup. QC. – Publication Ban denied; intimate/sexual details do not justify pub ban
28
Globe and Mail v Canada (2010), p. 132; SCC – Publication Bans; Dagenais Test upheld
29
JUDICIAL INDEPENDENCE AND IMPARTIALITY GENERALLY
29
P. 15 - ALI/Unidroit Principle 1 - Independence, Impartiality, and qualifications of judges!!
IMPARTIALITY
ENSURING INDEPENDENCE (WHAT KEEPS JUDGES INDEPENDENT?)
CML – Caperton v Massey Coal, US SC; 2009, p. 153; 40 reasons why a judge should recuse
IBA Minimum Standards of Judicial Independence
Posner, “How Judges Think”, p. 141; judges terms, salaries, and non-pecuniary wages
Bastarache Report
29
29
29
31
31
31
32
JUDICIAL APPOINTMENTS / IMPARTIALITY
32
3 MAJOR METHODS OF APPOINTMENT
32
CANADIAN AND AMERICAN APPROACHES
32
J. Lanzinger, “A Personal Reflection on Judicial Elections” P. 149 33
IMPARTIALITY II
33
TEST OF IMPARTIALITY
34
APPLICATION OF THE TEST
34
ADDITION AL FACTORS/DIFFICULTIES
35
WHO DECIDES WHETHER A JUDGE IS NOT IMPARTIAL
35
CML - Wewayakum Indian Band v. Canada [2003] SCC, P. 500; Reasonable Apprehension of Bias test for judge to
recuse
36
CVL- Whightman v. Widdrington (2007 QC CA) P. 202; 12 year litigation, apprehension of judge bias (rejected)
37
CML - R.D.S. v. The Queen, SCC, 1997, p. 217; Impartiality; test for apprehension of bias; judge can rely on
experience.
38
JUDICIAL ETHICS AND JUDICIAL ACCOUNTABILITY
39
WHO (SHOULD) HOLDS THE JUDGE ACCOUNTABLE? (WHO WATCHES THE WATCHMEN?)
39
WHAT IS THE STANDARD?
39
HOW DO WE RESOLVE TENSION BETWEEN ACCOUNTABILITY AND INDEPENDENCE
39
FEDERAL: CANADIAN JUDICIAL COUNCIL
40
FEDERAL SOLUTIONS
40
PROVINCIAL SOLUTIONS: QUEBEC?
40
M. Cappelletti, “Who Watches the Watchmen?” P. 243 41
CVL - Therrien (Re), SCC, 2001, P. 270 – Removal of Judge; Criminal record is relevant consideration for judicial
integrity
42
2
Greg Koenderman – JICP – Winter 2011
BASIC PRINCIPLES OF (PRE-TRIAL) CIVIL PROCEDURE
43
OVERVIEW OF THE PRE-TRIAL PHASE IN QUEBEC AND ONTARIO
OVERARCHING THEMES
QUEBEC PRE-TRIAL PROCESS
CVL – Lanoue v. Megaarbane; p. 304; QC Sup Crt; Example of entire pre-trial process.
CVL - Arguin v. Nault (2007) QC SC, p. 318; CCP art. 110.1 strictly applied ; 180 rule enforced despite lawyers
error
ONTARIO PRE-TRIAL PROCESS
CML – Mohamed v Banville, p.322, ON Sup Crt, 2009; Motion for Summary Judgement (Granted)
CML – Healey v Lakeride Health, 2010, p. 329, ON Sup Crt; New test for Summary Judgement; Rule 20
43
43
43
46
PLEADINGS AND SERVICE
50
47
47
50
50
HOW MUCH IS ENOUGH?
50
FACT PLEADINGS VERSUS NOTICE PLEADINGS
50
CML - Ashcroft v. Iqbal (2009) US SC, p. 359; Higher standard set for Notice pleadings – req “factual plausibility”
51
RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS
52
ENFORCEMENT OF FOREIGN JUDGMENTS
53
CML - Beals v. Saldanha [2003] SCC, p. 335, Enforcement of foreign judgement; domestic defences to refuse
enforcement of foreign judgement; result of Notice Pleading.
53
Pitel, S.G.A., “Enforcement of Foreign Judgements: Where Morguard stands after Beals”, p. 414
54
STATEMENT OF CLAIM
54
CCP 76, 111, 118, 119, 168 (1) and 168(2) (7) - Statement of Claim
54
Ontario Rules 25.06, 25.10 Rules of Pleadings
54
US Federal Rules of Civil Procedure (Rule 8), p. 8; Notice Pleading
54
Scott Dodson, “Comparative Convergences in Pleading Standards”, p. 348
54
SERVICE
55
CVL - 9026-8863 Quebec inc. v. Best Buy Canada Ltd [2006] Que. C.S. and C.A., p. 366, 2006, BB ignores service,
has default judgement rendered, given second chance to make their case.
55
CVL – 9026 Quebec v Bestbuy, QC Sup Crt, p. 366, 2006, BB ignores service, has default judgement rendered,
given second chance to make their case.
56
THE RIGHT TO INVOKE THE JURISDICTION OF THE COURTS
56
JURISDICTION AND GEOGRAPHY
56
TWO JURISDICTIONAL ISSUES
56
GEOGRAPHIC JURISDICTION IN CROSS BORDER SITUATIONS
56
ALI/Unidroit, Principle 2; Jurisdiction of Courts over parties, Real and Substantial Connection
58
Ontario Rules of Civil Procedure, Rule 17 - Service
58
CCQ 3134 -3154 (article 3148 in particular) – Substantive Jurisdiction of QC Courts
58
CVL - Spar Aerospace Ltée v. American Mobile Satellite Corp (2002) SCC P. 372 – Appropriateness of Forum; Real
& Substantial Connection Test in CVL Rejected, CCQ adequately defines correct jurisdiction
58
CML – Van Breda v. Village Resorts Ltd, 2010, p. 383, ON CoA; ON jurisdiction over out-of-province defendants
59
CHOICE OF FORUM CLAUSES
60
CML - Z.I. Pompey Industrie v. ECU-Line (2003) SCC, p. 390 – Test for stay of proceeding to enforce foreign
selection clause
60
CML - Carnival Cruise Lines v. Shute (1991) US SC - P. 393 – Escape forum sélection clause, heavy burden
61
CVL - GreCon Dimter Inc. c. J.R. Normand Inc. (2005) SCC; p. 399 – QC primacy of choice of forum over
jurisdiction of QC Courts.
62
Gilles Thibeault, “Application of the Forum Selection Clause”, p. 412, 2010
63
THE PERSONAL NATURE OF THE RIGHT TO INVOKE THE JURISDICTION OF THE COURT
63
3
Greg Koenderman – JICP – Winter 2011
Consumer Protection Act, RSQ, art. 316 p. 2-1 – Deemed interest to sue (statutory ability to sue)
64
CVL – Cap-Rouge v Cdn (Min of Communications), 1985, Fed Crt of Cdn p. 4– Municipality does not have
sufficient interest to plead
64
CML/CVL - Borowski v. Canada (1989) SCC, p.2-6; Mootness Doctrine: 1) live controversy, 2) discretion to decide
65
Canadian Council of Churches v. Canada (1992) SCC p. 2-11; Public Interest Standing Test
65
Alliance for Marriage and Family v. A.A. SCC 2007, p. 2-17; Intervener seeks to Appeal as Private applicant:
Denied
66
VEXATIOUS LITIGANTS
66
CVL - Productions Pixcom Inc. v. Fabrikant [2005] QCCA; p. 20, Vexatious Litigants declaration
67
PRESERVATION OF RIGHTS: PROVISIONAL AND PROTECTIVE MEASURES
67
ALI/Unidroit Principle 8 – Provisional and Protective Measures
67
INTERLOCUTORY INJUNCTION
68
RJR – RJR Macdonald Inc. v Canada (1994) SCC p. 2-25; Interlocutory Injunction; stay of Proceedings
69
CCP 751-761; INJUNCTION
69
Ontario Courts of Justice Act 101 and 102 – Interlocutory Orders
69
Ontario Rule 40 – Interlocutory Injunction
69
PROTECTION OF THE OBJECT OF LITIGATION
70
CML - Tracy v. Instaloans (2007) BC CoA, p. 36; Mareva Injunction; freezing assets, test
71
CCP 733, 742 – Seizure before judgement & Sequesteration of Property
71
Courts of Justice Act 101 and 104 – Interlocutory judgement
72
Ontario Rules of Civil Procedure 41, 44, 45 – Appointment of Receiver, Interim Recovery of Personal Property,
Interim Preservation of Property
72
PROTECTION OF EVIDENCE – ANTON PILLER ORDERS
72
CML - Celanese Canada Inc v. Murray Demolition Co. (2006) SCC; p. 47; Anton Pillar Order
74
CMN – Vinod Chopra v John Doe, Federal Court; 2010, p. 61- Rolling Anton Piller Order; Review of APO
75
PLURALITY OF PARTIES (AND ISSUES & CAUSES OF ACTIONS)
76
ALI/Unidroit Prinicples 12 and 13 – Multiple claims and parties, Amicus Curiae
PLURALITY OF DEFENDANTS AND PLURALITY OF PLAINTIFFS
CVL - Saint-Martin v. Fédération des Enseignants des Ecoles Juives [2002] Que CS, p. 72; disjoinder
CCP 66, 67, 273.1 - Joinder of Causes of Action and Parties
Ontario Rules: 5.02, 5.04, 5.05 – Joinder of Claims and Parties; misjoinder
CROSS-CLAIMS AND COUNTERCLAIMS
CCP 172
Ontario Rules: 27 and 28 – Counter Claim & Cross Claim
FORCED INTERVENTION OF A THIRD PARTY
CVL - Fonds d’Assurance-Responsabilité du Barreau v. Gariepy [2005] Que CA, p. 79; impleading in FAILED;
Necessary v. utility of impleading; SHARED Liability
CVL - Kingsway General Insurance c Duvernay [2009] QC CoA, p. 82; Forced Intervention; PASS ON LIABILITY
CCP 216-222 – Forced Intervention or Joinder of Parties
Ontario Rules 5.03, 29 - Joinder of Claims and Parties
VOLUNTARY INTERVENTION OF A THIRD PARTY
CML - Beardon v Lee [2005] ON SC, p. 97; Intervenor Test; Granted
CML - School of Dance (Ottawa) v Crighton CCC [2005] ON SC, p. 100; Request to be added as defendent
CCP 208-215 – Participation of Third Parties in the Action – Voluntary Intervention
Ontario Rules 13 – Intervention – as added party, friend of the Court
CONSOLIDATION OF SEPARATE ACTIONS
CCP 270-272, 509 – Joinder of Separate Actions.
Ontario Rule of Procedure # 6 Consolidation or Hearing Together
Courts of Justice Act 107 – Consolidation of Proceedings in Different Courts
76
76
77
77
78
78
78
78
78
79
79
79
79
80
80
80
80
80
80
81
81
81
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Greg Koenderman – JICP – Winter 2011
DISCLOSURE AND DISCOVERY
81
WHAT IS THE DISCOVERY PROCESS (DOCTORAL STUDENT)?
DISCOVERY VS. DISCLOSURE
DISCOVERY
ALI/Unidroit Principle 16; Disclosure
DISCLOSURE
CPP See generally art. 331.1 + Notice of Disclosure
Rule 53.03 Ontario RCP - Expert’s Reports
CCP 396.1 – 398 – Examination on Discovery
Rules 30 and 31 Ontario RCP – Discovery of Documents and Examination for Discovery
G.C. Hazard, “Discovery and the Role of the Judge in Civil Law Jurisdictions”, p. 102 – US v EU conparison of
discovery
CVL - Lac d’Amiante du Québec v. 2858-0702 Québec [2001] SCC; 104; Pre-Trial information is subject to
confidentiality
CML - Juman v. Doucette [2008] p. 114; SCC; information disclosed in discovery remains confidential.
CMN/ – Ontario Report on the Task Force on Discovery Process, Executive SUmmary (2003) p. 129 –
Identification of problems and recommendations for improving the Discovery process.
81
82
82
85
85
85
85
85
85
END OF PROCEEDINGS & COSTS
87
86
86
87
87
ALI/Unidroit Principle 15 – Dismissal and Default Judgement
89
COURT-ORDERED COSTS
89
CML - Walker v. Ritchie (2006) SCC 45 P. 141 – Defendents cannot pay premium depending on Plaintiff’s fee
structure, Cost award as a stick for rejecting settlement
91
CMN – Beardy v Canada, 2003, ON Sup Crt, p. 152– Costs awarded against lawyer personally
92
CMN – McKinnon v Polisuk, 2009, QC SC, p. 165– Quebec refuses to adopt cost for solicitor-client from foreign
jurisdiction. (Shocking case that is not necessarily the law).
92
CVL – Commission des Droits de la Personne v Laval, 2009, QC SC, p. 161– Tariffs s. 15, awarded in “important”
cases
92
COSTS AS A POLICY TOOL
92
ALI/Unidroit Principle 25 - Costs
92
CVL - P. 172 – Y.Boisvert, “Parlant d’accès à la justice…” Costs for lawyers fees only awarded in QC for abuse of
system
93
CVL - Royal Lepage Commercial Inc. v. 109650 Canada Ltd. [2007] QC CoA, p.173 – Extra-judicial costs rejected;
no abuse of civil justice system, allowed tariffs applied.
94
SLAPPS
95
CVL – The Gazette, Court Victory for Citizen Participation, (2010) p. 197 – Anti-SLAPP Legislation
96
CVL - Construction Infrabec v Drapeau, 2010, p. 180– CCP art. 54.1 interpreted – Power to Impose sanctions for
improper use of procedure.
96
CVL – Industries Lassonde v Oasis d’Olivia inc, 2010, p. 185– CCP Art 54.1 used to award extra-judicial fees
97
INTERIM COSTS (OR ADVANCE COSTS)
97
CML - British Columbia (Min. Forests) v. Okanagan Indian Band, SCC, 2003, p. 198; Test to grant interim costs 98
Little Sisters Book and Art Emporium v. Canada, p. 208, 2007, SCC; Interim Costs; Okanagan test narrowed
99
R v Caron, SCC, 2011, WebCT; Interim Costs awarded by Superior court for provincial court trial.
100
CVL - Hétu c. Notre Dame de Lourdes (2005) QC CoA 2005, p. 234 – Interim award of extra-judicial fees.
101
CLASS ACTIONS
102
CCP 999-1051 - Class Action
108
Ont. Rules of Civil Procedure 12 – Class Proceeding
108
CML - Hollick v. Toronto (2001) SCC, p. 249; Requirements for ON Class Action, Rejected
108
CVL - Malhab v. MetroMedia (2003) QC CoA, p. 256 – QC Class Action criteria – Group definition
109
CVL - Lallier v. Volkswagen Canada Inc (2007) QC CoA, p. 263; QC Class Action – Overbroad Class and Conclusion
Sought (Rejected)
110
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Greg Koenderman – JICP – Winter 2011
CVL - Landry v. Syndicat du transport de Montreal (2006) QCSupC, p. 269 ; Class Action lawyers fees can be
altered by the Court
111
CML – (A)Kerr v. (R)Danier Leather (2007) SCC, p. 274, Class Action – costs awarded to Corporate defender ;
Class Rep held liable for costs
111
CVL – Marcotte v Longueuil, 2009, SCC p. 294 – QC Class Action requirements; Proportionality required;
annulity of law not Class Action.
111
CVL/CML - William McNamara, “Multi-Jurisdictional Class Action in Canada” p. 317 – Order and Fairness are the
rerequisites to enforce foreign judgements
112
CIVIL JUSTICE AND ITS ALTERNATIVES
112
CCQ 2631, 2633, 2638-2643 – Arbitration Agreegments
114
CCP 151.14 - 151.23, 508.1, 940, 940.1, 941-951.2 - Settlement conference, Judge presiding
114
Rules of Civil Procedure Ontario 24.1, 77
114
ALI/Unidroit: Principle 24 - Settlement
114
CML - Cable & Wireless plc v. IBM UK, [2002] UK, p. 322, Court repects K’ual agreement to pursue ADR prior to
trial.
114
CMN/CVL – Ouimet & Cote, Enforcement of Arbitral Awards in Canada. (2008) p. 328 – ADR is parallel to courts,
but may require courts help to enforce
115
CVL – STCA v Microsoft, p. 333; Mediation, can fashion creative solutions beyond the power of a court.
115
CMN/CVL – Otis & Reiter, Mediation by Judges (2006) p. 335 – Summary of changes brought by Judicial
Mediation
115
PULLING IT ALL TOGETHER
115
Q&A
116
2. OVERVIEW OF PURPOSES AND REFORM OF CIVIL PROCEDURE

What is this course about?
o Institutions of civil justice provided by the state
o Rules of civil procedure and not criminal procedure
o It is not about the criminal justice system/Procedure
o It is not about ADR not provided by the state (we will however talk about JDR)
o JI – Macro level
o CP – Micro level – the nitty gritty rules and all the pre-trial details, deals w everything leading up to trial.

Why is this topic particularly interesting and important at this juncture in time?
o
o
o
o
o
Exponential rise in self-represented litigants (cost of litigation, approx. $60 000)

Judges are not sure what to do as we have an adversarial judicial system (used to silently receive
information from party who are “masters of their case”).

Self-rep causes problems Judges are afraid to be seen as biased towards self-represented litigants.

What is the correct balance?
Explosion of the class action

Goal is to give people greater access to justice, and at same time, change widespread societal behaviour

Funded by conditional fee arrangements
Increase in ADR and especially JDR

Opting out of justice system provided by state to save time/costs, etc.

JDR – sitting judges getting into business of mediation – settlement conferencing  totally new role.

Ethical issues are enormous. Changes the way courts function.
Rise in the use of technology in the courts

Ex: Anton Piller Order – Plaintiff can go before judge and ex-parte order to issue motion and prevent
defendant to delete files

Internet – can Google judges!
Widespread reforms in civil procedure

Woolf report resulted in England’s 1999 reform

Basis for reform has caught on and has influenced Quebec and Canada
6
Greg Koenderman – JICP – Winter 2011






Lawyers dubbed him the “big bad wolf”, as they are adverse to changes in civil procedure. All reforms are
aimed at mitigating the adversarial quality of the system, thus moving power away from parties towards
judges. Lawyers like to control the litigation process and don’t want to give up power to judges.
Is it enough to put in art. 4.1, 4.2, and 4.3? Who is responsible for carrying out these effects?
Lawyers like the current system that let them throw procedural hurdles at the other side. However, legislature
does not want this anymore.
Judges also aren’t doing great job of adhering to the reforms – notion that you don’t want to lose a case on
procedural issue.
It is lawyers interests to start cases and let them linger. This is not in the interest of civil justice.
Woolf proposed that cases must be complete within 6 months.
Jolowicz, “On the Nature and Purpose of Civil Procedural Law” P. 26 – substantive v. procedural law, purpose of
procedural law

“What is procedural for one purpose may not be so for another”

Some consider procedure to be “supreme” because it provides the means whereby decisions on the substantive law are
obtained
o





Sir Jack Jacob: relation between substantive and procedural should be redefined in terms of primacy of
substantive law and supremacy of procedure  supremacy of procedure is practical way of securing rule of
law [26]
Procedural law governs the proceedings, but also “procedural rights” (like the right of appeal)
Must distinguish between right to invoke jurisdiction and the right to a decision in your favour
o Taking the first step doesn’t mean you have an action, but it does mean the court is seized of something (i.e.,
seeing if you have an action)
o CML application (can’t proceed until court says yes) for leave is analogous to CVL fin de non-recevoir (can
proceed until court says no), but with a reversed burden of proof
o Right to invoke jurisdiction of the court leads to three possibilities after plaintiff takes first step: pleading struck
out; judgment for him; judgment against him (in English, “no cause of action” – but this is different from saying
that he had no action to begin with)
Substantive vs. procedural law
o Procedural law affects only those who litigate
o Subjection to procedural law is voluntary (only when parties decide to take part in civil litigation); subjection to
substantive law is not (derives from fact of being born in society)
o Procedural law is not self-executing; substantive law is (i.e., we assume that the legal consequences of our
actions are determined by law, not decisions, despite that we also believe that judges make law)
o Judges do have discretion in procedural law, so the declaratory theory isn’t absolute here
o Rules of procedure may permit or require actions by parties or the court
o Procedural law creates choices (rarely dictates what the court’s order must be (cf. substantive law) – but this
doesn’t mean it’s self-executing (court must still make the order, even if we think they have to)
o Breach of procedural law usually leads to defence being struck out; breach of substantive law usually brings
proceedings to an end
Purposes
o Procedural law provides for resolution of disputes – but is much more than this:

Resolution of disputes

Importance of achieving justice between individual litigants is paramount

Serves effectiveness of the law

Civil action is the civilization’s substitute for vengeance (keeping people from taking
justice into their own hands) and for injustice.

The effectiveness of law depends on the society’s understanding on what the courts do
and that understanding depends on the messages that come from the courts.

If litigation too costly/hard, then no access to justice; if too cheap/easy, then too many will
litigate and costs will rise

Courts must balance incentives and disincentives to litigation

Provides opportunities for judicial intervention and creativity

Counsel and judges all need time to present good reasons and think them over, and courts
must be able to pronounce on issues of general importance

Appeals court exercise two roles (deciding particular cases and improving the law)  tension;
counsel cannot draw out the trial to serve the law; courts cannot hear appeals unless they
serve general questions, but this jeopardizes individuals’ rights to appeals

Presentation of cases before courts depends on litigants’ resources and willingness 
accidental which ones appear before the courts

British law is too hostile to public interest litigation, and has no reference procedure  must not
only speed the disposal of groundless cases but provide more avenues to hear cases of public
interest

Should not only focus on how to exclude worthless cases but also to encourage ones of
public benefit
No logical necessity that procedural rules operate mainly by choice of parties; allocation of power between them and the court
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Greg Koenderman – JICP – Winter 2011

is tradition, not necessity
o France: judge cannot apply a law unless the parties have had time to argue about it
o UK: commitment to adversarial principle means that people don’t question it
o Need some ability for courts to act on own motion  should question balance of power between courts and
parties
The process of civil litigation serves purposes broader than just deciding the case before the court, so those who
make the law need to keep this in mind
Principles ALI/UNIDROIT: Introduction P. 1 –
Scope and Implementation
These Principles are standards for adjudication of transnational commercial disputes. These Principles may be equally appropriate
for the resolution of most other kinds of civil disputes and may be the basis for future initiatives in reforming civil procedure.
Principles ALI/UNIDROIT: Principles of transnational procedure (38) –












Humans are living in closer quarters than ever before in history
This has positive and negative results including increased social friction, legal controversy and litigation
The stress of dealing w this conflict can be mitigated by reducing differences in legal system, so that same/similar rules apply.
Most attempts at harmonization have addressed substantive law, but much work needs to be done on harmonization of
procedural law.
Prof. Storme has demonstrated that harmonization is possible. His project attempts to draft procedural principles and rules that
a country or jurisdiction could adopt for adjudication of disputes arising from international commercial transaction [39].
His rules and procedures attempts to combine the best elements of adversarial procedure in CML with the best elements of
judge-centered procedure in the civil law tradition.
Around the world there are fundamental similarities[40] and differences among procedural systems[40].
Significant differences b/w CML and CVL jurisdictions:
o Judge in CVL rather than lawyer in CML has the primary responsibility to develop the evidence and articulate legal
concepts
o CVL litigation proceeds in short hearing session; CML has pre-trial and trial where all evidence is heard.
o CVL decisions are subject to more re-examination, including based on facts.
o CVL judges are professionals who serve their whole career; CML they are appointed from among lawyers.
System in USA is also unique to CML [40]: each party pays own lawyer and no order for costs; judges elected in some cases.
The rules governing formulation of claims are substantially similar in most legal systems
Exchange of evidence rules vary substantially: although there is a growing practical necessity to permit document discovery.
[41-42]
The implementation of Prof Storm’s rules and procedures is a matter of domestic and international law of nation states. The
reduction of different legal systems leads to the “harmonization” of law.
CCP art. 2
2
The rules of procedure in this Code are intended to render effective the substantive law and to ensure that it is carried out; and
failing a provision to the contrary, failure to observe the rules which are not of public order can only affect a proceeding if the defect
has not been remedied when it was possible to do so. The provisions of this Code must be interpreted the one by the other, and,
so far as possible, in such a way as to facilitate rather than to delay or to end prematurely the normal advancement of cases.
INSTITUTIONS OF CIVIL JUSTICE AND THE STRATEGIES OF LITIGANTS
Purposes and Reform of Civil Procedure
Today, many jurisdictions are questioning their civil justice system. Many reports have been mandated. In reforming the system, we
must start at the values/goals – what do we want this system to do? We must also ask what are the current problems our civil
justice system is facing – there are many!
What is procedural law?




“Litigation is an evil, but whose ultimate objective is justice”
Judicial institutions are the procedural hardware, and the procedural law as the procedural software.
Procedural law is the handmaid (humble servant of substantive law), rather than the mistress of substantive law.
o Procedural law is merely the enabler of good substantive law decision – provides means where by decisions on
substantive law are made
Procedural law is comprised of 2 components
o Nit-picky rules (plumbing)

How proceedings are conducted throughout the justice system, how substantive legal rights are enforced

The plumbing through which cases pass
o Procedural rights

These are very important!
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Greg Koenderman – JICP – Winter 2011



Ex: right to be heard, notice and service provisions, art. 5, etc.
Procedural law can also be used as a policy mechanism by the courts to regulate litigious behaviour.
What are the repercussions of procedural rules being the humble servant?
o There is a prevalent position that you cannot lose your case b/c of procedural rules.

Art. 2 CCP failing to observe a procedural rule is not going to be fatal to the case; it can always be remedied
o So basically, don’t worry if you do not adhere to these rules! These rules are only there to make sure substantive laws
are carried out.
o Ontario Rules, section 2  failure is an irregularity, but does not lead to nullity
o Theory  Parties should not lose on procedural technicality, but rather based on substantive law.
o Prof. Zuckerman  thinks this is terrible - procedural law is enabling judges to mismanage the court system. If rules
are being changed but judges are not being re-educated, we are not fixing the broken court system. “We’ll have a
beautiful infrastructure, but little improvement”. If we keep giving parties second chances, we are not improving the
system. The reason things have not changed is b/c judges cannot bear to allow someone lose their case b/c of a
procedural irregularity.
o Best Buys – BB sued and Pl followed textbook on how to sue a Corporation. Trial Court enters default judgement
against BB and refuses to re-open the case. CoA overturns and re-opens the case and undoes the default judgement
and allows BB to mount a defence. Zuckerman would be enraged and calls this mismanagement of the public
service. The Judiciary is a public service, and is completely paid for by the state. Zuckerman blames the judiciary for
this mismanagement, most others blame lawyers.

Where do we find procedural law?
o Code of civil procedure, Rules of civil procedure
o ALI/UNIDROIT  have joined together to put together rules of transnational civil procedure.

At most, Unidroit procedures are soft law. We cannot force a jurisdiction to adhere to anything other than
there own law, as procedural law is the law of the forum that hears the case.

However, if the contract provides for arbitration, the parties may agree on these principles.

Limited practical value, these principles are seen as a great potential model for reform of civil procedural

In K you can have a “choice of law clause” and tell the court what law is to apply. But as a general
rule cannot tell a court what procedural law applies. The court will apply its own procedural rules.

In international arbitration cases is mostly where you will see the choice of laws.

“Choice of Forum” clauses is more relevant to this class.

Glenn: “first major attempt to effect a synthesis of western rules of procedure globally”.

Dealing with different legal traditions
o Adversarial / Inquisitorial

Adversarial system

Seen as being at the root of a lot of problems.

Puts the control in the hands of the parties, while the judge is a neutral arbitrator or “silent umpire”.

Parties develop arguments, raise objects, and create evidence – “masters of their case”.

Judges are appointed among members of the bar.

Inquisitorial system

Parties are not as important as the judge. Judge takes control of the case.

The judge is given power to collect evidence, to ensure the proper dénouement, etc.

Role of the judge and his training is very different. Judges are educated to fill this role.
o This leads to many differences across legal traditions  ex: discovery, class actions, conditional fee arrangements
are not found in France (abhorrence!)
o Quebec belongs to civil law tradition, but in procedural law, adheres to CML adversarial tradition & CML
procedural system (entire judicial court structure is very much the same as in a common law adversarial system).
o Although Canada and the US both follow the adversarial system, there remain big differences between both, at the
level of civil procedure (ex: preponderance of jury trials in the US, while they are extremely rare in Canada and have
even been abolished in QC since the 60s).

Connection b/w SA Constitutional Court Video and JICP
o Transparency, equality b/w judges and litigants, art and the law, recognition of the past difficulties.
What are, or ought to be procedural law goals or underlying values?

Just/fair/Equal
o Consistency – treating like cases alike
o We do not want the civil justice system to become two-tiered (to an extent we are getting this, as people who want
quicker dispute resolution pay for mediation and arbitration, or a better lawyer). This applies only to the civil justice
system. You can also choose to go to arbitration, but it is expensive…like two-tiered justice.

Impartial, accountable, open, transparent = trustworthy
o You want to be sure the lawyers and judges are on the level and you can hold them accountable.
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Greg Koenderman – JICP – Winter 2011
o
o
o
Impartiality and independence of those who dispense justice.
Open-court process – “justice is cloistered” (alby sacks, Bentham, Fish). Exceptions involving children, family matters.
Media has assumed the role of watching the watchman…media supervises the judges.

Efficient
o A good decision is often a quick decision.
o Judges now given the power to conduct judicial mediation/conciliation/settlement conferencing  parties who are on
the rolls for their case to be heard can opt out in favour of this.
o Ex: 77% settled within a day – yet is now victim of its own success (longer delays!)
o Efficiency relates not only to times, but also to cost  a lot of thought is being put into “proportionality” – making
judicial system more cost appropriate.

Accessible (normally considered the cost of justice)
o Average cost is 60 000$ …about 40% of people before the courts are self-represented
o Ontario solution – 3 different tracks (simplified track based on amount in dispute) (Small claims in Ontario now $ 25
000 or less because of accessibility)
o Shorter, cheaper mechanisms of justice for lesser amounts.
o Accessibility does not just relate to costs, but also complexity  most people have no idea how to get a case to court.
What are the problems of the civil justice system? (Woolf identifies the following:)

Cost
o
o
o
There are 2 main components

Extra-judicial costs (real impediment to access to justice) – costs incurred other than by judicial decision
costs (ex: lawyers fees, disbursements)

Time…is money costs. Lost time at work, or sitting around waiting.

Uncertainty of knowing how court will decide. Which is why so many people settle before court.

Judicial costs – are incurred every time a proceeding is brought. Court Costs

Born by parties, payment for submitting any proceeding to court. Bailiff serve notice that someone is
being sued, stenographers costs are part of the court costs. Many costs not paid for by the state,
and not encompassed in ‘lawyers costs’.
A lot of reforms are aimed at forcing parties to get a joint expert.
Financial costs / lost opportunity costs / anxiety costs.
The Cost of Litigation and Abuses of the Civil Justice Process


Delay
o
o
Parties currently wait about 18 months from the time they first bring the claims for it to be actually heard.
Ontario has “shorter track” system, but generally, parties must still wait about 2 years
Complexity
o Concerns substantive and procedural law
o Problem for self-represented litigants
o Move towards using less complex language
Lawyer’s fees

Traditionally  hourly rate (billable hours)
o Adjustments seen today include:

Caps on hourly rates

Reduction in hourly rates if the case is lost

Bonus on top of hourly rates if case is going well

Conditional Fee Arrangements (CFA)
o Lawyer says to the client: “I will take the case – if I win, I take a percentage, if I don’t win, I get nothing”
o Risk is transferred to the lawyer, who then carries all the costs.
o Usually ranges from 15%-30%
o Works differently in England

Lawyer will still get nothing if the case is lost, but if he wins, he gets the amount he would have been able to
charge under his hourly rate

More of a link between work done and result achieve, as opposed to potential windfall.
o Where do we find CFAs?

Class action

Medical malpractice/personal injury
o Restrictions in Ontario
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Greg Koenderman – JICP – Winter 2011


Must be in writing

Cannot be in criminal, quasi-criminal, or family matters

Court has power to review the CFA
o Benefits

Are said to improve access to justice

Are said to improve efficiently (no incentive for lawyer to string the case along).
Are said to discourage frivolous or unmeritorious claims.
o If they are so great, why were they prohibited in Ontario until 2002? And in England until the reform in 1999
(Woolf)?

Biggest problem: Conflict of interest  lawyer is not supposed to have a professional ethical dilemma
(should not have a financial interest in the case). Rather than representing the interests of the client, there is
a risk that the lawyers will represent his own interests

Cherry picking phenomenon  lawyers take cases that they know that they can win or settle. This will leave
out not only unmeritorious cases, but also risky or contentious cases that may move the law along and be
great for society.

Only taken by lawyers where there is a lot of money at stake  people who often need it the most (who have
little at stake in the eye of the lawyer, but not in their eyes), are left out.
Problems with CFA:
o Only works for Plaintiff, never defendants, unless cross claiming. Doesn’t open access to justice for defendants.
o Doesn’t work for cases where money is not involved…like custody.
o Only work for Plaintiffs in personal injury cases and class action.

Pro bono (For the public good)
o Free legal services
o New system in QC (Pro Bono Quebec) – all lawyers and law firms put into a centralized bank X number of pro bono
hours. Clients can then apply to receive hours from this bank.
o However, cases taken are those that are either going to set a new legal principle, or help a lot of people.
o Problem is that it is done ad hoc

Legal Aid
o McMurtry article: « …a just society is one that enables each of its members to have access to the kind of legal system
that is essential for the understanding and assertion of individual right, obligations and freedoms under the law.» (297)
o McMurtry believes that legal aid is a “bastion of a democratic society”
o However, is it perfect?

Income required to qualify is extremely low  you basically have to live in box. Not even close to minimum
wage!

However even if we increase legal aid budgets, it will never be the silver bullet (only a little silver bullet for a
small minority of people).
Other types of solutions
o Insurance

Some home insurance policies include this (ex: legal fees, if something happens to the house).
o Government

Macro component

Some argue that under s.7 of the Charter, the right to legal representation ought to be a
constitutional right provided for by the government.

However: B.C. v. Christie  There is no broad general legal or constitutional right to legal council.

Micro component

Federal Court Challenge Program (no longer exists) allowed parties to apply and receive money
from a federal fund. Many Charter cases that have gone to the SCC had received funding from this
program.

Public funding for class actions

QC Fond d’aide pour recours collectifs  client applies to fund. Decision not to grant funding can
be appealed to the TAC. However, money from fund imposes restrictions on litigation (many
requirements)
o Non-profit groups (interest groups)/ NGOs

Groups get intervener status

“Friends of the court”
o Class Action

Cost component for losing parties, but does open up access to justice.
o Public Finance of Law Firms and Cases

Firms cannot incorporate and raise capital through markets.

Ethical dilemma is do the lawyers owe a duty to clients or shareholders?
o Deregulation of Lawyers

Lawyers are a monopoly and can therefore charge monopoly level fees.
o Desperate Measures

Quebec Man wants to sell his kidney to fund his legal bills.

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Greg Koenderman – JICP – Winter 2011
o

Self-representation

Some get a bit of pro bono help (lawyer used just on consultative basis as a way to limit costs).

Self-help centres for parties that have no idea what they are doing (ex: help to institute action, to fill out
forms)

BC example – located across the street from the courthouse, centre is for non-represented client to
get legal information, to locate and fill out forms, to find out about free legal advice and alternatives
to the civil justice system, etc.

Like the MLIC, there is an important limitation  no advice!
Side note: Why are law firms organized typically as sole proprietorship or partnership (not corporation listed in stock
exchange)? Why not have public invest in them?
o In Australia, firm went public and is doing well.
o Will be possible in England by 2011
o Problem – conflict of interest as firm must look out for interest to shareholders and share value.
o Why not have individual cases funded then?
o Hobsbawn v. Atco (Alberta)  first time court approves 3rd party funding (private investment firm) for class
action.
o Strengths of CFA: increases access to justice, encourages efficiency by getting lawyers to resolve cases quickly.
Lawyers won’t take frivolous cases and will take meritorious cases.
Woolf Report

Reforms generally
o Today, different jurisdictions have attempted to reform the system in different ways.
o We must trying to change the mentality  Nouvelle culture judiciaire
o A lot of reforms are aimed at changing the adversarial system and putting more control into the judge’s hands.

Woolf’s report aimed at…
o Speeding up civil justice
o Rendering it more accessible to ordinary people
o Simplifying the language of civil procedure
o Promoting swift settlement
o Making litigation more efficient + less costly + avoid excessive and disproportionate resort to procedural devices.

Implementation solutions (Woolf)
o Judges as case managers (as opposed to lawyers)

Changing notion from judge as silent umpire, to a much more active participant in civil justice system.

After parties have instituted proceedings, they must get together and create timetables. Within 30 days, they
present it to the court. The judge has power to amend during this presentation.

Judges should no longer just be compliant with what parties want to do.

See. QC CCP 4.1 – Parties control their case, but 4.2 says Judges can intervene to speed things up.
o
Encouraging settlements

49.10 of Ontario Rules  if party 1 offered to settled and party 2 did not accept, yet judgement turns out to
be the same or less advantageous to party 2 as the settlement offered, there will be a financial consequence
(not just a carrot, but a sword to settle!) (Walker v Ritchie)

QC CCP 4.3 Encourages/mandates the parties to settle.
o
Proportionality

CCP art. 4.2  the Code now tells the parties that the proceedings must have a direct proportionality to the
nature, purpose and complexity of the dispute.

Ex: Discovery prohibited in Québec for cases under $25 000. In Ontario, the simplified track (for cases up to
$100 000) does not allow for discovery. These are examples of the legislature intervening.
Report of the Civil Procedure Revire Committee: A new Judicial Culture (2001) P. 44 –
Findings

Decrease in the number of proceedings brought before the courts
o Habitudes/Attitudes changeantes
o Entreprises ont leurs propre bureaux de plaintes
o Médias comme voie alternative
o Régimes publics d’indemnisations

Cost of Justice, Complexity of Proceedings; creates images of complex and inpenetrable justice system.

Self-Represented Litigants
o Threatens judges impartiality as she assists the self-rep.
o Additional burden on other lawyer and costs on other litigant.

Slowness of Justice
o Acts as a brake towards access to justice.
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Greg Koenderman – JICP – Winter 2011

Administration of Justice
o Every person in court plays an important rôle in the administration of justice
o Increase use in information technologies cannot be avoided.
New vision of Procedure

Contemporary tendencies
o UK (Woolf Report) – unification, modernisation et simplification des règles
o Canada – recommandations inspired by Woolf
o Technologies de l’information

Committee’s Vision
o In order to ensure a quality public service promoting accessibility to civil justice, promptness of the procès,
balance between right and obligations of all participants and respect of public order and social harmony, the
committee identified the following éléments to define its vision of civil procédure :

Respect of Persons

Accountability of Parties

Increased intervention of the judge

Proportionality of the Procedure

Information Technology

Objectives of the Committee: humanise justice and ensuring Speedy Service and Equitable Costs.
Recommandations (exemples)
From this vision:

Responsabilise parties- choice of venue

Increasing intervention of judges- should decrease delays, better management of case and time

Proportionality of procedure- between nature of claim, finality and means

Opening to information technology capabilities
Priority directions/values specific to civil procedure:

Should be outlined at beginning of CCP

Admin of justice- shared social responsibility- between state (creates leg/laws), courts (to apply law) and citizens (to act in good
faith in proceedings)

Free choice of mode of litigation resolution- court, arbitration, mediation, etc.

Respect fundamental rights of parties and witnesses

Priority of substantial law over procedural- unless question of public order, if cp violated, won’t affect claim unless not rectified
when opportunity arises

Control of claim and file- parties remain masters but judge has more active role

Purpose of judiciary- can’t speak on something not asked to except in family matters, can’t refuse to judge based on legislative
silence, can reconcile parties

Publicity- ensures transparency, public confidence in legal system but is not absolute should have public consultation on
restrictions of recording in court and broadcasting
Access to Justice – Interim report to the Lord Chancellor… (Lord Woolf’s Report) p. 54.
Principles

System of civil justice essential to civilized society  provides structure within which commerce and industry can operate,
protects rights, etc. The administration of civil justice crucial in maintaining the structure.

Basic principles to be met by civil justice system to ensure access to justice: just results, fair and seen to be so, procedure/cost
proportionate to issues, reasonable speed, understandable, responsive, provide as much certainty as possible, effective
Problems

Process too expensive, slow, complex  stems from uncontrolled nature of litigation process, creates disadv. for many litigants

Adversarial  without effective judicial control, this encourages litigation as battlefield with no rules or rules/procedures
manipulated (complexity of system facilitates this)

Expense  in money, time, energy; to advantage of deep pocket litigants; also costs to society as shareholders who lose $ on
co. value through litigation costs, in costs of legal aid system

Disproportionate costs  especially in smaller cases, makes people not bother

Uncertainty of costs  costs follow event, uncertainty of outcome of litigation, either side can influence costs of other,
requirement for every aspect to be litigated even if peripheral (fear of negligence charges), charging system where you get paid
more for more work, discontinuity of cases requiring to refresh memory no effective control of work so no way to control cost

Delay  can exacerbate injury, can make businesses/relationships collapse, may lead some to settle for inadequate
compensation, increases costs, benefits lawyers more than parties

At a number of levels: reaching settlement late in process, in obtaining hearing date and time taken for hearing (since hard to
estimate length adjournment common, high demand)

Complexity  rules of court are themselves complex and multiplicity of different rules in different courts, variety of ways to
initiate proceedings, substantive law often obscure/uncertain

Unavailability of legal advice  due to cost

Low priority of civil justice  priority to criminal and family cases
Recommendations

Current system not confirm with or supporting principles above  unrestrained adversarial culture of present system to large
13
Greg Koenderman – JICP – Winter 2011













extent responsible
Themes: philosophy of litigation should be to encourage early settlement; litigants and lawyers should have legally
imposed duty to proceed with efficiency; procedures should be simple and comprehensible
Shift responsibility from management by parties/advisers to court  requires change of culture
Fallacy that where justice concerned, time and money not a factor  results in justice for a few so better to have a bit more
error but more access, balance results with time/money expended
Encourage settlement out of court (ADR), as early as possible
Keep parties informed of costs and alternative solutions to courts
Facts/issues agreed upon by parties pre-hearing
Pre-determined timetables with change of date or length of trial only for good reasons (and considering impact on other trials,
not just that one)
Discovery and evidence  only what’s necessary
Rules of procedure should realize objectives above through simple, clear, non-technical manner and be same for all courts
Provide resources to courts to fulfil these aims; programme of reform designed as whole
Case management by judges  will require new ethos, responsibilities and skills (and training)
Head of Civil Justice  responsible civil justice and will raise its status, ensure effective use of resources
Courts/judges to be more responsive to parties representing themselves, more interventionist approach
Lachapelle et al., « Le monde judiciaire malade de sa justice » et « Des solutions pou la justice civile » P. 63 – the
judicial world is sick and solutions to fix it.








Désaffection des tribunaux civils, explosion des longs litiges, moins de confiance publique dans le système
Honoraires professionnels : « facturer des heures » devient une fin en soi; les coûts judicaires deviennent disproportionnés
Aucun programme public d’éducation juridique
Absence du juge au cours de la préparation de l’instance et sa réticence à intervenir dans l’administration de la cause s’oppose
à l’intérêt du justiciable et l’administration de la justice
Absence quasi-totale des donnés précises sur le fonctionnement de l’institution judiciaire
Toutes les reformes dépendent de la volonté publique
Il faut prévoir qu’un juge intervienne dès l’ouverture du dossier, qu’il reste avec la même cause, et qu’il envisage la conciliation
Il faut unifier les cours de première instance, éduquer les citoyens quant à la justice, fixer les tarifs des avocats, envisager des
nouveaux critères pour le recouvrement des couts, rehausser le seuil d’accès la l’aide juridique, diviser le Barreau (protection
du public / promotion de la profession juridique), mesurer l’activité judiciaire
McMurtry, “We are not all equal before the law” P. 65 – High cost of litigation is deny justice
High cost of litigation is denying justice to many  not all equal before the law!

Challenge of assuring legal representation and access to our courts for the less affluent, the poor and disadvantaged

Current high cost is preventing almost everyone but the affluent from pursuing civil litigation

Result: “disappearing civil trial”
Criminal system has legal aid plans  not sufficient to provide the same assistance in civil law cases except in certain family law
cases
« …a just society is one that enables each of its members to have access to the kind of legal system that is essential for the
understanding and assertion of individual right, obligations and freedoms under the law.» (66)

Not truly free until able to assert legal rights and remedies available to them (fragile freedoms)

« … our laws and freedoms will only be as strong as the protection they afford to the most vulnerable members of our
community. »

Legal aid becomes an important contribution to society
Legal aid and pro bono must expand in the US  the claim that lawyers owe something back to the system (must remain a
« helping » profession).
Landry, “Pilot project to speed up Justice: Positive Results” P. 68 –
Longueuil experimented with a pilot project to speed up justice
Case is immediately assigned a judge who is responsible for shepherding it along. Deals with issues over the phone, and quickly.
Very positive results.
JUDICIAL INSTITUTIONS – ORGANIZATION
The court system and subject-matter jurisdiction
14
Greg Koenderman – JICP – Winter 2011
Recent Innovation in Canada’s Court System



Growth of tribunals has taken specific cases out of the court system
Move cases into Small Claims division
o QC - $7,000
o ON - $25,000
Difficult to change the Court structure, b/c most is based on the Constitution
2 types of jurisdiction
1) Geographic
o Not public order (ex choice of forum clauses)
o Where should action be brought in Canada or in the world
2) Subject-matter jurisdiction (Topic)
o Public order – Judges and parties must obey the statutory jurisdiction of the court. Cannot be altered.
o What level of court has jurisdiction over the issue?
o To understand subject matter jurisdiction in Canada, we must understand the Canadian constitution – it is
constitutionally divided
o Makes least sense in Family matters.
Canadian constitution
Each province has 2 first-instance courts.

Provincial courts:
o S. 92(14) – “The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization
of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those
Courts.”

Means that jurisdiction of court does not equal subject matters in terms of ss. 91-92.

Provincial courts have jurisdiction over criminal matters (a federal power)

Cour du Québec has division between civil and criminal matters

Criminal procedure is always federal

Although most have a civil jurisdiction, some do not.

Judges are appointed and paid by the provincial government
o
Provincial courts are courts of statutory jurisdiction – they can only do what the statute allows them to do (as
opposed to inherent, residual or general jurisdiction). However, they perform the vast day-to-day work of criminal law
offences (other than big cases that require jury trials).
o
Lack of uniformity
15
Greg Koenderman – JICP – Winter 2011



No uniformity in name (Ontario Court of Justice, Cour du Québec)
No uniformity in jurisdiction (varies from province)

Cour du Québec  34 CCP & subsequent – jurisdiction in all civil matters under $70 000. Two
divisions – Criminal & Civil. Criminal does all Criminal cases except those going to jury trial.

Quebec has one of the largest civil jurisdictions in the country.

Ontario Court of Justice  Has no civil jurisdiction - s. 38 CJA – Jurisdiction
Provincial & Territorial - Superior Courts s. 96 Courts
o Inaccurate to demonstrate this court as superior to Provincial Courts. They are both courts of first instance, and
appeals from Provincial Courts go directly to Court of Appeal.
o s. 129 CA 1867: “Except as otherwise provided by this Act, all Laws in force in Canada, Nova Scotia, or New
Brunswick at the Union, and all Courts of Civil and Criminal Jurisdiction, and all legal Commissions, Powers, and
Authorities, and all Officers, Judicial, Administrative, and Ministerial, existing therein at the Union, shall continue in
Ontario, Quebec, Nova Scotia, and New Brunswick respectively, as if the Union had not been made; subject
nevertheless (except with respect to such as are enacted by or exist under Acts of the Parliament of Great Britain or of
the Parliament of the United Kingdom of Great Britain and Ireland), to be repealed, abolished, or altered by the
Parliament of Canada, or by the Legislature of the respective Provinces, according to the Authority of the Parliament
or of that Legislature under this Act.”

In other words, the courts that existed at the time of confederation will continue.

English court system used as a model
o Provincial Superior Courts are courts of inherent jurisdiction; they hear cases that are not statutorily given to
other courts. They have all the powers necessary to administer justice.
o Judges are appointed Federally, by GG (s. 96), salary set by the federal government (s. 100).
o S. 99 – Judges can only sit until age 75.
o Still no uniformity in name (Superior Court of Quebec, Court of Queen’s Bench (AB, SK, MB, NB), Superior Court of
Justice (ON), Supreme Court (BC, NS, PEI, NL)
o CCP art. 33 – if you have taken your case to any inferior court or tribunal and you are unhappy with the decision, you
can take judicial review of that administrative decision to the superior court (not an appeal)

Not a review on the merits, but rather on natural justice, jurisdiction, abuse of process, costs, etc. (powers
that ensure the administration of justice)
How are judges appointed?

See section on Judicial Appointments

Depends on whether judge is of lower court, or of Superior Court

There are about 2000 judges in Canada. About 1000 are provincial court judges, and 1000 are Superior court judges.

S. 96: “The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except
those of the Courts of Probate in Nova Scotia and New Brunswick.”
o S. 96 courts (Superior Courts) are appointed by the federal government

S.99 (2): “A Judge of a Superior Court, whether appointed before or after the coming into force of this section, shall cease to
hold office upon attaining the age of seventy-five years, or upon the coming into force of this section if at that time he has
already attained that age.”
o Jukier: this is a typo – should be “superior” (provincial)
o Technically, s.99 does not apply to federal courts, as they are statutory courts. So can federal courts get around s.99?

S.100: “The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts (except the Courts
of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in Cases where the Judges thereof are being paid
by Salary, shall be fixed and provided by the Parliament of Canada.

Big issue in Canada: Provincial judges and federal judges are not treated alike.
o Judges are appointed, paid and overseen federally, although courts are managed provincially
o Oversight committee for federal judges to take place of these sections.

Hogg  why do we have this system?
o At first blush, the only justification for this system is that we have inherited it. Ensure independence of Judicial branch
and insulates judges from local influence.
o However, historically, provincial courts were not the courts they are today. Rather, they were a conglomeration of
inferior courts with judges who were not always legally trained or appointed from the bar
o So there is an inferiority complex among inferior court judges  difference of perception, snobbery, historical bias.
o Federally appointed judges also creates uniformity and oversight across entire provincial superior courts.
o See MacMillan Bloedel for importance of Superior Courts vs. provincial courts.
Federal Courts

2 divisions: Trial and Appeal
16
Greg Koenderman – JICP – Winter 2011

s. 101 CA 1867: “The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the
Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any
additional Courts for the better Administration of the Laws of Canada.”

SCC created pursuant to the first part of this section (general court of appeal)

1875 – Supreme Court and Federal Court created

Federal courts created pursuant to the second part of this section (1971, 1975 federal court name changed from
Exchequer Court)

Covers things that fall under s.91 (IP, Refugees, immigration, citizenship, maritime law, tax court, military court (specialized
courts part of the federal court structure))

Sometimes have to do a pith & substance analysis to determine if the claim is one that ought to go to Federal Court.

However, in Quebec North Shore Paper v. Canadian Pacific (1976) - issue was whether federal court has jurisdiction
over anything that would fall under s.91, or whether it has more limited jurisdiction over things that fall under s.91, but
that feds have actually taking jurisdiction over it (federal legislation)
o Latter approach adopted – must be enacted legislation.
o Federal court takes jurisdiction over things that fall properly under s.91, but in addition, there must also be an
actual existing applicable federal law, or it must be something over which the federal government has taken
jurisdiction over.
o SCC has also said that federal court has jurisdiction over federal common law (ex: aboriginal entitlement)
o Why do people take their cases to the federal court?

Delay/annoyance – Party didn’t declare ($900,000 in diamonds when corssing into Canada).
Complicating factors

Value in civil matters often dictates if case goes to provincial court or superior court

Ex: under 70 000 / over 70 000 in Quebec

Is it the value of the K? Is it the value of the dispute? Can you change this value of the dispute?
o If it is the value of the dispute, we are essentially giving the parties the power to change something that is
otherwise of public order.
o Answer: it is the value that you are disputing (not of the right) – even if the K is for 75 000, if I sue for 65 000,
I go to provincial court

So to some extent, you can fiddle around with value to change which court you go to.

What if there is a counter claim for 90 000? Bumps it back up to the superior court (CCP 34.1 (the “sum claimed”),
34.3, etc.). Things can happen during the course that changes the jurisdiction.

Certain subject matters, whatever their value, are given certain jurisdiction

Only superior courts hear class actions

This has been problematic in family law
o All matters of divorce, spousal support, child support, division of family assets always go to superior courts.
However, one of the big chunks of the day-to-day work of provincial courts is family welfare (youth protection,
etc.).
o Odd split – some cases would fall under both (ex: if there is alleged abuse)
o This is not good for the litigants – not a one stop shop
o Case ends up being stayed at the superior court for as long as provincial court needs to deal with the child
welfare issue.
o Ontario has created a “unified family court” – if you fall within 17 districts that offer this, the family court will
hear all family matters ranging from divorce, child protection application, adoption, custody, etc.

See Goudie problem for jurisdiction issues.

Increasing jurisdiction of the provincial court

If provincial courts are courts of statutory jurisdiction, what statute is this? The provincial government! So what stops
the province from adding powers for its courts?

We see that in MacMillan Bloedel, there is a core that cannot be taken away from superior courts

However, in Quebec…as an example Cour de Quebec jurisdiction was limited to:
o 1849: $200 limit
o 1964: went from $200 to $500 (was challenged to SCC, but passed)
o But after this, Quebec went wild!
o 2002: went from $30 000 to $70 000 (compare this to $25 000 in other jurisdictions)
o Dates of the increases correspond to political events (Meech lake, referendum)
o So why has this never been challenged again?

Federal government believes it would lose again?

Federal government trying to keep Canada together?
o Where’s the ceiling? At what point will the feds stay that this is taking away the core of superior courts
(Bloedel)?

We just do not know

Small claims jurisdictions
17
Greg Koenderman – JICP – Winter 2011

In most provinces it is carved out of the provincial Court; ON is the exception, Small claims court is carved
out of the Superior Court, b/c provincial court does not have a civil jurisdiction
Many provinces are upping the value of their small claims jurisdictions
o Quebec - $7000
o Most other provinces are $25 000 (Ontario, Alberta, NS…)
It is not worth hiring a lawyer and going to court unless the value is $ 60 000. Interesting – lawyers could just council
clients to go to small claims instead.
Policy issues
o Small claims courts form peoples’ perception of the judicial system (many people go before them, as
opposed to superior courts).
o Small claims courts are good for the system (siphon cases away), and good for the parties (less costly,
faster)
Questions
o What is the limit?

Consensus is around 25 000 Canada
o Should legal representation be allowed?

QC is adamant that no lawyers are allowed– CCP 959

Legal representation however is allowed with certain conditions in other provinces.
o Who should have access to small claims?

A corporation?

Should it be a monetary threshold, but also a threshold based on natural/legal persons?
o Should mediation be incorporated?
o Who should the judges be? Full time judges, part-time adjudicators, non-lawyers?
o What remedies should they award? Should it be limited to damages? Should they be available to give
equitable relief?
o Should they be able to appeal?

Not in Quebec!

In Ontario, only if over $500





What if you are being sued in the wrong court?

Quebec Art. 163 CCP  Either referred, or dismissed if there is no such court

Ontario 21.01 (3a)  Motion to stay (held in abeyance) (stayed so that prescription does not run) on the ground that
the court has no jurisdiction.

What Cases go Where?

Unified family Court in Ontario, so that cases are not divided b/w provincial and Superiour Court.

Unified Family Courts essentially become Federal Courts.
Department of Justice, Canada’s Court System (Mycourses)
See printout
MacMillan Bloedel v. Simpson (1995, SCC, BC), p. 69; Superior Courts inherent jurisdiction upheld; cannot be
reduced w/out constitutional amendment
Facts
Issue
Holding
Reasons

17-year-old arrested and charged with contempt of court for protesting at Clayoquot Sound and blocking road in
contravention of injunction of BC Supreme Court ordering not to obstruct MacBlo’s operations.

The Young Offenders Act gives the Youth Court of Ontario exclusive jurisdiction over contempt of court ex facie
(committed otherwise than in the face of the court) by a young person, including of the contempt of court against a
superior court. As a result, the Superior Court looses jurisdiction to punish contempt of court committed ex facie by
a young offender against it.
Is the transfer of jurisdiction constitutional? Can Parliament, pursuant to criminal power, confer upon youth courts the
exclusive power to try youths for contempt ex facie of superior courts? [NO]
Parliament can transfer the powers to youth court, but cannot be exclusive, unless initiate constitutional
amendment. Superior courts always retains the right to hold contempt hearings against a youth or to defer to
youth court.
Majority (Lamer) (5)
2-stage analysis :
Characterization (added on in Sobeys Stores v Yeomans, must be narrow): jurisdiction transferred by s. 47(2) of
Young Offenders Act should be characterized as power to punish youths for ex facie contempt of a superior court
[25]
[1] Residential Tenancies Act test to decide if grant of jurisdiction is permissible:
1) Historical inquiry - whether power/jurisdiction conforms to that exercised by superior courts at
Confederation? Yes
2) Is function judicial (ie not admin/policy)? Yes.
3) Assess tribunal’s function as a whole/institutional context, power should be ancillary – permissible if
consider institutional function of youth courts (clear, laudable policy objectives for youth courts); power to
punish youths for ex facie contempt of superior court is ancillary to primary functions
18
Greg Koenderman – JICP – Winter 2011

Conclusion: Doesn’t infringe on s. 96 [26]
[2] Decide whether superior court’s jurisdiction can be ousted (ie giving exclusive jurisdiction)- “core/ inherent
jurisdiction” of s.96 courts.

To answer, must consider in broader constitutional context, considering jurisprudence, preamble, principle of rule of
law, central place of superior courts in our system of governance

Ex facie criminal contempt like in this case has aspects of crime but also aspects of sui generis court power

Contempt of court (linked to power of court to control its own process) is part of inherent jurisdiction of s.96 court
(that which enables it to fulfill itself as court of law). Inherent jurisdiction is important to existence of superior court
and thus to division of powers, uniformity in law across provinces, principle of rule of law recognized in Preamble
of Constitution, independence of judiciary

Destroying part of core jurisdiction would be tantamount to abolishing superior courts - would need
constitutional amendment

The judge must take a narrow approach to the test in order to prevent large accretions of power that undermine the
constitutional order

Characterization for the purpose of the test should focus on the type of dispute rather than on the type of remedy
sought.

Most often preferable for Youth Court to try and punish youth for ex facie contempt of superior court but can’t oust
superior court jurisdiction- choice is up to superior court and superior court has power to ensure lower court acts
correctly too concurrent jurisdiction OK [42]
Conclusion: s.47(2) is unconstitutional to extent it confers exclusive jurisdiction to youth court - should be read
down accordingly. Concurrent jurisdiction is okay.
Dissent (4):

Residential Tenancies Act test is appropriate (and is passed) and no need for addition condition that transfer not
involve any “core” inherent powers (this would shift from functional to categorical approach)

Admin scheme, to operate effectively, typically needs exclusive power over matters at issue

Court’s inherent powers complement statutory assignment of specific powers, not there to override/replace them

Transfer hasn’t ousted power - still power to review decision
S.96 of the Constitution Act 1867 preserves the core jurisdiction of the superior courts and limits both the Parliament
Ratio
and the legislatures. The core jurisdiction is integral to the operation of the superior courts and cannot be removed from
them without amending the Constitution.

Jurisdiction of superior courts is being jealously guarded.

“Section 96 of the Constitution Act, 1867 is regarded as a means of protecting the "core" jurisdiction of the superior courts so
as to provide for some uniformity throughout the country in the judicial system.”  need to ensure uniform administration of
justice and application of rule of law as it is so important. (Para 15).

“The English judicial system is the historic basis of our system and is explicitly imported into the Canadian context by the
preamble of the Constitution Act, 1867.” (Para 29) Quebec is in a unique position – its substantive law is within the French
civil law system, while procedural law is English common law system.

“The provincial superior courts are the foundation of the rule of law itself” (Para 37)

Court points out that there is no exhaustive list, priceless because it is inherent, residual jurisdiction. However, there are a few
general headings: “i) ensuring convenience and fairness in legal proceedings; (ii) preventing steps being taken that would
render judicial proceedings inefficacious; (iii) preventing abuse of process; and (iv) acting in aid of superior courts and in aid or
control of inferior courts and tribunals.“ (Para 33)
ONTARIO - Courts of Justice Act (CJA) R.S.O., ON; 11, 23, 34, 38, 106 – Superior Courts
Federal Courts Act – Jurisdiction of Federal Courts, p. 21
Relief Against the Crown
17.(1) …Federal Court has concurrent original jurisdiction in all cases in which relief is claimed against the Crown.
Extraordinary remedies, federal tribunals
18.(1)…Federal Court has exclusive original jurisdiction…
CMN – R v. Zolotown, 2008, p. 81– Concurrent Jurisdiction of Superior Court
Facts: Zolotow has $900,000 in diamonds taken from him by Customs when he failed to declare them.
Issue: Whether the motion judge (Superior Court) properly exercised his discretion to stay the action under s. 106 of
the Courts of Justice Act based on his determination that the federal Court is the court of preferred jurisdiction? [YES]
Maj (Unanimous Court): S. 106 of the Act gives the judge the discretion to stay the action on the basis that the Federal Court is the
preferred jurisdiction.

Zolotow argued that his claim was pure CML property and that the ON Superior Court has jurisdiction to determine his action.

Even if Z is correct that his claim is CML property and not against the Customs Act the jurisdictional issue remains an open
question for determination. Both the Superior Court and the Fed Court have jurisdiction over CML action in detinue against the
Federal Crown.
Ratio: Motion judge exercised his discretion upon proper principles to conclude that the proper jurisdiction for Z to
advance his claim is the Federal Court.
19
Greg Koenderman – JICP – Winter 2011
APPELLATE COURTS AND THEIR JURISDICTION
Key features

Courts of Appeal in Canada are always s.96 courts

Ambit and extent of appeals involves conflicting policies

On one hand, we want a check on errors and unjust decision  rule of law affirmed.

On the other hand, if everything could be appealed, the system would be clogged and the trial judge would be seen as

a speed bump on the road to the SCC  we want finality to the dispute

Appeals of right vs. appeals with leave of the court

Appeals of right differ across jurisdictions
o In Quebec

26 CCP  if more than $50 000, appeal from Cour du Quebec to Court of Appeal

Certain topics always have a right
o Contempt
o Adoption
o In Ontario
1) CoA
1. Appeals as of Right for issues over $50,000
2. Will hear appeals from Divisional Court, but only with Leave
2) Divisional Court
1. Appeals as of Right under $50,000
3) Superior Court

Superior court judges thus wear 2 hats: superior court judge, and divisional court judge.

Divisional court hears appeals (as of right) from the superior court under $ 50 000. So in a sense,
the divisional court is an appellate court, but only in limited amounts in appeal.

Decisions can be appealed to the CoA, but only with leave.

See ss. 6, 18, and 19 of the CJA.

Leave to appeal (When will the Court Grant Leave?
o CCP 26(8) – Courts will accept leave when - Issue of Principle, a new issue, question of law that has
conflicting judicial precedents.
o Application is done in writing in some jurisdictions (ON), and though pleading in front of a single judge in
others (QC)

ON  61.03.11 CJA
o Both appeal and leave to appeal must be taken in limited amounts of time (usually 30 days)

QC  494 CCP

ON  61.03.11 CJA
Role of the appellate Courts

Roles of appellate judge vs. trial judge (cf. Housen)  Fact vs. Law

Appeal
o Delineate and refine legal rules and ensure their universal application
o Forward looking  how is case going to affect law in this area, not just between 2 parties

Trial
o Resolve individual disputes based on the facts before court and settled law
o Backwards looking  specific issues of the parties
Stardard of review



What deference should be paid by court of appeal to the trial judge?

Should it be overturned whenever there is any sort of error (no deference)?
o Maximalist  standard of correctness

Should trial judge be overturned only when there is a palpable or overriding error (great deference)?
o Minimilist  palpable and overriding error

Housen  majority (great deference) vs. minority (little deference)
This, again, is a policy decision

Three heads are better than one, but….

Rationalization and efficiency of civil justice system

Promotion of legitimacy and integrity of trial court decisions

Recognition of role suitability of trial judge (only trial judge see witnesses for example, hear testimony, etc.
Cromwell says we therefore need to have a hybrid system.
20
Greg Koenderman – JICP – Winter 2011


Standard of Review in different circumstances

Questions of fact
o Palpable and overriding error
o In other words, CoA must pay great deference to the trial judge (Housen)
o Trial judge is there to fact-find, this is his role

Questions of law
o Correctness standard (simple error)
o Maximalist view – little deference (Housen)
o Fits with the CoA’s law making function.
Yet courts are rarely faced with pure questions of fact or pure questions of law.

Inference of fact
o Taking facts and imputing law through them
o They are dealt with in the same way as questions of fact  palpable and overriding error (great difference)
o Housen: Imputing knowledge of hazardous condition of road to municipality

Mixed questions of law and fact (Main issue in Housen)
o Applying facts to the legal standard
o Example: Causation – was there an appropriate causal link?

If judge says that standard is “likely to result”  can say: wrong!

However, if he gets this legal standard right  cannot override
o See Housen: Negligence

Majority  palpable and overriding error, except when we can isolate question of law

Dissent  standard of correctness, unless you can pull out question of fact.

Other Policy Considerations
o Rationalizing and efficiency of civil justice system
o Promote the legitimacy and integrity of trial court decisions.
o Recognition of role suitability (and expertise) of TJ.

What does H.L. v Canada decision do to the Housen Test
o Fish – agrees with the test in Housen.
o Expert evidence – issue of fact
o Causation – inference of fact – great deference
o Loss of past earnings – fact – great deference
o Whether loss of past earning is effected by incarceration – question of law – reversible
o Deduction of social assistance – law – reversible.
o TJ decision lacked an evidentiary basis –
Pape and Adair – critical of the palpable and overriding error.

Justice Hilton

149 Appeal Court Judges in Canada, plus 9 Judges at the SCC

946 federally appointed judges

2000 Cour of Quebec, Superior Court, etc. across Canada. There are more QC provincial court judges than Superior
Court judges.

No appeal anywhere, unless there is a statutory right of appeal. There is no General Right of Appeal.

Appellate Courts must ensure that parties before them have a right to be before them, and the court is able to do what
the parties are asking them to do.

CCP 5.01 – right of Appeal to dispose of motion to dismiss. The large bulk of Appeals are disposed of in this manner.
Acts as a filter to unmeritorious appeals.

One judge sitting alone decides whether leave to appeal is granted up to 30 days. Beyond 30 days must make leave
request to a panel of 3 judges.

Interlocutory appeals – before trial, during trial (ie to allow a witness to testify at a trial that is ongoing),

Application has to show that the case will advance the law, and go beyond the interests of the party.
o CoA will refuse leave in cases where the TJ was wrong, but will equally grant appeal to for cases they know
TJ is correct.

Some law specify no right of appeal – small claims judgement, Superior certification of Class Action,

Most appeal are dismissed, and more leave applications are dismissed

QC CoA sits in panels of 3. Court faces heavy volume of work b/c they largely do not control their workload.

Features of being Appellant Judge you have to become a Generalist. He is doing things in law that he never touched
as a lawyer.
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Greg Koenderman – JICP – Winter 2011

At least 50% of Appeals are decided at the hearing. Reflects the preparation of judges, and the ease with which
Appeal is allowed and how many cases are going nowhere.
If judgement is reserved, most decisions are rendered within 3 months.
Most common error of Lawyers at CoA is to pretend that the trial did not take place, and try to reargue the case.
Most work of judges is done prior to the hearing. Most work at trial is done during the trial.
TJ has many advantages that CoA does not: ask questions, asses characteristics of witnesses that would not appear
in transcripts.
Problem Areas:
o Some TJ do not make findings of fact, and simply summarize the evidence
o Multi-layered issues and whether the issue is statutory or prescribed
o Poorly reasoned findings; conclusions without findings – likely make findings of fact at CoA
o TJ exclude/include evidence they should have included/excluded – likely send back to trial
Palpable and overriding error is often argued and seldom successful
Housen discourages intervention on issues of fact -para 5 of Iacucci, “clear to the mind”.







CCP 25 – 31 – The Appeals Court
Ontario Court of Justice Act ss. 6, 8, 18, 19.
The Court of Appeal
CML - Housen v. Nikolaisen [2002] SCC, p. 82; Standard of Review
Facts
Issue
Holding
Reasons


Appellant (H) was a passenger in a car driven by N on rural road in the respondent municipality (Shellbrook).
While driving (N had been drinking), visibility approaching accident area was limited due to radius of the curve of
road and uncleared brush growing by its edge.

Trial judge held that H was 15% contributorily negligent for accepting ride from N, and apportioned remaining joint
and several liability 50% to N and 35% to municipality. C

Appeal overturned finding that municipality was negligent.
What is the standard of review applicable to the decision of the trial court by the appellate courts?
(Should CA have overturned trial decision?)
See below(No)
Majority (McLachlin)

Finality is an important aim of litigation.

We should not presume that the appellate court judges are somehow smarter.

The appeal is not a retrial of the case.

Standards of review according to the type of question before the appellate court:
1)
2)
3)
4)
Questions of law: standard of correctness: the appellate court is free to replace the opinion of the trial judge
with its own. Reasons

Principle of universality; requires the appellate courts to ensure the uniform application of the law

The recognized law-making role of the appellate courts.

The primary role of the appellate courts is to delineate and refine the legal rules and ensure their
universal application.
Findings of fact: cannot be reversed unless it is established that the trail judge made a palpable and
overriding error  high degree of deference to the trial judge in this matter.
Reasons

Limiting the number, length and cost of the appeals: saves public resources and also the energy of
the parties (who do not have to present the same case twice)

Promoting the autonomy and integrity of trial proceedings: other stance would weaken the confidence
of the public in the judge’s ability to decide the case before him.

Recognizing the expertise and the advantageous position of the trial judge: has extensive exposure to
the evidence, hears the witnesses directly, is versed in this type of matters.
Inferences of fact: similar standards as for findings of fact: reversed only in case of palpable and overriding
error:

It is not the role of the appellate courts to second-guess the weight to be put on the different pieces of
evidence.

Not free to interfere when there is only difference of opinion over the weight to be assigned to the
underlying facts.

Many of the same policy reasons as in the case of the finding of fact.
Questions of mixed fact and law (involve applying a legal standard to a set of facts; Just like in the case of
inferences of fact, it is based on inference): they lie along a spectrum.

Where the error in the finding of negligence can be attributed to the application of an incorrect legal
standard: incorrect rule  standard of correctness.

Where the question of law cannot be extricated from the factual one  overturn only for palpable and
overriding error.

Caution should be applied in trying to extricate the legal question from the factual one

The courts should give great deference to the negligence findings by jury: overturned only where the
22
Greg Koenderman – JICP – Winter 2011
decision is so “unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a
whole and acting judicially could have reached it”.

In the law of negligence: great deference should be given to the trial court’s finding
In this case, trial judge’s conclusion on the cause of the accident was a finding of fact subject to the palpable and
overriding error standard of review  no palpable or overriding error.
Bastarache J. (dissenting):
Questions of mixed facts and law:

Once the facts have been established, the determination of whether or not the standard of care was met by the D
(question of law) will in most cases be reviewable by the standard of correctness – the trial judge must appreciate
the facts within the appropriate standard of care.

In many cases, viewing the facts through the lens of the law involves a normative question, a policy-making and
law-setting function that is within the purview of both the trial judge and appellate courts.

Here, trial judge made both errors of fact and errors of law.
Different standards of review depending on issues of fact v law.
Ratio

Majority (great deference) vs. minority (little deference)

Issue was division of responsibility  split of negligence between driver, passenger, municipality (allegedly dangerous curve).

When trial judge assessed responsibility of parties, to what extent can the CoA substitute it with their views? To what extent
must they adhere to it?

Negligence  mixed question of fact and law

Legal standard (reasonable person) + application of facts = has municipality failed in its duty?

Policy split
o Minimalist  majority

Like questions of fact unless error is of legal standard
o Maximalist  minority

Bastarache is upset about this

Wants a broader standard

Recognizes what judges are really doing  judges are making law when they render decisions and
they are adding policy to it (normative function). We cannot have such questions left to trial judges
only.

So majority  Rule is great deference (palpable and overriding error) except when can isolate question of law

So minority  Standard is correctness unless you can pull out question of fact.
CMN – H.L. v. Canada, SCC, 2005, p. 93– Standard of Review; Appellate Court only trump TJ if palpable and overriding
error
Facts: L brought action for sexual battery against S and the Federal Government. L left school, drank heavily, and was unable to work
from 78 to 87 and only intermittently from 88 to 2000. Experts testified his inability to work was attributable to his alcoholism,
emotional difficulties, and criminality which were all attributable to his sexual abuse by S. TJ awarded pecuniary and non-pecuniary
damages as against the federal gov’t. CoA overturned the pecuniary damages on the grounds the evidence fell short of proving the
loss.
Issue: What is the correct Standard of Review applicable to Saskatchewan? [Review for Error and not rehearing]
Maj (J. Fish)(5): CoA departed from the applicable Standard of Review in this case.

Concern is with the facts and nothing but the facts.

Sask CoA may “substitute its own view of the evidence and draw its own inferences of fact where the TJ is shown to have
committed a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or
unsupported by the evidence.” [55-56]

Standard of Appellate Review on questions of fact is “Review for Error” and not “review by rehearing”. [9]

Does not depend on whether the concern is with direct or indirect proof of fact.

Palpable and overriding error – explained at para 55
o
Inferences of fact can only be set aside if they are clearly wrong

Test to set aside decision can also be met when TJ findings of fact can properly be characterized as “unreasonable” or
“unsupported by the evidence” [56] [this statement considered by some to change the standard of review from Housen] cf. Pape
& Adair.

Appellate court must explain why or in what respect the impugned finding is unreasonable or unsupported and how it likely
affected the result.

All 9 judges agreed in Housen that an appellate court ought never to re-try a case – deference is owed to all findings of fact made
by the TJ. Inferences of fact made by the TJ drawn from “reasonably supported evidence” should not be reweighted and replaced
by an appellate court [74].
Dissent (Bastarache): Only provided in headnote: Dissent believes the Saskatchewan court of appeal act gives the CoA the right to
review by re-hearing the case, and not review for error. Housen should not apply to appellate review in Saskatchewan.
Ratio: COA may only substitute its own view of the evidence and draw its own inferences of fact where the TJ is shown to have
committed a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported
by the evidence.
Pape and Adair, Unreasonable Review (2008) p. 104 – Standard of Review is too harsh on losing parties; HL changed
the standard of review in Housen

Overview – CoA should not ask whether the TJ made a palpable and overriding error, but whether the TJ‘s findings
are reasonable on the record.
23
Greg Koenderman – JICP – Winter 2011

Justice must not only be done, but must be seen to be done – this requires that losing parties be heard and receive reasons
for the decisions against them.

This supports the repute of the administration of justice in the public’s eye.

H.L. claims to be consistent with the Standard of Review in Housen, but Fish J.’s statement that “unreasonable” is a
functional equivalent of “palpable and overriding error” expands CoA’s ability to intervene in TJ findings. [105]
Conclusion: CoA’s could substantially advance their mandate if they engaged in a “reasonableness review”. This will go
further in satisfying the losing party than the “palpable and overriding error” standard.
JUDICIAL INSTITUTIONS - FUNDAMENTAL PRINCIPLES



Section examines what qualities an ideal judiciary has.
We can have wonderful substantive and procedural laws, but without principles like equality, impartiality, competence, etc, we
have nothing.
Issues we want in an ideal judiciary:

Independence

Impartial

Diversity

Accountability, transparency

Accessibility (more related to civil justice; efficiency, equality)

Competent

Ethical

Cdn Judicial Council’s 5 ethical principles for judges are: independence, integrity, diligence, equality and
impartiality. (Oversight agency for federally appointed judges).
Publicity of Judicial Proceedings
PUBLICITY AND THE OPEN COURT PRINCIPLE

“Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It
keeps the trial judge himself while trying under trial”. (J. Bentham)

Open courts is the hallmark of our democratic society

“In any constitutional climate, the administration of justice thrives on exposure to light, and withers under a cloud of
secrecy” (Fish, J. in Toronto Star Newspapers Ltd. v. Ontario (2005) SCC). Cf. Albie Sachs – South Africa Court:
“Justice isn’t cloistered”.

Reasons for Publicity of Court Proceedings:

Keep judges under scrutiny

Gives public confidence in the system – people become suspicious when things are hidden. People tend to trust
decisions, as long as they feel like they were listened to and the process was fair.

Most people follow judge orders, and there is no need to forcefully execute a judge’s order.

Busy society typically relies on reporters to cover trials – linked to the fundamental freedom of expression.

We find this open court principle everywhere!

S.23 Qc Charter (public hearing) (quasi-constitutional)

S.11(d) Canadian Charter of Rights and Freedoms (public hearing) (constitutional)

ALI/UNIDROIT s. 20 (oral hearings, judgments, etc. should be ordinarily open to public) (transnational)

S. 135/137 Ontario CJA – all court hearings shall be open to the public

Art. 13 CCP

The theory is that with publicity, everyone knows what is going on. We will therefore be able to see if the values we want from
out judiciary are present: competence, independence, accountability, etc.

If judges are exposed to scrutiny and this leads them towards certain ideals, then this will lead to the public’s
confidence in the judiciary, and will also coincide with fundamental values of freedom of expression and freedom of
the press.

Vancouver sun: “ Public access to the courts guarantees the integrity of judicial processes by demonstrating “that justice is
administered in a non-arbitrary manner, according to the rule of law…Openness is necessary to maintain the independence
and impartiality of courts. It is integral to public confidence in the justice system and the public’s understanding of the
administration of justice. Moreover, openness is a principal component of the legitimacy of the judicial process and why the
parties and the public at large abide by the decisions of courts.” (Para 25)

Parties abide by court judgments because orders can be executed (as opposed to mediation, settlements, etc. – must be
homologated). However, most decisions in our society are voluntary complied with. This is based on theory that public has
confidence in our court system.
24
Greg Koenderman – JICP – Winter 2011
Exceptions to Open Court

These exceptions focus on…

Vulnerability of certain people

Risk to fairness of trial (if the jury is going to be subject to a lot of media accounts of the case, there is a risk that they
will be unduly effected)

There is no such thing as a blanket exception:

Publication bans (Dagenais decision) (reporters cannot report on the case)

Exclusion orders (in camera hearings)(prevents randoms from walking into court) (e.g.: article 13 CCP and Ontario
Child and Family Services Act)

Sealing or confidentially orders (Sierra Club) – case proceeds in public, no publication ban, but certain documents
for certain reasons will be sealed.

Anonymity orders (e.g. article 815.4 CCP) – case is reported without the parties names

Big question  WHEN will exceptions apply
o Key case is Dagenais
o All exceptions follow the same general common law test.
CML – Dagenais v. CBC [1994] SCC P. 108 – Publication Ban Test
Facts


4 people on trial in Ontario charged for sexual abuse of small boys in catholic school.
Before jury was going to make finding, CBC put together a mini series called “The Boys of St. Vincent”, saying it
was a fictional account. However, fictionalized accounts were so similar to facts in Dagenais the worry was that this
would effect jury’s ability to make an impartial decision
Should adverse (pre-trial) publicity be the subject of a publicity ban? [NO]
Issue
Holding
Order Sought: Publication Ban - Accused applied for injunction to restrain the CBC from airing the mini series
(publication to ban).

Trial and CA  ordered ban (although CA restricted the ban to Ontario – today this would be ridiculous!).
Majority (Lamer J.)
Lays down test and reverses publication ban:
1. Is the ban necessary to prevent a real and substantial risk to the fairness of the trial?
a. Necessary to prevent a harm
b. No reasonable alternatives
2. Do the salutary effects of ban outweigh deleterious effects to freedom of expression?

Lamer said firstly that the ban was too broad. But either way, other measures where possible to achieve the same
result

Change venue

Instruct jurors not to watch it (but would they really follow this?)

Sequester jurors (ensures that they do not have access to TV)

There may be valid reasons for a publication ban, but it must pass the test and must be as restricted as possible
(minimalist view).

The party seeking the publication ban has the burden of justifying the limitation on the freedom of expression.

6 General Guidelines offered for the application of future publication bans. (p. 114)

In further cases, the harm may change, but the test remains the same.
Test for publication ban must be satisfied before courts will issue a ban.
Ratio
Notes

After Dagenais, there was a lot of commentary to the effect that its spirit was crumbling due to growing number of
exceptions accorded to certain groups (Ex: Sierra club, Newspaper articles)

Despite the rigorous test in Dangenais, Roach says, how come the number of publication bans is increasing?

Outcry from legal community over cases post-Dagenais.
Contexts outside the Criminal Domain

Context: protection of a commercial interest (Sierra Club & Boeing)

The same test is an issue – the real and substantial harm is not to the accused, but to the administration of justice or
even a commercial interest.

Sierra club and Boeing

Context: Protection of a commercial interest

Issue: Confidentially (Sealing) order

Is Sierra Club consistent with Boeing?
o Sierra club (Iacobucci J.)

Real outcry

How can we protect what is essentially a private commercial interest? Doesn’t the public have a
right to know about the environmental impact of sale of nuclear reactors to China?

Paternalistic – public is not interested in these types of documents,
o Boeing

“It will be a rare case were a confidential order is justified in a commercial dispute”  this goes
against Sierra Club.

They are consistent in legal application of the test, yet they come to different results.
25
Greg Koenderman – JICP – Winter 2011
Sierra Club of Canada v. Canada [2002] SCC P. 115 – Dagenais test adapted to Confidentiality Orders
Facts

Atomic Energy of Canada Ltd (AEC – Crown Corporation)) has a K with China to construct and sell nuclear reactors.

Sierra Club argues this authorization triggers an environmental impact assessment under the Canadian Environmental
Assessment Act, which the federal government failed to do.

Sierra Club seeks a judicial review of the authorization and applied for the production of AEC’s Confidential Documents.

Documents describe ongoing environmental assessment by Chinese authorities under Chinese law.

AEC resisted production based on fact that Docs were property of Chinese authorities and AEC did not have authority to disclose
them.

AEC then received authorization to disclose Docs from Chinese authorities on condition that they be protected by a confidentiality
order.

AEC sought to introduce the Confidential Documents under Rule 312 Federal Court Rules and requested a confidentiality order.

Under the order, the Confidential Docs would only be available to the parties and court, however, there would be no restriction to
public access to the proceedings.
Should the confidentiality order be granted?
Issue
Holding
Yes
Reasons

Link between openness in judicial proceedings and freedom of expression established in Canadian Broadcasting Corp v. NB
Iacobucci
[1996] SCC  OCP inextricably tied to s. 2(b) Charter.

Dagenais test re: the exercise in judicial discretion to grant a publication bans uses Charter principles to balance freedom of
expression and right to a fair trial against proper administration of justice and other rights.

In Mentuck [2001], the test (dealing specifically with right to a fair trial) was broadened to apply to exercise in judicial discretion for
publication bans.

Test adapted to publication bans:
o
A confidentiality order under Rule 151 should only be granted when[118]:

Such an order is necessary in order to prevent a serious risk to an important interest, including
a commercial interest, in the context of litigation because reasonable alternative measures will
not prevent the risk (Necessity); and
o
Risk must be real and substantial
o
“Important commercial interest” must be a public interest in confidentiality
o
“Reasonable alternative measures” – judge must consider not only whether reasonable
alternatives to a confidentiality order are available, but also to restrict the order as much as
reasonably possible.

The salutary effects of the confidentiality order, including the effects on the civil litigants right
to a fair trial, outweigh its deleterious effects, including the effects on the right to free
expression (proportionality).
Application:
1) Necessity:

Is there a serious risk to AEC if the Confidential Documents disclosed? Yes: commercial interest at stake  preserving
AEC’s contractual obligation of confidentiality to China

Are there reasonably alternative measures? (Expungement/ summaries of Docs) No; Documents are important for AEC
to make a full defence; expungement ineffective and Sierra would challenge the summaries
2) Proportionality:

Salutary effects

Primary interest served by the Order: public interest in the right of a litigant to present its case (fair trial)  The
documents contain important defences available to AEC. Without the order, they would not be able to admit
the documents (without harming their commercial interests) and be deprived of a right to a fair trial.

The order would also facilitate access to the documents in judicial proceedings, and permit cross examination
of their contents  assists in search for truth, core value underlying freedom of expression.

Keeping info re nuclear installation out of public domain may also be of public interest in security.

Deleterious effects

The Order would infringe on OCP since public denied access.

3 core values underlying freedom of expression: (1) seeking the truth and the common good, (2) promoting
self-fulfilment of individuals by allowing them to develop thoughts and ideas as they see fit, and (3) ensuring
that participation in the political process is open to all persons (Irwin Toy)
1)
Truth: It would impede search for truth but it would not exclude public from the courtroom. The Order
would also only restrict public access to a small number of highly technical documents. The
Documents would be available to the court and the parties. Also, as discussed above, if order is
denied, AEC would not be accessible and judge would be forced to rule on incomplete evidentiary
record. Either way, public would not understand much of the content of the documents (contributes
little to public interest in search for truth).
2)
Self- fulfilment: not significantly affected (and not closely linked to OCP)
3)
Open participation in political process: This principle is always engaged when the OCP is engaged.
Since this motion relates to an application for judicial review of a government decision to fund a
nuclear energy project, there is a demonstrated public interest (media is not indicia of public interest).
But scope of the order is narrow and therefore open access to the judicial review application would
only be slightly impeded by the order sought.
A confidentiality order may be granted where 1) it would have substantial salutary effects on the applicant’s rights and 2) the
Ratio
deleterious effects of the order on OCP and freedom of expression would be minimal.
Boeing Satellite v. Telesat (2007), P. 123 – ON SC – Sealing order denied, Important Commercial Interest defined
Facts



Dispute involving commercial contract  Boeing built communications satellite for Telesat.
Telesat is suing for losses resulting from faulty satellite
Both Boeing and Telesat sought sealing orders on proceedings (and in the alternative, the contract should be
sealed, and the Statement of Claim redacted).
26
Greg Koenderman – JICP – Winter 2011

Issue
Holding
Reasons
Ratio
Boeing and Telesat claim that they have a contractual obligation of confidentiality concerning the contract itself.
Competitors could misuse information if it is made public.

Boeing and Telesat argue that they intended to form a highly confidential business relationship, and it is therefore in
the public interest, for valid commercial reasons, that the parties’ privacy expectations be protected  they should
not have to sacrifice confidentiality in order to achieve adjudication.
Should sealing orders be granted?
No (Hackland J.)

Confidential arbitration process is available under the contract.

Sierra  confidentiality orders may be granted to protect a party’s commercial interests, in limited circumstances,
particularly when there is a contractual obligation in confidentiality.
o Confidentiality order should only be granted when:
A. Such an order is necessary in order to prevent a serious risk to an important interest, including
a commercial interest, in the context of litigation because reasonable alternative measures will
not prevent the risk (Necessity); and
B. The salutary effects of the confidentiality order, including the effects on the right of civil litigants
to a fair trial, outweigh its deleterious effects, including the effects on the right to free
expression (proportionality).
o “Important commercial interest”  not one specific to the party requesting the order, but rather one that is
of a public interest in confidentiality.

Application to the case
o Significant commercial dispute with two public companies  litigation is a matter of public interest
o Contract is an unremarkable one, and Statement of Claim merely reproduces parts of the Contract.
o It is not sufficient that parties agreed between themselves to keep their contract and their relationship
confidential
o So sealing order is not granted
o (However, as the entire contract was put in record by parties to facilitate justifying sealing orders, Court
allows parties to remove it prior to the files being unsealed).
It is not sufficient that parties agreed between themselves to keep their contract and their relationship
confidential  “Important commercial interest” is not one specific to the party requesting the order, but rather
one that is of a public interest in confidentiality.
Notes

What about the latest decision in Globe and Mail?

Encouraging settlement – keeps details private

How can we let the G&M write articles about this private affair?

What do courts do in cases of ultra embarrassing situations? (J.L. v. A.N.)

Bruker v. Marcovitz
o CoA is full of dirty details, yet Hilton reverses the publication ban on appeal.
o Two interesting things about his decision (excerpted in J.L. v. A.N.)

“I do not doubt that the revelation of the facts and the arguments I have described in my reasons
may well be a source of embarrassment for the parties. That however, is not enough to justify a
publication ban. The judicial reports are replete with cases that contain information of a highly
personal nature…”
o In other words – sorry guys, if you come to court, your life is an open book. If you do not
want this, don’t come to court!

Either way, these things are not of public interest and would not be reported on in news.

Should we invite T.V.s into the courtroom?

If we have the Open Court Principle, what better way to demystify the legal process than to have it on TV?

Sketches on TV in Canada (vs. saw OJ Simpson on TV in USA)
o Every province has rules regarding this
o S. 136 OCJA - No cameras in the Court room.
o Quebec – Règlement de procedure et de pratique s. 38 - No cameras in the Court room.

Some cases in Canada have been televised – SCC arguments are all televised
o Media is able to negotiate with court for permission
o So rules are not of public order

This ban on cameras has been taken to court on basis that it infringes freedom of expression
o R v. Squires (1992) Ontario CA

Court: yes it does infringe, but it is justified under s.1 of the Charter. It is important to maintain order
and quorum in the courtroom.

Jukier: this will morph in the next few years (influence of US + certain televised proceedings in CAD
have not been a disaster)

What is the effect of Internet/technological advances?
27
Greg Koenderman – JICP – Winter 2011






Puts everything we have talked about in a different context
15 years ago, a public court case would mean that you had to physically go to the courthouse and get the case
(required effort).
o Now  Google it!
o You can even Google the judges!
The challenge technology presents to the current regime

Definitions – what is a publication and what is media?

Increased Information awareness – FB, email is easier to spread than former handwritten letters, but how do you
know who distributed an email? The very first person, or subsequent forwarders.

Foreign Media – Canadian publications only apply to domestic media. You can find the story on foreign media cites.
Forgets about caches and internet archiving services.
How have courts responded?

Ignoring the problem

More or earlier bans – also trying to ban any reference to the ban, so people cannot write about who is violating the
ban, to direct people to that media source.
How should the Courts be responding?

Fewer bans and greater use of alternatives, b/c the dagenais balancing act…
What are the alternatives?

Venue change, greater questioning of jurors, fewer jury trials, shifting trial dates, gag orders on participants, more
explicit jury instructions. The US justice system does not make use of publication bans, they make use of alternatives.
CCP 13 and 815.4 – Sitting of Courts is Public; prohibition to identify a party to a proceeding
P. 18 – Ontario Courts of Justice Act (CJA) s. 135 – Public Hearings
p. 10 - ALI/UNIDROIT Principle 20 - Public Proceedings
K. Roach, “Let the Light Shine In” p. 131 – Publicity Bans should be restricted

Bentham: “publicity is the very soul of justice”

Dickson (SCC): public accessibility and concomitant judicial accountability should be the rule at every stage, and








should only be restricted to protect social values of superordinate importance.
Courts have not used Charter to strike down numerous exceptions to open-court principle.
Other values are in tension with open-court principle – but efficiency of justice shouldn’t be one of them
Courts apply a test: bans, if granted, should be as limited as possible, and as targeted as possible (and shouldn’t apply to the
ban itself) – and the positives must outweigh the negatives
Despite this, number of bans is growing.
Don’t need to change the test, but need procedural reform to allow for challenges and to require justifications
Judges should give notice and standing to media representatives when publication bans or sealing orders are considered –
adds delay and cost, but necessary  justice system works best when there is adversarial argument with the media present,
Reiterates and decries SCC leave requirement described above  “deplorable” situation, on which parliament has yet to act.
There may be good reasons for the bans, but the media and public have a right to know about them.
J.L. v. A.N. (1998), p. 127; Cour Sup. QC. – Publication Ban denied; intimate/sexual details do not justify pub ban

J suing A for damages after A gave her herpes.

Proceedings contain medical information and intimate details of J’s sex life.

J applies for publication ban (use of pseudonyms)
Should publication ban be granted?
Issue
Holding
No
Reasons

CCP art. 13; Quebec Charter of Human Rights and Freedoms art. 23  Open Court Principle
Corriveau
o Publication bans may only be invoked to protect public order and morality
J.
2-step test to impose a publication ban
A. Whether a publication ban is necessary to avoid a compelling risk that a trial would be inequitable; and
B. Whether the beneficial effects of the ban would outweigh the prejudicial effects on free expression of
those who would be affected by the ban.

The fact that the action involves matters of a highly personal nature is insufficient in law to justify a publication ban
(Marcovitz c. Bruker).

Medical reports and information on sexual relations of the parties in this case are not sufficient to justify publication
ban. [15]

J has not shown that she would suffer harm from publication.
The fact that the action involves matters of a highly personal nature is insufficient in law to justify a
Ratio
publication ban. Citing Hilton J. [111]

Case of JL v. AN would get media attention as this was the first time the transmission of an STD considered a civil wrong.

JL does not ask for a publication ban, but rather for an anonymity order and that medical documents be sealed
Facts
28
Greg Koenderman – JICP – Winter 2011


Judge says no – too bad (following Bruker) – this is why ADR is so powerful, b/c it is done in private.
Yet why is case cited with initials? Decision is reported by Soquij. It is Soquij’s discretion to report cases in the way they want.
They believed details were too embarrassing. Case at courthouse contains full names.
Globe and Mail v Canada (2010), p. 132; SCC – Publication Bans; Dagenais Test upheld
Facts
Issue
Holding
Reasons
LeBel
Ratio

G&M reported published stories about Group Polygone, leads to sponsorship scandal. GP brings a motion to force
G&M reporter DL to identify his source.

G&M brought a revocation motion as order to identify source breaches journalist-source privilege.

Procedureal motions ensue as G&M tries to protect their source, and Sup Crt judge on his own accord prohibits
G&M from publishing further on GP negotiations with Gov’t. TJ refused to hear motions on the publication ban.
Should the trial judge have issued a publication ban? [NO]
No

Journalist should not be subject to the legal constraints and obligations imposed on their sources. Here DL simply
benefited from the source’s desire to breach confidentiality. [81]

Whistleblowers will often breach legal obligations in the process of bringing to light their stories in the public
interest.

There was no proof of any illegal acts by GM or DL leading to the discovery of information.

Publication ban had the effect of limiting GM & DL FoE under s. 2(b). The TJ should have applied the Dagenais
framework. Determine whether:
1. The order was necessary in order to prevent a serious risk to the proper administration of justice, and [NO]
2. The salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties
and the public. [NO]

TJ violated one of the fundamental rules of the adversarial process by denying the parties the opportunity to be
heard before affecting their rights. On this ground alone the appeal should be allowed.
o It is the TJ duty to safeguard the rights of the parties”
Dagenais framework is equally applicable to all discretionary actions by a TJ to limit Freedom of Expression by
the press during juridical proceedings.
JUDICIAL INDEPENDENCE AND IMPARTIALITY GENERALLY
Bentham – if court system is open, we may scrutinize it and ensure that the values we want are actually there. So if we value
independence and impartiality, what better way to verify that they are actually being respected by having an open court?
“All legal arbiters are bound to apply the law as they understand it to the facts of individual cases. They must do so without fear or
favor, affection or ill will, that is without partiality or prejudice. Justice is portrayed as blind not because she ignores the facts
and circumstances of individuals cases but because she shuts her eyes to all considerations extraneous to the particular
case” (Locabail (UK) Ltd. Bayfield Properties Ltd (2000) QB 451)


Independence judges being free from external influences (usually political influences, but more generally, any outside
powers). External conditions that allow the judge to act in an impartial manner.
Impartially  judge open to considering all arguments before him or her – refers to state of mind of judge. The judges mind is
open and willing to consider all arguments
Independence thus refers to external conditions that allow the judges to be impartial. Independence is required for (leads to) judges
to be impartial. Both independence and impartiality need to exist.
Remember  justice must not only be done; it must appear to be done.
P. 15 - ALI/Unidroit Principle 1 - Independence, Impartiality, and qualifications of judges!!
Impartiality
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We want judges to be independent from the parties. We also want them to be institutionally independent so that they may hold
the government accountable (Roncarelli)
Judges in Canada are very careful to maintain the appearance of independence.
Comes from s. 96 to 100 of Constitution. Also talks about judiciary being separate from executive and legialsture, but implicit
More explicit in s. 11(d) CCRF – requires a public hearing by an independent and impartial tribunal. Only talks about people
charged with an offence.
And 1867 Constitution only deals with people who don’t go to federal courts? What about provincial courts who deal with civil
matters?

The pre-amble of the constitution imported from the UK gives us independence and impartiality.
Ensuring independence (what keeps judges independent?)
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Greg Koenderman – JICP – Winter 2011

Ref: PEI – Lamer J. “3 requirements for judicial independence – Security of Tenure, financial, institutional independence”

Institutional independence (from other branches of government)
o Usually found in the Constitution (i.e. separation of powers, s. 96 and following provide from a judicial branch which is
separate from legislative and executive branches)
o Government is one of the most frequent litigators in courts. Criminal cases, Charter challenges, AG… always in court!

Administrative independence
o Current issue in Canada
o Even if judges are federally appointed, their administration is provincial. S. 92(14) puts provincial court administration
in provincial realm of responsibility.
o Chief justices are appointed from among puisne judges and are administrators of the court, but have no real
administrative power

Executive model of court administration. Chief Justice has administrative independence to assign cases as
he sees fit.

Judges are not happy with this  Provincial AG is the one controlling funds that go to the court, yet
provincial AG is also the biggest litigant!

Decisional autonomy
o Most important - They must be free from all pressure.
o When judges render their decision, they must do so independent of any, state, police, party, etc. influence.

Judicial immunity
o “He should not have to turn the pages of his books with trembling fingers asking himself: ‘If I do this, shall I be liable in
damages?’”
o Cannot sue judge for something they did wrong on the bench. They bear no legal duty for the mistakes they make in
the exercise of their judicial duties.

Financial security provides such autonomy  we want judges to earn enough money that they will not be bought.
o Judges do not receive merit pay – performance-based pay would endanger independence.
o Monopsony  denotes the absence of competition on the buying side of the market (as opposed to a monopoly)
(Posner).

If you want to be a judge, there is only one place to go.

With arbitration (private judging), Posner believes this dynamic is changing.
o Issue Canada

Judges salaries are set by the very government that appoints them (see s. 100 for example)

This poses a problem, as judges should not ever be in a position that their pay can be a mechanism open to
political reprisals.

Federally

Judges Act of 1999 (Federal)  s. 26 establishment of: “Judicial compensation and benefits
commission”.

This independent body recommends salaries for judges.

Provincially,

Reference re Remuneration of Judges of the Provincial Court (PEI) (1997) (p. 165)

Government wanted to reduce judicial salaries because of poor economic context
(rational explanation – all public officers’ salaries were to be reduced).

SCC ruled that just because judges are provincially appointed and s. 96 + do not
officially apply, this is not true. The spirit of s. 96 + and the concept of judicial
independence applies to provincial courts as well.

It was unconstitutional for gov’t to play with salaries. All increases, decreases, or
even leaving unchanged judges salary must go thru the salary commission.

There must be an independent commission as a buffer to change salaries.

There must be a basic level of remuneration as public perceptions would be
undermine

Provincial Court Judges’ Association of New Brunswick (2005) 2 SCR 286

What happens if commission’s recommendations are not followed?

While the commissions’ decisions are not binding, the government’s decision is
subject to judicial review (ironic!).

The judicial review is to the standard of how serious the gov’t considered the
commissions recommendations. The gov’t has to justify their decisions, and
having some reasonable and factual basis.

Ensuring the Independence of the Appointment of Judges (Hot in Quebec)
o
Trained specifically as judges (france) Judge de Carriere

Seen more as bureaucrats and public servants in France – not chosen from the legal elite

Judges are appointed – by the government
30
Greg Koenderman – JICP – Winter 2011

Elected – as some are in the U.S. 34 of 50 states have appointed judges, the remainder have elected judges at the
state level.
o How do you have elections, when elections cost money and are funded by partial people (lawyers, litigants)

Bastarache Commission
o
Former minister Belmare was wrong and there really wasn’t impropriety in the appointment of judges in Quebec.
o
Answers to problem, is a larger committee involved in the appointment.
o
Makes 46 recommendations.

Standing selection committee (30 members) – recommend 3 names to MoJ, who chooses one.

Fundraising is prohibited

Unknown whether this will change anything, but designed to minimize influence and maximize merit.

Goals: Transparency, public access, clear notion of what a meritorious is, judges political affiliations are
irrelevant.

Security of tenure
o See Posner
o Length of appointments (life?), renewable terms?
o Pull of independence vs. accountability.

If there are no renewals, re-appointments, etc., then there needs to be accountability – Who watches the
Watchmen?
o Tug of war between independence vs. Accountability

More of one means less of the other.

No Federal Judge has ever been removed from the bench, but one has resigned at the very final moment on the cusp
of being fired.
CML – Caperton v Massey Coal, US SC; 2009, p. 153; 40 reasons why a judge should recuse
Facts: Elected Judge received millions in campaign financing from director of defendant corporation. Plaintiffs applied for a motion
to recuse and he refused. Subsequent decision found for the Defendant by a vote of 3-2.
Judge is required to recuse when: “the probability of actual bias on the part of the judge or decision maker is too high to be
constitutionally tolerable”.
Issue: Should judge have recused himself from deciding a case involving a litigant who made a large donation to his
campaign? [YES]
Held: Due process requires recusal.
Reasoning: (J. Kennedy). Objective Standard for when a judge should recuse

Judge refuses to recuse himself b/c there is no objective evidence of bias, but merely subjective belief of bias.

Due Process requires recusal where judge has financial interest in the outcome, or contempt charges where judge was
involved in earlier decisions.

State has adopted ABA objective standard: “a judge shall avoid impropriety and the appearance of impropriety”.

Recusal for objective standard of impropriety will preserve the public’s confidence in the judicial system.
Dissent (J. Roberts) New Rule creates boundless problems

No basis to require a judge to recuse himself for the “probability of bias”.

This new rule provides no guidance to judges and lawyers and will lead to an increase in allegations of judicial bias and
demands for recusal.

The recusal ordered by the majority will have the opposite effect: it will erode public confidence in the judiciary and
perpetuate the perception that justice is just a game, and this adds one more tool into the well financed litigants arsenal.
Ratio: A judge must recuse himself where his “conduct would create in reasonable minds a perception that the judge’s
ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired”
IBA Minimum Standards of Judicial Independence
Posner, “How Judges Think”, p. 141; judges terms, salaries, and non-pecuniary wages

Life tenure guarantees independence but invites abuse
A nonrenewable fixed term would not compromise independence – but judges would be distracted by making
future plans and their decisions might be affected; would also increase President’s power to shape the judiciary
o “Senior status” is a good answer: judges can continue working at lower caseload for same pay (variation on a
buyout scheme)
o BUT on Supreme Court the argument are different: no senior status is possible; antidemocratic to have them
there forever
Judges do not receive merit wages (when pay is raised, it is raised for all)
Little age-related decline in quality or even quantity of performance for judges
If low salaries make judges retired, it’s like there’s a term limit
Unclear that judges who have the highest income in private practice are better judges
So: effect of salary raises on judicial performance is unclear
Supreme Court, however, is calling for salary raises to keep judges in the judiciary (currently salaries are low relative to most
other high-level law-related professions) – but there’s no shortage of applicants
We don’t know why judges retire – some may do so for other reasons, and keeping them in their jobs with a higher salary could
o
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31
Greg Koenderman – JICP – Winter 2011
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be bad
Judges also receive other compensation than just salary: young retirement; less work than practicing; more prestigious than
teaching; can work into old age if they want; doesn’t have to initiate projects like an academic; power to decide cases and to
shape the law; they are public figures; deference – these elements are growing relative to private practice, and the fact that
many judges continue with senior status after retirement suggests that these benefits are substantial
Competitive picture is changing because of private judging (arbitration)
Increased draw from public sector to judiciary isn’t likely because of lower salary differential but because of types of cases
(employment, criminal, prisoner) being heard; more likely to be picked also because they have a track record that can be
analysed; more involvement in public issues
Rising salaries would do little to attract more commercial lawyers, because they make so vastly much more; would raise the
levels of patronage; would attract leisure-loving practitioners (low salaries are currently a screening device)
Salaries that are not raised may prompt some resignations, but the numbers are too low to tell, and it might be good to shed
these people
Not necessarily good to be flippant about judicial resignations, though: arguable that judgeships should be terminal jobs; may
indicate that fewer people find the job attractive (though this is not the case, as stats show); judges could purposely
underperform
Unclear by how much salaries should be raised; cost of living adjustments are important; intermittent large raises incentivise
judges to stick around longer than they should
Recommendation: cost-of-living allowance (varied by location) and add an estimate of average wage growth in other
professions
Bastarache Report
Findings: Bellemare had no pressure. He acted voluntarily and objectively in the nomination of QC Prov Judges because there was
no evidence to the contrary.
Recommendations:
1. Secretariat (independent from Legis and Judic, website for transparency and independence ) who selects judges for the Cour du
Québec and Municipal Courts. It assigns members of the public to each panel that selects judges. The members of the public are
those that sit on the Standing Selection Committee.
2. The Selection Committee for the Standing Selection Committee (‘SSC’) appoints members representing the public to sit on the
SSC. The Selection Committee (i.e. not the SSC) appoints members representing the public to sit on the SSC. It should ensure
gender balance, geographical representation and fair representation of minorities as possible.
3. The Standing Selection Committee (SSC) identifies individuals who maybe recommended to fill vacancies on the Cour du
Québec and Municipal Courts. It should have 30 people: 12 judges (6 from Cour du Québec and 6 from Municipal Courts) + 12
members of the public + 6 lawyers. Each member’s term should be 3 years and expiries should be on rotation in order to ensure
continuity in the selection criteria.
JUDICIAL APPOINTMENTS / IMPARTIALITY
Ensuring Independence in the Appointment of Judges.
3 major methods of appointment
1) Should judges be juges de carrière? – trained specifically as judges (École de la magistrature in France)

Repercussion – seen as a bureaucrat/civil servant.

Level of respect is very different.
2) Should judges be appointed as they are in Canada

Average age of appointment 40

Have shown competence during legal career.
3) Should judges be elected as some are in the US?

Judges become political animals

Only district courts (not federal)

See Lanzinger’s article
Canadian and american approaches

In Canada

Judges must “put their name in”

Candidates from superior courts are screened by judicial advisory committee
o In 2006, Harper put law enforcement officers on committee as judges are too soft on criminal  uproar
o “Recommended” pile goes to minister of justice who then makes decision

US vs. Canada – supreme court judges

In US  must be ratified by senate
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Greg Koenderman – JICP – Winter 2011

o So transparent that it becomes a soap opera
In Canada  claim that process is not transparent
o In 2005, government made change to appointment process. Committee would be given list of 7 potential
names by minister of justice, would vet them, and narrow list down to 3. MJ would then give name to PM for
appointment
o 2006 (Harper) – ad hoc “polite confirmation meeting” (parliamentary interview) with Rothstein so that public
who could have better idea of appointment
o Cromwell – did not have parliamentary interview (parliamentary issues at the time)
J. Lanzinger, “A Personal Reflection on Judicial Elections” P. 149 -
In the US the system is split between those judges who are appointed and those who are elected by the public.
J. Lanzinger writes about participating in her 6th election for Judge within 13 years.

Federal Judges have lifetime appointments as protected by the US constitution.

34 states allow for “merit selections” whereby they are appointed for a certain term by the governor who is acting on the advice
of a non-partisan commission.

In Ohio to run for judicial office, one must have been a lawyer for 6 years.

Usually one of the political parties endorses a candidate – their party is not listed on the ballot but is publicized during the
campaign.
In 1990 the Ohio Bar Associate tried to switch the system to one based on merit but a coalition of political parties and labor
leaders campaigned against it on the theme, “Don’t let them take away your right to vote for your judges.”
Other states: direct election – though there isn’t always opposition
Problems associated with elections are:

Campaign financing. (lawyers contribute, individuals can contribute $500, Candidates have to have a commission solicit
funds, max allowable raised is $125,000)

Uninformed electorate.

Impact on judicial independence (reliant on elections judges are aware that unpopular decisions will hurt them at the ballot, if
the media picks up on an issue that they ruled on they will be in trouble, try to stress the rule of law but, “Intelligent dialogue,
unfortunately, is not always available during the campaign session.”

Personal toll.
On a positive note, the elections do allow judges to become familiar with the lives of the citizens of the state – exposes them to new
perspectives.
Impartiality II

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Mechanisms ensuring independence allow for impartiality – the two go hand in hand. Litigants have a right to be judged by an
independent and impartial tribunal
This principle is applicable to judges not only while they sit on the bench, but also after they retire.
Should judges join facebook? CJ CJC isn’t against it, but they must maintain their normal decorum.
Should lawyers and judges be facebook friends?

“Judges must be and should appear to be impartial with respect to their decisions and decision making” (Ethical
Principle 6 CJC).

Usually, the issue is not actual bias, but apprehended bias.

Majority of the test appears on the appearance of impartiality.

Impartiality is a state of mind in which the adjudicator is disinterested in the outcome and is open to persuasion by
the evidence and the submissions.

Contrast: Neutrality and Impartiality?

Judges are shaped by their various experiences and perspectives.

Alby Sachs: “we are not made in a sausage factory”. Also the door into each judge’s is unique signifying that getting to
each judge requires different access.

We can’t expect them to be “neutral ciphers”
o A judge cannot be a table rase. They are people, not computers. It is delusional to think otherwise.
o Remember Satamayor statement: I bring the Latino, female perspective.

There was an uproar over this.

Although she may not be neutral, this does not mean that she is impartial.
o Judges cannot discount their life experiences.

In practice, there is a push for a more diverse judiciary.
o Judiciary should represent Canada’s citizenry
o If we do not want this, we should just continue appointing old white men!
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Greg Koenderman – JICP – Winter 2011
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
o We need people from different backgrounds, sexes, races, etc.
“True impartially does not require that the judge have no sympathies or opinions; it requires that the judge
nevertheless be free to entertain and act upon different points of view with an open mind”.
What is the remedy when the judge is not impartial?

Ask the judge to recuse himself or himself

Motion is made to the judge

CCP – art. 234 (Recusation)
o Certain set situations in which judges will seen to be not impartial (bias)
o Catch all – para. 10
Test of Impartiality

What would an informed person, viewing the matter realistically and practically – and having thought the matter
through – conclude? Would the person think that it is more likely than not that the judge, consciously or
unconsciously, did not decide fairly?

“Reasonable person” test – has to be informed.

The presumption in favor of impartiality is very high (RDS)  we presume that judges are impartial.
Application of the test
Jukier groups case in 3 categories:
1)
“Typical” conflict situations
o Art. 234 CCP (para 1-9) – *know this article well* – lays out 9 particular situations and one catch all where a
judge is impartial.
o Question that arises is how far does this category extend?
o Wewaykum

Judge cannot sit on case where he was once council for one of the parties, but things are not always
clear.

Allegation was that Binnie had 15 years ago, when he was Associated Deputy Minister of Justice, been
council for Crown in all matters dealing with aboriginal issues. This particular issue arose when he was
in this position.

Binnie didn’t remember parties! He was not lead council in the case, he was overseeing thousands of
cases.

SCC: Binnie is not required to recuse himself.
o Whightman

There are over 40 parties to this case

Judge cannot be a judge in a case if her family members are the lawyers.

Judge’s kids worked in junior level positions at Stikeman Elliot, who is not representing one of the major
parties, but one of the interveners. Whightman was a test case for many other cases.

What would have happened if kids were senior partners. As associates they do not have a financial
interest in the decision, they are paid by salary, not distribution of profits.

Thousands of days of testimony, 12 years at trial!

CoA upheld judge’s decision not to recuse herself  practical considerations (if judge steps down,
appointing a new judge would mean starting over)

CoA pitting 2 fundamental values against themselves  efficiency vs. impartiality

CoA also knew not all judges could handle such a complex commercial case.

Should these policy considerations be taken into account?
2)
Issue Conflict - Judge has an interest in the subject matter of the case
o Not necessarily a relationship that causes there to be a conflict of interest, but rather, judge may possesses
interest in the subject matter or certain qualities or is involved in a organization which leads to apprehension of
bias
o Pinochet case in UK

Lord Hoffman was director and chairperson of a charity closely allied with UK charitable arm of Amnesty
International. It was held that he needed to step down, because this was too close for Amnesty
International was an intervener in the Pinochet case.

(this is why Canadian judges do not sit on board, work for charities, or do anything to jeopardize their
impartiality
o Same-sex marriage case an Justicie McMurtry

CoA Ontario rule in favor of same sex marriage.

After decision rendered, some discovered that C.J. McMurtry had gay daughter

He therefore should not have sat in on case

Impact of Internet – easier to know things about judges.
o Scottish case: Palestinian refugee seeking asylum before a Jewish judge

She was denied political asylum 34
Greg Koenderman – JICP – Winter 2011

o
o
3)
She then googled the judge  Jewish, member of Jewish association of lawyers, published article very
critical to Palestine, etc.

Judge did not need to recuse herself.
Should we bend impartiality when dealing with important issues?
What does number of judge influences.

To what extent was it relevant that in Wewaykum, Binnie was 1 judge of 9 in a unanimous court? This
was explicit in Wewaykum and affected the outcome. However, theoretically, this should not be an issue.
Lack of impartiality should not necessarily be linked to actual decision of bias.

McMurtry is one of 3 judges.
Statements made on the bench or outside the courtroom
o RDS v. the Queen

TJ takes judicial notice that police are harder on black people than white people.

6 to 3 decision (or 4-2-3)

2 interesting majorities

Split of majority – whether contextualized judging is acceptable.

Cory (w Iacobicci): no bias

L’Heureux—Dube (Laforest, Gonthier, McLachlin): We should encourage contextual judgments
- furthermore, a conscious contextual inquiry is an accepted step (para 42). Judge is allowed to
take judicial notice of social realities as member of community.

Major (dissenting with Lamer and Sopinka): must base findings on evidence present before
judge.

Does it matter that it was said? Would it rather never have been written? If she had not said it, it would
be like Jewish Scottish case.

Bruker v. Marcovitz – majority written by Abella (Jewish woman) – should court enforce promise from
husband to wife? One would think that Abella would sympathize with wife. However, both majority and
minority were women. So at what point can we discount judges? How far can we take this?

The correctness of the decision does not insulate a judge from a claim of impartiality.
o Justice Sotomayor (US Supreme Court)

“I would hope that a Latina woman with the richness of her experience would more often than not reach
a better conclusion than a white male who hasn’t lived that life”
o Judge Ruffo

Judge was pro kids rights – clear bias (it’s like being pro-peace – a wonderful bias).

Provincial court judge – Tribunal de la jeunesse.

Take things too far and lost job

However, was a little too outspoken – gave interviews, went on TV, openly criticized laws and
procedures, spoke about cases publicly, without names, etc.

Complaints about her over 10 years

SCC agrees with CoA that she should be dismissed
Addition al Factors/Difficulties
Who decides whether a judge is not impartial

Judges themselves!

Who watches the watchmen? You can’t win!

Canada – Canadian Judicial Council made up of CJ across the country

Quebec – Minister asks CoA to judge (so again, judges)

Either way, it is the judiciary who judges their own impartiality!
What can you do if judge refuses to recuse himself? What are the remedies for a litigant?

Appellate oversight of refusal
o Whiteman – appealed
o McMurtry – Chief Justice of the ON CoA was alleged to not be impartial.
o Wewayakum: Binnie recused himself from determination of bias
o BUT no law in Canada that should step down on decision when there are other judges: Arseneault-Caméron v.
PEI (1993) (Bastarache wrote reasons as to why he should not step down)

S.O.S. Save Our St Clair Inc . v. City of Toronto (2005)
o Issue: Should there be a streetcar going up St. Clair avenue in Toronto?
o Divisional court (middle court): 3 judges of superior court sitting on Appeal in Ontario
o Matlow  On previous project, he had acted as president of a lobby group against the City.
o Does this raise reasonable apprehension of bias?
o He refused to recuse himself
o The other judges disagreed with Matlow’s decision so they stepped down from the case, forcing its reassignment.
35
Greg Koenderman – JICP – Winter 2011

Wewayakum – Should it be the same test, as the decision was already rendered?
What if the decision is already rendered?

Dangerous – if you have a suspicion of bias, could wait for decision and if it is not in your favour, then take motion.

Should not be able to play both sides against the middle

Very complicated – should we be harsher to a person who takes motion after the fact, or should the test be the same?

You can make a motion to vacate the decision…but why was the question not asked/motion made during the trial?
o The court is going to want to know why the party making this motion did not come forward sooner?
CML - Wewayakum Indian Band v. Canada [2003] SCC, P. 500; Reasonable Apprehension of Bias test for judge to
recuse
Facts
Issue
Holding
Reasons
CJ
In 1985, Campbell River Band and Cape Mudge Band instituted legal proceedings against the Crown in relationship
with rights on certain reserves in BC. In 2002, for reasons written by Binnie J., the SCC unanimously dismissed the
appeal of the bands. In 1982-1986 Mr. Binnie was Associate Deputy Minister of Justice in charge of all litigation
involving the government of Canada. After the SCC decision in 2002, the bands’ counsel found some information
under the Access to Information Act proving that B. had received some information concerning the bands’ claim and
that he had attended a meeting where the claim was discussed. Binnie J. claims that in 2002 he no longer recalled at
all his involvement in such a case; as associate Deputy Minister he was involved in thousands of cases. The bands
claim that Binnie’s prior involvement in the case gives rise to a reasonable apprehension of bias.
Was there reasonable apprehension of bias in this case? Even if there was, should the unanimous judgment of
the court be completely undermined?
NO. No.
The importance of the principle of impartiality:

Essential principle, rooting the public confidence in our legal system.

Key to our judicial process, fundamental qualification of a judge and the core attribute of the judiciary.

Notion: requirement of the judge to approach the case to be adjudicated with an open mind, without bias or
prejudice

Bias or prejudice = predisposition of the judge towards one side or another or a particular result; predisposition to
decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction.

Impartiality must be presumed and the presumption of impartiality carries a considerable weight.

Standard for disqualification: the reasonable apprehension of bias: what would an informed person, viewing
the matter realistically and practically- and having thought the matter through – conclude?
Reasonable apprehension of bias and Actual Bias:

Actual bias is a subjective issue. Reasonable apprehension is an objective one.

Most arguments for disqualification typically start by acknowledging that there was no actual bias. This means
either one of the three following possibilities (justifications for the objective standard of the reasonable
apprehension):
1. the reasonable apprehension of bias can be seen as a surrogate for actual bias: a lesser burden of proof is
demanded
2. the judge was acting in good faith, but was unconsciously biased
3. the relevant inquiry in cases of disqualification is not whether there actually was bias, but whether a reasonable
person properly informed would apprehend that there was. The reasonable apprehension is not just an
evidentiary device, but the manifestation of a broader preoccupation about the image of justice.

Justification number 3 for the objective standard of the reasonable apprehension of bias is the most demanding
on the judicial system: it means that a decision-maker could be completely impartial in circumstance which create
a reasonable apprehension of bias and this would require disqualification.
The Standard of the Reasonable Apprehension of Bias:

Test: what would an informed person, viewing the matter realistically and practically – and having thought the
matter through – conclude? Would the person think that it is more likely than not that the judge, consciously or
unconsciously, did not decide fairly?
Precisions:

The apprehension of bias must rest on serious grounds, in light of the strong presumption of judicial impartiality.

The inquiry is highly fact-specific. The context and the particular circumstances have the biggest importance.

The fact that a judge would have recused himself ex ante cannot be taken to be determinative of a reasonable
apprehension of bias ex post.

Time is a significant factor in the assessment: the grater the passage of time between the event relied on as
showing a danger of bias and the case in which the objection is raised, the weaker the objection will be.
Application of principles to the case:

B’s past status as Deputy minister is insufficient to justify by itself the apprehension.

B plaid no active role in the dispute after the case was filed (his implication was prior to the filing of the case and
mostly at the level of the negotiations between the Crown and the band)
36
Greg Koenderman – JICP – Winter 2011




Ratio
B had responsibility in thousands of files at the time.
15 years have passed
His lack of recollection of the case is relevant, yet not decisive.
Thus, no reasonable apprehension of bias is established.
Relationship between the disqualification of one judge and the decision of the entire court: obiter dictum:

Each member of the court prepares independently for the hearing of the appeals and expresses his opinion
independently.

The court decides which one of the judges will draft the reasons

Draft reasons are prepared and circulated. They are the product of a collegial process of revision of successive
drafts.

The reasons reflect the individual views of each and every judge and the collective effort and opinion of them all.

No reasonable person could claim that in a case of unanimous decision the tainted judge have determined a bias
in all the other eight judges.
Standard for disqualification: the reasonable apprehension of bias: what would an informed person, viewing the
matter realistically and practically- and having thought the matter through – conclude?
CVL- Whightman v. Widdrington (2007 QC CA) P. 202; 12 year litigation, apprehension of judge bias (rejected)
Facts
Issue
Holding
Reasons
Background

Castor Holdings (“Castor”) was a Montreal-based real estate investment company that went bankrupt on July 9,
1992. The company’s creditors filed more than 40 lawsuits against Castor’s accountants, Coopers & Lybrand
(“Coopers”), which audited Castor from 1978 to 1991.

All 40 suits relied on the same legal issue.

On February 20, 1998 Justice Carrière decided to join all Castor cases based on the fact that they all shared the
same legal issues and facts.

At trial expert auditing testimony took place over 5 years.

In October 2006, Justice Carrière stepped down from the Widdrington trial due to serious medical issues.

Pursuant to Art. 464 of the CCP, the Chief Justice of the Superior Court decided that the case would be re-tried in
front of a new justice with a deadline to complete pleadings before 2010.
Plaintiff:

On September 12, 2007 Justice St-Pierre informed the parties that she was previously a partner in the corporate
law group for Desjardins Ducharme LLP, which had represented a Castor director. She also stated that two of her
children worked for Stikeman Elliott LLP (one as a corporate lawyer and the other as student/stagiaire), which
represented the bankruptcy trustee, RSM Richter, as well as the pensioners in the Chrysler Canada case. Neither
Desjardins nor Stikeman were directly involved in the Widdrington litigation, but rather the joined cases.

On September 27, 2007 the defendants formally requested that Justice St-Pierre recuse herself from the case
because of a perceived conflict of interest due to her children’s employment at Stikeman.

On October 9, 2007 Justice St-Pierre refused this request. The defendants’ appealed to the Court of Appeal.
Defendant:

Her children’s employment at Stikeman is based on their own performance and not the outcome of the case, which
would have little impact on the financial results of the firm. Furthermore, neither of her children worked on the
Chrysler case.

She argued that there is no reasonable concern regarding her impartiality.
Is Justice St-Pierre required to recuse herself b/c her children’s employment at Stikeman, involved in a joined
case?
No. There is no reasonable doubt as to Justice St-Pierre’s impartiality.
Applicable laws:
CCP Art. 234: A judge may be recused in particular: If the judge is the spouse of or related or allied within the degree of
cousin-german inclusively to one of the parties (…) if there is reasonable cause to fear that the judge will not be
impartial.
CCP Art. 238: A recusation motion is disposed of by the judge seized of the case. The judge's decision is subject to
appeal in accordance with the rules applicable to appeals from an interlocutory judgment.
CDN Charter Art. 7: Everyone has the right to life, liberty and security of the person and the right not to be deprived
thereof except in accordance with the principles of fundamental justice.
QC Charter Art. 23: Every person has a right to a full and equal, public and fair hearing by an independent and impartial
tribunal, for the determination of his rights and obligations or of the merits of any charge brought against him.
Reasonable Doubt of Impartiality:

The judicial system requires that it be carried out impartially and be seen to be impartial.

The impartiality of judges is presumed. The burden of proof is on the plaintiff to demonstrate a lack of
impartiality. Ultimately such proof must be serious since such accusations not only impact the reputation of the
judge, but the administration of justice a whole.

SCC guidelines in Wewaykum Indian Band v. Canada that the recusal of judges based on the following 7 criteria:
(1) a judge’s impartiality is presumed;
(2) a party arguing for disqualification must establish that the circumstances justify a finding that the judge must be
37
Greg Koenderman – JICP – Winter 2011
disqualified;
(3) the criterion of disqualification is the reasonable apprehension of bias;
(4) the question is what would an informed, reasonable and right-minded person, viewing the matter realistically and
practically, and having thought the matter through, conclude;
(5) the test for disqualification is not satisfied unless it is proved that the informed, reasonable and right-minded person
would think that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly;
(6) the test requires demonstration of serious grounds on which to base the apprehension;
(7) each case must be examined contextually and the inquiry is fact-specific

Finally, it is the duty of the judge to hear cases that come before him or her and a party should not be able to
unilaterally choose not to have a matter heard by a particular judge simply because that party would prefer that
another judge hear the case.
Ratio
Parenthood as a Cause for Recusal:

Paragraph 9 of Art. 234 CCP “If the judge is the spouse of or is related or allied to the attorney or counsel or to the
partner of any of them, either in the direct line, or in the collateral line in the second degree” demonstrates that the
legislature intended on capturing the judge’s relationship with either the lawyers actively involved in the litigation or
their partners, since partners have a reputational and financial stake in the outcome of the trial.

Justice St-Pierre’s children are employees of Stikeman Elliott, not partners. Consequently the only relevant
paragraph in Art. 234 is paragraph 10’s general statement regarding a “reasonable doubt of impartiality”.

The court noted English and American precedent that distinguished between employees (associates) and partners.

Court noted the significance of the case is limited for Stikeman, cannot be treated in the same way as a small firm.

Finally, while the outcomes are linked, Justice St-Pierre will not directly render judgment on the Chrysler Canada
case.

A judge cannot be related in the first-degree with a lawyer directly involved in the trial or a partner of that
lawyer.

Conflicts of interest must be judged on a contextual basis. Large, multi-office firms cannot be seen to
create the same conflicts as small law firms.

N.B. It seems to me that, given the lengthy recital of facts and the discussion of costs and economic factors, the
enormous length of the trial, the costs involved, both to the parties and to the Quebec legal system, helped to
convince the Court of Appeal that the case needed to proceed without another disruption. (efficiency argument)
CML - R.D.S. v. The Queen, SCC, 1997, p. 217; Impartiality; test for apprehension of bias; judge can rely on
experience.
Facts
Issue
Holding
Reasons





A white police officer arrested a black 15 year old who had allegedly interfered with the arrest of another youth.
The accused was charged with, inter alia, unlawfully assaulting a police officer.
The police officer and accused were the only witnesses at trial and their accounts varied widely.
The trial judge weighed the evidence and determined that the accused should be acquitted.
In the course of her (oral) reasons, she took judicial notice that “police officers in Halifax had been known to
mislead the court in the past, that they had been known to overreact particularly with non-white groups and that this
could indicate a questionable state of mind (although these comments were not directed towards the particular
officer testifying before the court.
Was this judicial notice inappropriate? Did it lead to a reasonable apprehension of bias?
No, it was not inappropriate (although it was “close to the line”). No, there was no reasonable apprehension of bias.
Cory J (Majority)

Requirement of neutrality does not discount the judge’s life experiences  true impartiality does not mean that
judge must have no opinion, but rather that he have an open mind.

Expert evidence in reference to social conditions may be required for law to evolve in a way that reflects social
realities.

Fine line between assessing credibility of witnesses based on common sense and experience, versus assessing
credibility based on generalizations.

Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and
reasonable observer. [218]

The test is: what would an informed person, viewing the matter realistically and practically and having
thought the matter through, conclude.

Probability of bias must be demonstrated – mere suspicion is not enough (threshold is high)

Judges should avoid making comments based on generalizations when assessing a witness’ credibility – however,
in limited circumstances, these comments are appropriate

Generalization must be justified by evidence.

Comments in this case were not linked to evidence and come close to the line. However, they must be understood
in the context of the whole proceeding – a reasonable observer test would not find bias.
L’Heureux-Dube J (Concurring)

Test for reasonable apprehension of bias  What would an informed person, viewing the matter
realistically and practically – and having thought the matter through – conclude? Grounds for apprehension
must however be substantial. There is as strong presumption of impartiality in favour of judges.
38
Greg Koenderman – JICP – Winter 2011





Ratio
Com’t
True impartiality does not require judges to be opinion-less, but rather to have an open mind.
Judges can never be neutral in the true sense of the word and their differing experiences appropriately assist in
their decision-making process so long as those experiences are relevant, are not based on inappropriate
stereotypes, and do not prevent a faire trial based on facts in evidence.
Judicial inquiry into factual, social and psychological context provides required background for the interpretation
and application of laws. This includes a judge’s personal experience.
Awareness of the context is consistent with judicial impartiality  is a prerequisite to impartiality.
Comments pass reasonable apprehension of bias test: they were completely appropriate and reflected appropriate
recognition of context.
Major J (Dissent)

No evidence was adduced to show that this police officer was racist or that racism motivated his actions (or that he
lied).

Life experience can be important in weighing evidence and determining credibility; however, it cannot help reach
conclusions when there is no evidence  “Life experience is not a substitute for evidence.

Adversarial system does not permit judges to become independent investigators to seek out facts.

Stereotyping police officers is not legitimate

The absence of evidence to support the judgment is an irreparable defect.

Experience of judge plays role in evaluating evidence.

Test for reasonable apprehension of bias  What would an informed person, viewing the matter
realistically and practically – and having thought the matter through – conclude?

Interesting that we’re looking for appearance of bias, not actual bias.
JUDICIAL ETHICS AND JUDICIAL ACCOUNTABILITY
Class discussion: Is there a difference between making remarks about government policy during decision, or at a lawyer’s
conference?

Problem with judge using the bench as a platform for making a political view?

How different can you really act when you are not wearing your judge’s hat?
Who (should) holds the judge accountable? (Who watches the watchmen?)
What is the Standard?
How do we resolve tension between accountability and Independence

Political accountability?
o Problem: do we want the very government who goes before these judges to be able to remove them?
o Not independent and impartial enough when government is a party
o Government most popular litigant!
o At the end of the day in Canada, this is the ultimate check on Judges.

Peers &/or Independent Commission?
o
Act as a buffer b/w judiciary and legislature.
o Largely dished out by fellow judges
o
Who would form this commission? Former judges, so back to the same point of judges judging judges.
o
Canadian Judicial Council: made up of Chief Justices of Provinces, and SCC as chair.
Public accountability?
o Open court principle – Media.
o Election of Judges? Rejected by most Western Democracies.
o Canadian judges know they are being watched by the public
o If you take that one step further  most people complain b/c they don’t like what the judge gave them (Not
appropriate measure!)
o Allow people the right to complain.


Jukier: We have a dual system
o First judged by fellow judges (peers)

When you take a complaint to Canadian Judicial Council  made up of all Chief Justices
o Ultimate power to remove is political

Act of Settlement – new principle, instead of judges sitting at pleasure of king, given tenure

Principle we have inherited

Is this the best system?
o Posner: maybe judges should have terms?
o Election of judges in the USA tied to the politization of the courts.
39
Greg Koenderman – JICP – Winter 2011
o

Ads on Youtube – accountability to the public
Different procedure in each province
o 76 in Therrien gives snapshot
o QC – Conseil de la magistrature
Federal: Canadian Judicial Council

Chaired by Chief Justice of Canada

Consists of all chief justices

“To promote efficiency and uniformity, and to improve quality…”

Not merely a disciplinary committee for judges
o Educational component
o Puts out reports concerning important aspects of judiciary (Ie: “Self-represented litigants”)
Federal Solutions

Removal of judge (s.99 of Constitution)
o Very rare
o Therrien, Ruffo

Can complaints be anonymous? Yes – but will only be investigated to extent possible
o If you don’t give your name, how is CJC supposed to know what case?
o Sometimes, anonymous is fine (Example: Chief Justice giving Morgentaler prize)

Complaint Procedure (easy – accessible to public)
o 200ish a year
o Must be in writing
o Mostly from litigants who are not happy with what happened in court
o Ambit is not about decision, but behaviour of judge

Hard for public to distinguish

Half of the complaints on basis of decisions
o
THREE STEPS:
1) One member reviews complaint

Either complaint dismissed immediately or everything is resolved after CJC communicates with judge
(apologies for saying inappropriate things on the bench, etc.)

99 % of the complaints are solved at this stage.
2) Panel reviews the complaint

5 members of the CJC review the judge’s conduct

More disciplinary measures may be taken: reprimands, request to go to counselling, etc.

Also stage where decided whether behaviour is serious enough to consider warranting removal…
3)
Inquiry/committee

Two ways case can get to this point:
1. Complaint works its way up through previous steps
2. Short circuit process if AG or Minister of Justice recommends that judges should be up for
removal (see Cosgrove).
Cosgrove (p. 295) Held: recommended removal of Sup Crt Justice Cosgrove

Woman from Barbados accused of murdering lover while on vacation in Canada – gruesome

J. Cosgrove allegedly disrupted the Crown’s presentation of evidence.

Cosgrove found that Crown and police had committed 150 Charter violations, so he stayed the murder charge
o But isn’t this simply a legal mistake? Which judges are allowed to make legal mistakes

CJC investigated - found that proceedings were “circus-like”, charter violations unfounded, biased, not impartial to Crown’s
presentation.
o Allegations of extreme incompetence on legal matters
o Just being unfounded on Charter violations is not a judicial wrong, b/c you can be overturned
o It is the extremity of his mistakes! 150 charges!

Took claim that s. 63 of the Judge’s Act (under which he was being investigated) infringed Constitution

Won at trial; overturned at CoA

Moved to different tactic of offering apology – no go

Inquiry Committee of CJC recommended to Parliament his removal

He resigned before removal
Provincial Solutions: Quebec?

Much overlap between federal and provincial solutions.
40
Greg Koenderman – JICP – Winter 2011



Magistrature recommends to Minister of Justice to file a motion to CoA to review whether judge should be removed or not
So you have a provincial court judge, recommended by provincial oversight body, to go to a Court of Appeal to review
So judicial inquiry in courtroom! (unlike federal judicial inquiry as in investigated by CJC) (Cosgrove only went to court, b/c he
took it to the court).
o Are these systems different at the end of the day? Ultimately federal and quebec judges are being judged by
peers.
o Is the CJC truly an independent body?

See Ruffo, Therrien
Remember: number of different avenues of redress

Appeal

Motion to vacate

Motion to recuse

Complaint to CJC (won’t affect your judgement)
M. Cappelletti, “Who Watches the Watchmen?” P. 243 
(Judicial) responsibility is a value-laden concept; means both power and accountability for use of power; “power” itself signifies





not only legal authority but legal duty; question depends on power of the particular judge
No necessary correlation between growth of power and growth of accountability – but democracy requires it (“checks and
balances”)
Two types of expansion of judicial power  importance of responsibility issues
o Administrative-procedural: trend towards taking power to direct the case away from parties
o Substantive: welfare state; conflicting or vague laws; interconnectedness of people
Obstacles to accountability
o Legacy of view that the state can do no wrong, though has been moderated in recent years
o Legacy of state irresponsibility for “wrong” judicial decisions (res judicata creates the law, so it cannot be against
the law); judicial review
o Tension between accountability and independence

More immunity doesn’t necessarily mean more independence; must look at immunity vis-à-vis parties vs.
accountability vis-à-vis government

Independence isn’t a value in itself but a means to impartiality; both must be seen in their wider civillibertarian context

“the privilege of judicial irresponsibility cannot be the price which the collectivity is asked to pay
for judicial independence”
Typology of judicial independence
o Political and constitutional accountability: account given to political bodies for political rather than legal violations

CML countries use impeachment rarely, but it has great significance; can be a counterweight to
immunity towards the parties; long-term trend away from political and toward legal controls

CVL countries have traditionally more governmental controls

Constitutional controls over judicial accountability/independence are harder to mobilize
o Societal or public accountability: to determined bodies/groups

Typical illustration is USSR: obligation to report to electorate or other bodies; reports can justify recall
(so overlap between social and political responsibility) – but still, recall was rare

Recall of judges is also rare in other countries; overlaps with non-reelection

Press and civil society groups can apply informal pressures – but depends on awareness and free
speech

(discusses Sunday Times case, in which freedom of expression for the media was prioritized)
o Legal (vicarious) liability of the state, and “recovery” liability of the judge: state liability to provide indemnity or
reparation to victim of judicial error

Maybe: victim has to sue state instead of judge, but state can then sue the judge

Maybe: vicarious state liability concurrent with judge’s personal liability

Maybe: total immunity of judges (more in CVL)

Where civil liability can be found (more in CML), rigorous substantive limitations, hard-to-overcome
procedural limitations (e.g., consent from government) to limit its scope

Separate from penal liability for crimes committed through abuse of office (but this is rare, and should be
restricted in scope)

Separate from disciplinary liability (complements civil liability): must strike balance between political and
judicial control; interesting ideas to include laypeople in the process
Models of judicial responsibility
o Repressive/dependency model

Political accountability (repression potential, though often dormant) and disciplinary liability

Western states oscillate between equality of judges and people (when civil liability works) and
separateness (when disciplinary liability works)

Author favours a mix of civil and disciplinary liability, with limited scope to bring actions in tort
o Corporative-autonomous/separateness model

Judiciary as totally insulated from government and society

Can still be dangerous
41
Greg Koenderman – JICP – Winter 2011
Proposal: responsive/consumer-oriented model: combining political and legal responsibility without subordinating judges to the
politicians; long-term focus on independence and accountability; reflects politicisation and socialisation of judiciary; responsibility as
a function of the consumers (citizens), not prestige/independence
CVL - Therrien (Re), SCC, 2001, P. 270 – Removal of Judge; Criminal record is relevant consideration for judicial
integrity
Facts
Issue
Holding
Reasons
Gonthier
During the 1970 October crisis, Therrien was a law student and a minor. He lived with his sister, who helped hide some
of the FLQ members responsible for kidnapping Pierre Lapointe in their apt. Therrien was sentenced to a year in prison
for his involvement. Years later, he received a pardon. He had an exemplary career as legal aid lawyer. He applied for
an appointment to the court and twice, and said yes to the question of whether he had a criminal record. He was denied
the appointment. The third time he applied, he said no, reasoning that he was pardoned. He got the job. A few weeks
later, opposition MNAs found out, and it was a big issue in the National Assembly – he was dismissed.
Is a criminal record a relevant consideration for judicial integrity?
YES
Procedure in question: the removal of the court of Quebec judges: s. 95 Courts of Justice Act:

The Conseil de la Magistrature receives and examines the complaint. After examination, it either reprimands the
judge or recommends that the Minister of justice and AG to file a motion to the CoA.

The Court of Appeal verifies the facts and the law and makes a report that it sends to the Minister.

The Minister of Justice cannot remove a judge without the report of the Court of Appeal.
Jurisdictional issues:
(a)The Nature of the report of the Court of Appeal:
The report of the CA has the nature of a decision (final decision, not a mere advisory opinion). Reasons:

The report is an essential condition of the proceeding that leads to the removal.

The report of the CA is different from the one of the CM: it is not a report on inquiry, but a report after inquiry: no
restrictions in the way it should be done.

Principle of judicial independence: the fact that the report of the CA is judicial and is in the nature of a decision is
one of the conditions to insure the constitutionality of the process of removal (under s.11 Charter).
Principle: Two conditions for removal respecting the principle of judicial independence:
1) the removal must be for cause, which must be specific and be related to judge’s capacity to perform his judicial
functions.
2) There must be judicial inquiry into whether the cause exists, at which the judge in cause must be afforded an
opportunity to be heard.
(b) Jurisdiction of the Superior Court:
Even though the Superior Court is the court of general jurisdiction, the jurisdiction over the issue of judicial behavior has
been explicitly given to the CoA and this jurisdiction should be respected.
(c) Jurisdiction of the Conseil de le Magistrature over acts done before becoming a judge:

Whether the act in cause is prior to the appointment as a judge or not is irrelevant: the CM must be able to examine
the past conduct of the judge in order to determine whether it may reasonably determine public confidence in the
incumbent of the office.

In the interest of judicial independence, it is important that the discipline be dealt with primarily by peers.
Constitutional issues:
The principle of judicial independence: “individual and institutional impartiality and independence are key elements
in the function of the judge; they are inherent in the very definition of a the judge
(a) The requirement for an address of the legislature in the removal of the judges:
There are different ways in which independence can be secured and there is no need to constitutionalize them. It is
enough that the process insures the independence. And the presence of the Court of Appeal in the process does this.
(b) The binding nature of the report of the Court of Appeal:
The Executive is bound by a report of the Court of Appeal exonerating the judge.
Trend: This is a normal finding in light of the fact that all the provinces have taken action in order to insure that the
provincial court judges are secure against discretionary interference of the executive, in that the executive remains
bound by the finding of the judicial inquiry body exonerating a judge.
THE ROLE OF THE JUDGE:
The judicial function is absolutely unique: important powers and responsibilities:

Arbiter which settles disputes and adjudicates rights

Balance of constitutional powers

Defender of human rights and individual freedoms and guardian of the values embodied in the Charter.

Arbiter which settles disputes and adjudicates rights
42
Greg Koenderman – JICP – Winter 2011


Ratio
Notes
Balance of constitutional powers
Defender of human rights and individual freedoms and guardian of the values embodied in the Charter.
Symbolic role: judges play a fundamental role in the eyes of the external observer of the judicial system: have to
embody the ideas of truth and justice  the personal qualities, conduct and image of the judge affect those of the
judicial system as a whole and the confidence that the public places in it. Maintaining this trust is an important aspect of
preserving the rule of law.
[Hence the connection between the personal qualities of the judge and the maintenance of the rules of law in the public
interest. The requirements as to the personality of the judge are not limited to not committing illegal acts. A higher set of
ethical rules are imposed on him because of the symbolic role he plays as a representative of the Canadian justice
system]
The legal question in this case was whether judges benefit from the protection of Art. 18.2 of the Quebec HR Charter
which prevents discrimination in employment based on a criminal record where a pardon has been granted. The court
said no – because being a judge is not ‘employment’ – it is a ‘function’ and it has a unique place in the
constitutional order…

What is the standard to which we hold judges  Superhuman!

Judicial function is absolutely unique

Conduct and image affects those of the judicial system as a whole
o Cosgrove: “public confidence irrevocably lost”
o Both CJC and SCC talk about public confidence as reason for this very high standard

Not reasonableness, but impeachable conduct
o Appointment to judiciary = certain loss of freedom

What was wrong about what he did?
o Is it that he had a criminal record, or that he failed to disclose his record?

He had been pardoned…
o He went wrong in not disclosing – is his pardon an excuse?

He can’t win  he had disclosed it, and was refused

Get over it, cannot be a judge

How stupid is the committee?
o Committee did not do proper homework
o Should have investigated BEFORE appointing him

Leads one to assume that if you were once involved in a criminal activity…You can never be a judge (a pardon
does not wipe something away for a judge)

How would we feel about conviction of a drug charge?

How long are you responsible for that? This case says forever…But we have a system that should be based on
rehabilitation

No allegations of improper behaviour on the bench

Then again, we have to remember that public confidence is important!

We are sanctioning him for lying/not disclosing the facts of his past.

Are we not enforcing these Superhuman standards, or does the system work?
Canadian Judicial Council (www.cjc-ccm.gc.ca/) : complaints procedure (it is applicable to all federally appointed judges)
BASIC PRINCIPLES OF (PRE-TRIAL) CIVIL PROCEDURE
Overview of the Pre-Trial Phase in Quebec and Ontario
Overarching themes
(big picture themes are driving the micro legislation)

Judge is case manager  Judge is too passive – should be case manager (cf Lord Woolf)

Facilitate flow of information pre-trial (exhibits, lists of witnesses etc)  Rules force parties to share info, to exchange,
etc. Only thing left for trial is lawyers to make legal arguments, and witness to give testimony. All written documents and expert
testimony must be exchanged in advance. There are no surprises in court.

Encourage early settlement  The more you must share, the more you discover, the better the chances are that parties will
settle (cf Lord Woolf). Ontario requires mandatory mediation. QC uses carrots and allows free judicial mediation.

Encourage simplification of dispute  Helps de-clog the court system. QC does not have a summary judgments, but ON
does offer a summary judgment on clear issues that can easily be adjudicated without witnesses.
o QC: 180 day rule (one year in family)
o Sanctions lawyers passively (Arguin v Nault) – litigant loses, but has recourse to sue her lawyer in malpractice.
Quebec Pre-trial Process
In 2003, civil procedure was completely overhauled in Quebec. Quebec has tried to implement these large themes of procedural
reform through these nit-picky rules
43
Greg Koenderman – JICP – Winter 2011
THE PRE-TRIAL ORDER
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
MOTION TO INSTITUTE PROCEEDINGS (ARTS. 111, 119)
APPEARANCE (ART. 149)
NEGOTIATION OF AN AGREEMENT AS TO THE CONDUCT OF PROCEEDINGS (ART. 151.1)
PRESENTATION OF THE ACTION (ARTS. 151.4, 151.6)
PRELIMINARY EXCEPTIONS (ART. 151.5)
FIRST EXAMINATION ON DISCOVERY (ARTS 396.1 ET SEQ., 397)
DEFENCE (ART. 172)
EXAMINATION ON DISCOVERY (ART. 398)
ANSWER (ART. 182)
INSCRIPTION FOR PROOF AND HEARING (ARTS. 274. 274.1, 274.2)
PRE-TRIAL CONFERENCE (ART. 279)
ANYTIME
a. Settlement conference
b. Amendments to proceedings
c. Safeguard measures
1.
Motion to institute proceedings (CCP 111, 119)
o Declare case, file it in court, give copy to bailiff, bailiff serves it (arts 120 – 146.3), Cdn strives for personal service.
Prescription is interrupted by the moment of service, and the 180 days starts running from the moment of service.
o Remember Quebec – no time limit as to when you must serve defendant, 180 days only start after service. However,
even though there is no time limit after which the motion to institute proceedings becomes stale, the CCQ says that if
you do not serve motion within 60 days, prescription will not be interrupted – 2892 CCQ). Notice to the defendant to
appear within a time limit (usually 10 days) (CCP 119)
o Use to be called a writ (specific to certain actions)
o Not actually a motion, just a proceeding that starts the ball rolling (motion is a request to the court)
o Described in CCP 111

Written statement

Contains a concise statement of the facts and the conclusions sought  logical walk down the path

(Fact pleading vs. notice pleading)

Preceded by a style of cause

No affidavit is necessary

Includes warning that if defendant does not appear, default judgment may be rendered against him.
o Disclosure/announcement (CCP 119 + 331.2)

During Motion to institute proceeding – plaintiff must announce information he intends to use (just an
announcement that they exist)
o
Art. 192

If defendant fails to appear a default may be rendered against the defendant. (Beals v Sedana)

Always request an extension in advance, it is much easier to get an extension than request after the fact.
(Arguin)
2.
Appearance (CCP 149)
o Not a physical appearance, but rather a written pleading filed by defendant in court and submitted to other party.
o Tells court and other party that defendant is contesting the action.
o This avoids a default judgment
3.
Negotiation of an agreement as to the conduct of proceedings (CCP 151.1)
o First reform that attempts to make judge a case manager
o Requires parties, before the date of the presentation of the action (usually 30 day), to agree to a timetable
(échéancier) for each step of the pre-trial process. See p. 307 Crsepack.
o Timetable must fit everything in within 180 days. (CCP 110.1 & 274.3)
o Psychologically, requiring parties to communicate and negotiate these details with their adversaries encourages
settlement.
o If parties fail to do this, the judge may step in (and parties may be worse off with a judge-imposed timetable)
4.
Presentation of the action (CCP 151.4, 151.6)
o 151.4

Take timetable and present it to the judge

Judges rubber stamp or alter it

Is this additional step counter intuitive to measures aimed at speeding up the process? Not if timetable was
well negotiated and merely needs a rubber stamp.
o 151.6

Gives judge a lot of powers as case manager.

If parties have not agreed on a timetable, judge can determine one (para. 4)

Judge can also determine how procedures may be simplified.
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Greg Koenderman – JICP – Winter 2011
5.
Preliminary Exceptions (CCP 151.5) (raised during the presentation of the action)
o Raise preliminary exceptions (wrong forum, wrong action, past prescription period, no standing, moot issue, etc.)
o At least 30 days must lapse (usually 30-45) – about 10 days to appear, about 20 days to negotiate timetable
o Timetable after this is mostly in the hands of the litigants.
6.
First Examination on Discovery (CCP 396.1 et seq., 397)
o Fishing expedition; no discovery on issues below $25,000.
o “Interrogatoire préalable”  pre questioning – like a preview of what a person will testify
o Time is set in timetable
o This is discovery by defendant of plaintiff only at this stage  Now is his chance to learn about the plaintiff’s case so
he can mount a proper defense.
o CCP 397  Without permission of the court, you can only really examine the other party (not witnesses)
o Discovery is not possible in every case  CCP 396.1 says amount claimed must be more than $25 000 (otherwise
would not be proportional).
7.
Defence (CCP 172)
o Is written
o (cf. 54.1 – at any time the defendant can move for frivolous action to be dismissed)
o Responds to paragraph of motion to institute proceedings.
o No specified time for the defendant to file a defence – it is something the parties agree to.
8.
Examination on Discovery (CCP 398)
o Plaintiff’s turn to examine the defendant, as now he knows what the defendant’s case is.
9.
Answer (CCP 182)
o Optional pleading (called “plea” in Ontario)
o Plaintiff has opportunity to address things raised in the defense
10. Inscription for proof and hearing (CCP 274. 274.1, 274.2)
o Document that must be filed by each party within 180 days. (see Crse pack p. 312)
o Tells the courts “we are reading to come before you on the merits, we are ready to set a date for trial”
o Must provide list of witnesses, days required in court, tell everything before case gets on rolls.
11. Pre-Trial Conference (CCP 279)
o Not mandatory, occurs once case is inscribed.
o Telling court what is going to take place in trial, how many days are needed, etc.
o Judge can invite lawyers to discuss ways to simplify the suit, define issues, etc.
o In inscription for proof and hearing, parties tell judge days required, witnesses called, etc. Judge can therefore call
upon parties to negotiate this and simplify case.

ANY TIME
o Amendments to proceedings (art. 199)  Not estopped from amending; Ex: change class representative
o Judicial Settlement Conference (art. 151.15)  Try to settle case before judge – this allows comprimise rather than
win/lose style of trial. See details under ADR at end.
o Injunctions/Safeguard Measures (art. 752(2))  Motions that safeguard your rights (ex: Anton Piller, Mariva)
o Art. 54.1 - designed to allow defendant to fight back against a “slap” from big corporation who claims libel against the
small-time plaintiff. Problem is art. 54.1 grew in scope.

Relatively New provision

Motion to dismiss (be defendant) and more

Extensive powers given to judges (see especially art. 54.2, 54.3 and 54.4)
DISCLOSURE

During pre-trial process, there are 3 different times when parties must disclose everything to each other
1.
2.
3.
Disclosure/announcement (CCP 119 + 331.2)

Motion to institute proceeding – plaintiff must announce information he intends to use (just an announcement
that they exist)
Communication of the exhibits (331.3)

Content itself must be disclosed.

When? Quebec – largely decided by parties in their timetable.
Production of the docs in the court records (331.7)

Must be filed into court record 15 days before inscription for proof in hearing. Cannot be used if this is not
done.
Experts

Not allowed to testify unless they have first filed report
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Greg Koenderman – JICP – Winter 2011

Defense must know substance of his opinion

180 day rule (one year in family matters)
o CCP 110.1

Preemptory time limit  delai de rigueur – it is a mandatory delay. The clock starts ticking the moment you
serve your document that starts the case. Must do everything related to pre-trial order.

This rule is the heart of the 2003 overhaul
o CCP 274.3

If a party does not adhere to the delay, he is deemed to have discontinued the action (last phrase)

Big incentive – not a carrot but a stick!
o CCP 110.1 (2)

Can take motion to extend the time if warranted by complexity of the matter or special circumstances

This motion is made about 30 days into the process (not at the very end of the 180 days!)

Promotes efficiency, moves things along…
o Sanction lawyers’ passivity (Arguin v. Nault)

Lawyer asks to extend the 180 days and court turns him down.

Case shows us that there is a new judicial culture developing – lawyers’ passivity is no longer an excuse.

What is wrong with this decision – lawyers fault leads to client’s suffering

Procedural law is supposed to be handmaiden

Punishes the client! (Beals v. Saldanha)
Do these measures really work?
You can build a beautiful procedural castled, but it is worth nothing if people do not use it.
CVL – Lanoue v. Megaarbane; p. 304; QC Sup Crt; Example of entire pre-trial process.
16 November 2006- Motion Introductive of Proceedings- filed by P (p. 304)

Introduction- “P claims damages arising from the negligence of D...”

Parties - who they are

Facts - as alleged by P, refers to documents (exhibits)

Defendant's Responsibility - explains how D was negligent, factually

Damages - Itemized list of claimed damages

Wherefore, Plaintiff Prays for Judgment of this Honourable Court - What P wants court to do

Schedule 1 (s. 119, CCP) - Attached to Motion, indicating that D must file an appearance within 10 days of service. If
appearance is filed, action will be presented in court on 21 December 2006. Discloses exhibits mentioned in Motion.
24 November 2006- Comparution (Appearance) (p. 307)

One sentence - will appear for the defendant, filed by lawyer.
18 December 2006- Timetable (Art. 151.1 C.C.P.) (p. 307)

Includes both initial Motion and Appearance on list of events (have already occurred)

Future events scheduled “on or before” certain dates, from 26 January 2007 (Examination on Discovery of Plaintiff) to 22 June
2007 (Service and declaration of Defendant's Declaration under Article 274.2 CCP).

Signed and dated by plaintiff’s lawyers, our copy in CB is NOT signed or dated by Defendant's lawyers
31 May 2007- Defense (p. 308)

Response to every paragraph in the Motion Introductive of Proceedings, admitting or challenging the facts as seen fit.

At the end, asks court to accept the defense, reject the claim of the plaintiff.
4 June 2007- Notice of Production of Expertise Report (Art. 402.1 CCP) (p. 316)

Produced by plaintiff, to the lawyers of the defendant, stating that an expertise report was produced into record at the court.

A copy of the report is attached
4 June 2007- Notice of Production of Documents (Art. 403 CCP) (p. 317)

From plaintiff’s lawyers to defendant's lawyers.

List of exhibits.

States that if defendant does not “deny the genuineness or correctness” of the documents within 10 days, the genuineness and
correctness of the documents shall be considered admitted.
30 July 2007- Answer to Plea (p. 311)

List of every paragraph of Defense, either admitting, ignoring or joining the issues.

Ends by stating that D's plea is ill-founded in fact and in law, and that P's answer is well founded in fact and in law.

Also asks court again to grant P's motion and deny D's motion
30 July 2007- Inscription for Proof and Hearing on the Merits (p. 312)

Short statement - P intends to bring before court for Proof and Hearing
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Greg Koenderman – JICP – Winter 2011
30 July 2007- Plaintiff’s Declaration of Inscription for Proof and Hearing (p. 313)

Deponent - Attorney responsible and whether P, D or other

Exhibits - Checkbox stating whether or not list of exhibits disclosed to other party is enclosed

Checkbox list of what has been forwarded to other party to date, in accordance with various CCP articles.

Trial - How long it should take (1-1/2 days)

Concise Statement of the Questions of Law and Fact in Dispute: What the party alleges that the other party disputes

Witnesses - Witnesses to be called, what they will testify about, time required for each, what language each will testify in

Expert Witnesses - Same stuff as witnesses

List of Exhibits - Documents to be used at trial
19 September 2007- Declaration de la Partie Defendresse (Art. 274.2 C.P.C.) (p. 315)

Names and addresses of attorneys of parties

Checkboxes for documents communicated to defense

Attestation that the dossier is complete and the expected duration of trial (2 days, ½ day more than P stated)

List of witnesses, and language of testimony (no timing given)

List of questions of law and fact in dispute
CVL - Arguin v. Nault (2007) QC SC, p. 318; CCP art. 110.1 strictly applied ; 180 rule enforced despite lawyers error
Facts

The plaintiff filed a claim for damages following an injury by the defendant just before the prescription period ran out
(3 yrs). This then started the clock for the 180-day limit as per art. 110.1 CCP.

This time ran out and the plaintiff finally filed more than 3 months after the 180 days.

The plaintiff claims that missing the deadline was a mistake caused by the departure of her lawyer’s secretary.
Can the plaintiff be excused for missing the 180-day limit?
Issue
No
Holding
Reasons General Remarks on 180-day limit

The rule that inscription must be done 180 days after filing is a key reform of the civil procedure system.

It is up to the parties to take responsibility for their file.

A delay in this 180 day rule is allowed for cases that are complex or that have special circumstances

In order to be excused one must show the impossibility of acting within the prescribed period.

The burden of proof is on the party to show that the situation is exceptional and merits an extension.
Specifically to this case

It would be wrong to allow that errors by a lawyer could protect the party from having to follow the rule

There is no proof that there was an impossibility of acting that merits an extension.

This appears to be more like negligence by the lawyer.

We cannot allow apathy to be used an excuse
In order to be excused for missing the 180-day limit, one must show the impossibility of acting within the
Ratio
prescribed period.
Shows QC is strict with this new 180 day limit!
Ontario Pre-Trial Process
Same themes from Woolf’s report that we need to take the handling of the case out of lawyers’ hands.
Primary difference between Quebec and Ontario

Quebec has generalized case management (CCP 151.1 + and a fairly unified procedure for all cases.
o Only exception: in Family law it is 1 year, while in other cases it is 6 months.

Ontario has multiple tracks
o Has tried to institute reforms in line with Lord Woolf report – but in a completely different way!
o Regular track  ordinary rules of procedure
o Simplified procedure (cases up to $100 000) (carved out of regular track) (Rule 76)
o Case management in certain judicial districts (and a modified case management system for Toronto)

There is a blurring b/w these distinct tracks – certain rules across the board.
ORDINARY PROCEDURE

Statement of Claim/Notice of action (Rule 14.03)
o Service must be conducted within 6 months of statement being filed with court(Rule 14.08)
o (Remember Quebec – no time limit as to when you must serve defendant, 180 days only start after service. However,
even though there is no time limit after which the motion to institute proceedings becomes stale, the CCQ says that if
you do not serve motion within 60 days, prescription will not be interrupted – 2892 CCQ). Notice to the defendant to
appear within a time limit (usually 10 days) (CCP 119)

Time to challenge territorial jurisdiction of Ontario court – Rule 17.06 (ex: gain 30 days when case is
almost prescribed)
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Greg Koenderman – JICP – Winter 2011

Defence
o 20/40/60 days (Rule 18.01) or Notice to defend followed by defence (10 extra days (Rule 18.02)).
o Remember – no time limit to file defense in QC – depends on time table

Default judgment if no defence within time (Rule 19)

Party may file reply (Rule 25.04(3))

   DONE! “Pleadings are closed”    (Rule 25.05) A lot of timelines start from the close of pleadings, but there is no
further court proceeding that needs to take place.

Setting down for trial
o Motion to strike after 6 months by defendant. (Rule 24.01)
o Court will intervene after 2 years (from filing of defence)

Court will send status notice (Rule 48.14)  party has 90 days to react.

No 180-day limit like Quebec
Additional Steps

Party may request summary judgment (Rule 20) (unlike Quebec, but see art. 164(4) & 54.1 - this is more a motion to strike)
o Opportunity for plaintiff or defence to say “we don’t really need a trial”. Based on written factum.
o In Quebec, there is only possibility to dismiss the action (if it is unfounded in law, if it is quarrelsome, frivolous)
o In Ontario, can also move to strike out case (Rule 21) (not a summary judgment)
o Summary judgment doesn’t mean case is dismissed, but rather it is a quick and dirty judgment without oral trial
because there is no issue that demands a trial. Court proceeds this way if it agrees that there is no genuine issue or if
the genuine issue is merely as to the amount at issue (defendant says – yes I owe you money, but not this much).
(See Rule 20.04)
o Controversy: New rules allow the courts to weight evidence, evaluate credibility, and draw reasonable inferences,
which is an extension of SJ powers. Designed to make SJ more popular and expand forensic powers of judge. The
worry is everyone will move into SJ (like in the US).

Healy v Lakeridge – demonstrates changes in SJ since Jan 2010.

Purpose of SJ is to dispose of case where trial is not necessary. Disposes of case quickly, where
nothing valuable will come of having a trial.

Shows us that summary judgments are also used in very complex cases.

No genuine issue of material fact requiring a trial

Preliminary Exceptions (Rule 21 – No capacity, subject matter jurisdiction (as opposed to geographic – see above),
frivolous action)

Affidavit of documents – (Rule 30.03)
o Does not exist in Quebec

Remember 3 steps in Quebec  however, only need to disclose docs you will be using in your case.
o In Ontario, however, must disclose all information!

List of documents that are or have been in parties’ possession

Problem – inundate other party with irrelevant information!

Rule 57 – get costs against solicitor if it is abusive
o Related to is broader than relevant too

Used to say related to – now says relevant! However, will this make an actual difference in practice? Jukier
thinks probably not!

Examination for Discovery (Rule 31 – note: Time limit and monetary limit)
o Discovery in Ontario may be written or oral, but not both (as opposed to QC – oral only)
o Discovery Plan (rule 29.1)
o It is an opportunity for abuse! This potential may be limited…

Case up to $100 000 – simplified procedure  (Rule 76.02(1)) (2 hours of discovery allowed (Rule 76.04(1))

For all other cases  7 hours (Rule 31.05.1)

No discovery in small claims in Ontario (below $25 000) (Quebec – no discovery under $25 000 as well)
MANDATORY MEDIATION (RULE 24.1)

Must occur in case management track cases

That fall in certain counties (Ottawa, Toronto, Essex), not in excluded actions…

Within 180 days of the defence

Does not apply to actions on the commercial list in Toronto

Not before a judge (so not bogging down judges’ workload), conducted by a mediator, and not free

Goes before a list of private mediators – you pay for this

Remember – in QC, this is free
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Greg Koenderman – JICP – Winter 2011

Mandatory Pre-trial Conferences (Rule 50.01) – conducted before a judge
o Philosophy: do everything possible for it not to go to trial
o Idea is for issues to be settled before the hearing
o Takes place before a judge or a case management master (master is judge – but “quasi” b/c jurisdiction over case
management, settlements etc…
o Within 180 days of an action being set down for trial, such conference must be scheduled

Approx. 2 years after trial date – not very quick
o All documents to be used at trial must be provided at pre-trial
o Lawyers and parties (in person or by phone) must attend – incentive to settle
2010 changes to ordinary procedure (2 major changes)
o Discovery: Duration, Scope and requirement of a Discovery Plan (Rule 29.1)  Reigning in scope of questioning
o Mandatory Mediation
o Mandatory Pre-trial conference
SIMPLIFIED PROCEDURE – RULE 76

Instituted to ensure proportionality between procedures and value of claim (Lord Woolf’s idea of proportionality)

Mandatory for actions up to $100 000 (Rule 76.02)

“Stick” Rule (remember two tools legislature has: carrots and sticks)

What’s different about Simplified Procedure?
o Limited examination for discovery (Rule 76.04) (oral only – max 2 hours)
o Obligation of parties to have settlement discussion (in meeting or phone call) within 60 days of filing of defence (Rule
76.08). Subject of phone call is a settlement discussion
o Quicker Timeline: Action must be set down for trial within 180 days of defence (Rule 76.09)
o No special pre-trial conference any more – part of the regular pre-trial conference now required for all cases
CASE MANAGEMENT TRACK – RULE 77

Scope set out at Rule 77.02
o Still only in certain counties (Ottawa, Essex and Toronto) and for certain actions (eg: excluded: family, class actions,
estates, bankruptcy mortgage actions, as well as commercial list cases in Toronto)
o So more carving out – based on jurisdiction here instead of $$
o Tort, contract, insurance, civil claims are left (breach of K, damages etc…)

No longer a modified case management for Toronto (b/c system broke down)
o Toronto carved out of case management track
o Reason: Toronto could not keep up – b/c so many pre-trial steps required  backfired.
o So in Toronto commercial list cases are also now excluded (like family, class actions etc)

Cases are no longer automatically subject to case management: criteria of rule 77.05.4 identifies cases that require mngmt.

So purpose of this rule is now: establish case management only for cases that really needed – how do we know what cases
need it?
o List of criteria – Rule 77.05.4

Can’t be in excluded geo area

Can’t be in excluded jurisdiction area

Parties must agree

Or regional senior judge says – according to rule 77.05

So only for most complex cases!

See 77.01 (2) 1 – case management remains with Parties – “Woolf recommendations failed”

Woolf said that judges had to take power away from parties, they did – backfired

Used to be distinguished by mandatory settlement conferences and trial management conferences – NO LONGER

Rule 77.08 – Case Conference may occur at any time.
Interesting Notes:

Rules want the parties themselves to meet at these conference, and only lawyers if they are represented.

Requiring parties to be present, forces them to meet face-to-face – favours settlement
CORRECTION???

ON (unlike QC) decided to have 3 tracks of civil procedure ordinary, simple, case management tracks

1 of the big changes that have taken place in ON as of Jan 2010 is the fact that there is case mgmt if necessary (but not
necessarily case mgmt). It used to be that any case initiated in 3 judicial districts were put in case mgmt track (Toronto, and
others). Toronto couldn’t handle all case mgmt b/c clogged system. In 2010 no longer special case mgmt track in Toronto. The
new purpose in Rule 77 although 3 judicial districts have same type of case mgmt track it is no longer automatic!!!!
o Rule 77: purpose of rule is to est case mgmt system that provides only where a need for it is demonstrated (in
other words case has to fall within 3 judicial districts and has to be ASSIGNED case management)
o Until Jan 2010 for case mgmt had mandatory mediation by virtue of Rule 24.1
o Rule 24.1 still applies as mandatory mediation for case mgmt cases BUT with the change in Rule 77 (that not
every case in 3 districts is case mgmt) there was also change in rule 24.1 (Ottawa, Toronto, Essex) has mandatory
49
Greg Koenderman – JICP – Winter 2011
mediation. (ie mandatory mediation applies regardless of whether assigned case mgmt or not 120 days after
defence is filed (so giving parties a bit more time used to be 90 days))
CML – Mohamed v Banville, p.322, ON Sup Crt, 2009; Motion for Summary Judgement (Granted)
Facts: Defendant Banville fell asleep drunk on the couch. He awoke to fire alarm and smoke. Subsequent fire destroyed neighbours
(plaintiff’s) unit for $150,000 in damages. Banville is a smoker. Fire Marshall reports cause of fire is inconclusive, but expert hired by
plaintiff concluded fire was caused by careless smoking, simply b/c fire started near where banville the smoker fell asleep.
Defendant motion for summary judgement under Rule 20.04 as there is no genuine issue for trial.
Issue: Is there a genuine issue for trial with respect to the claims of negligence, nuisance, or strict liability? [NO, Banville
wins, summary judgement entered]
Reasoning: (J. O’Marra)

Rule 20.04 provides that summary judgement should be entered where the court is satisfied there is no genuine issue for trial.
o Designed to weed out cases at pre-trial stage where it can be demonstrated that trial is unnecessary.

The party requesting Summary Judgement bears the legal or persuasive burden to satisfy the court that there is no genuine
issue for trial, whereas the responding party has an evidentiary burden to respond demonstrating that there is a need for trial.

Finds the facts do no meet the requirements necessary to establish negligence – no evidence that defendant was smoking and
only deduction by expert witness that without other proof, the only possible cause was careless smoking.

Clearly demonstrated that trial was not necessary.
Ratio: Motion for Summary Judgement will not be granted unless there is no genuine issue for trial.
CML – Healey v Lakeride Health, 2010, p. 329, ON Sup Crt; New test for Summary Judgement; Rule 20
Facts: Class action against doctors of Lakeridge health for their handling of tuberculoisis diagnosis. Both defendant doctors and
plaintiffs bring motion for Summary Judgement.
Issue: Should Judge grant a summary Judgement to dispose of the action of Plaintiff [NO] or Defendant [YES]?
Reasoning: (Perell J.): Grant Lakeridge (Doctors) motion and dismiss Plaintiff’s motion for Summary Judgement.

The Purpose of Sumary Judgement rule is to dispose of an action where it is shown that a trial is not necessary.

Jan 2010 revision of rules of civil procedure allow for a “summary judgement if the court is satisfied that there is no genuine
issue requiring a trial”.
o Change enlarges the means afforded to the court to grant a summary judgement.
o Court shall consider the evidence, judge may exercise any of the following powers, unless it is in the interests of
justice for such powers to be exercise only at trial:

Weighing the evidence

Evaluating the credibility of the deponent (person making the disposition);

Drawing any reasonable inference from the evidence.

**This is a statutory reversal of the CML rule that a judge cannot do any of these thigns.

Rule Change is designed to make SJ more readily available and to recognizr that with the court’s extended forensic power
these issues may not require a trial as the court has the power to weigh evidence

Burden of Proof is on the moving party to demonstrate that a trial is unnecessary truly, fairly, and justly resolve the issue.
Ratio: When considering a request to grant a Summary Judgement, the judge should weigh the evidence, evaluate the
credibility of the deponent, and draw any reasonable inference from the evidence.
PLEADINGS AND SERVICE
How much is enough?

View-U – breach of K, claim for $10,000.
o What is wrong? Under Fact pleading this would not stand
o Would the jurisdiction matter?
Fact pleadings versus Notice Pleadings
(See version in casebook)

FACT PLEADING
O Tell a store: “Here is what happened to my client…”
O In QC and Ont – we have fact pleadings

CCP 111 – definition – concise written statement of the facts, and the conclusion sought

CCP 76 – Parties must state the facts they intend to invoke & the conclusion that they seek, statement must
be frank, precise, and brief.

CCP 77 – Every fact that may take the opposite party by surprise must be expressly pleaded…

Ont. Rule 25.06 – concise statement of material facts, on which the parties rely.
o If you don’t think your opponent stated correct facts – what can you do?

If you are defendant:

Take a motion to dismiss if they are so out of this world – CCP 54.1, ON Rule 21 or Summary
Judgement (Rule 20)

Take a motion for particulars – “I can’t defend this b/c I don’t know what he is talking about”
o Art 168 para 7 CCP – suit will be stayed
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Greg Koenderman – JICP – Winter 2011
Dilatory exception- stalling, buying more time so you don’t want this as a plaintiff
b/c your 180 days is ticking

Can’t take these as much anymore
o Declinatory motions – ask the court to decline to take the case, for various reasons like
lack of jurisdiction, standing, etc.
o Motion to dismiss
o On Rule 25.10 – right to demand particulars.
In sum, give enough info to defendant so he knows what you are asking for

o

NOTICE PLEADING
O You give notice of your case to the other side, does not require detailed factual information. Barest of details that will
put the defendant on notice. Ie USA.
O Contrast 111, 76, 77 CCP with Rule 8 of US Federal Rules of Civil Procedure
O Transparency of Process

Less transparent = notice pleading
o Cost implications

Facts set out – cheaper to defend

The less you give in pleadings – the more you need in discovery
o Time factors
o Implications on incentive to settle

Twombly – defendant will not always be able to afford to put lots of $ into discovery – so will be more likely to
settle.
o Access to justice implications (defendant versus plaintiff’s position)

Fact pleading better for defendants

Notice pleading better for plaintiffs

Low threshold of info – system is open to plaintiffs, legitimately harmed but who don’t have a lot of
$$ to get all their ducks in a row to establish facts
o The two evidence different goals

Two different versions of pleadings
o Fact pleadings v Notice Pleadings

Fact pleadings you can be forced to spend a lot of money getting at the facts of the case. Think how difficult
it is to initiate medical malpractice proceedings. Too much of a burden up front on plaintiffs to get case
going.

Why shouldn’t the burden be placed on the plaintiff?

US with Notice pleadings has massive Discovery, whereas Cdn with fact pleading has short
discovery.

Which version is better for promoting early settlement?

FP – Plaintiff demonstrates that she knows everything in advance and how things went wrong

NP – Defendant has to pay large sums during discovery and is motivated to settle.

All this really depends on which party you want to favour?
o NP increases Access to Justice (for individual plaintiffs w/out deep pockets)
o Transparency of Process
o Cost Implications
o Time factors – which is more efficient
o Implications on incentive to settle
o Access to justice implications
o The two evidence different goals.

Cases in point
o Ashcroft v. Iqbal. Is the U.S. Supreme Court toughening the standard?

Case is decided on sufficiency of pleadings, and not substantive law

This seems to move US closer to fact pleadings.

This adds a plausibility test to Notice Proceedings.

Is political element in Iqbal influencing a procedural issue?

Reaction by community, media  outrage at majority

By moving away from just a notice, closing door to access to justice

This is a “major shift”

Perception is that US is toughening the standard. Yet it has not really gone as far as to resemble
Canadian fact pleading.

Is this case truly about NP/sufficiency of proceedings, or simply using it to justify policy decisions? (Security
above all rights).

Dissent: a court must take the allegations as true, no matter how skeptical the court may be.
Homologation – private deals go public, but gets force of court judgment.
CML - Ashcroft v. Iqbal (2009) US SC, p. 359; Higher standard set for Notice pleadings – req “factual plausibility”
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Greg Koenderman – JICP – Winter 2011
Case brought against highest ranking security official in the US, on an extremely sensitive issue  Complaint alleges
that Ashcroft et al. adopted an unconstitutional policy that subjected Iqbal to harsh conditions of confinement on account
of his race, religion or national origin.
Did Iqbal fail to plead a factual matter, that, if taken as true, states a claim that Ashcroft et al. deprived him of his clearly
Issue
established constitutional rights? [NO]
Holding
Pleadings are insufficient.
Reasons 
Twombly calls for a “flexible plausibility standard”  if amplification is needed to render the claim plausible, the
pleader must provide factual allegations

Federal Rule of Civil Procedure 8(a)(2): “a pleading must contain “short and plain statement of the claim showing
that the pleader is entitled to relief”
o Detailed factual allegations are not required

Plausibility standard:
o Sufficient factual matter must be provided to make the claim plausible on its face
o NOT about probability, plausibility just asks for more than a sheer possibility that a defendant has
acted unlawfully

From Twombly:
o Court accepts factual assertions as true, not legal conclusions disguised as factual assertions
o Only a complaint that states a plausible claim for relief survives a motion to dismiss
o The complaint in Twombly was dismissed b/c the well-pleaded fact of parallel conduct, accepted as true,
did not plausibly suggest an unlawful agreement

Iqbal complainant has not nudged his claims across the line from “conceivable” to “plausible”
o His claims represent a “formulaic recitation of the elements” of a constitutional discrimination claim 
allegations are conclusory so are not presumed to be true

The Federal Rules do not require courts to credit a complaint’s conclusory statements without reference to its
factual context
o Claim needs more factual content
Dissent: Dismiss claim on the basis of immunity – not on the basis of pleading. Seem to be uncomfortable with the
rules of civil procedure being used to oust a case against high-ranking officials on such a sensitive matter.
Factual plausibility required in pleadings. Why this tougher standard?
Ratio
NOTE: Iqbal motion = procedural mechanism to have a case dismissed on the pleadings.
Facts
Recognition and enforcement of foreign judgments

CF geographic jurisdiction
o Geographic jurisdiction is at first blush a strategic decision by the plaintiff. The plaintiff may consider where the
defendant has assets, for instance, but also how the judgment will be executed.

Foreign judgments
o Will be subject to execution in CAD if foreign court had jurisdiction in the first place (real and substantial connection
test).
o See CCQ arts. 3155, 3156, 3158 (CCP Art 785)

Default position is enforcement of foreign judgments because of international comity, except where there is
no jurisdiction…(3155)

As long as it was duly served and they didn't show up, they must suffer consequence  default judgment
(3156)

Even if Canadian would not have decided in the same way (ex: treble damages), this is not the criteria  do
not look at the merits (3158)
o What if decision really goes against all fundamental Canadian values?

3155 gives to outs

Outcome of foreign judgment is inconsistent with public order (in an international way)(ex: torture).

Outcome is inconsistent with fundamental principles of procedure (Cf. Beals  was there a breach
of natural justice?). One of these principles is need to hear the other side (which does not happen in
default judgments) (art. 5 of the CCP).

However, by doing nothing, aren’t the defendants authors of their own misfortune?
o Beals v. Saldanha (2003)

Suit for 5K involving Ontario couples ends up totaling over 1M.

Florida had jurisdiction, b/c land in dispute was in Florida. Mistaken K case.

Defendant built on land they thought they owned, but they mistakenly did not own.

It is an extreme case in that shows implications of fact versus notice pleading.

To have a foreign judgment executed in Ontario, they have to go thru a second step of having the judgment
recognized. This allows the courts the opportunity to review foreign decisions for Public Policy.

SCC

Major (Majority)  judgment stands (was not contrary to public policy, natural justice, or obtained
through fraud)

Binnie (Dissent)  can’t sue for something for 5 grand and then goes up to 1M – unfair procedure.

Lebel (Dissent)  narrower; parties must have had opportunity to respond. Result here is overly
harsh and unfair.
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Greg Koenderman – JICP – Winter 2011

This distinction b/w NP & FP can have huge implications: Ashcroft case being thrown out, couple having a Million dollar claim
against them.
Enforcement of Foreign Judgments
What is the link to Jurisdiction?

In CML Canada?

In QC (art. 3155(1))
Other Relevant Factors – Reasons Courts can refuse to enforce foreign judgments:

Denial of Natural Justice 3155(3)

Public Policy 3155(5)
CML - Beals v. Saldanha [2003] SCC, p. 335, Enforcement of foreign judgement; domestic defences to refuse
enforcement of foreign judgement; result of Notice Pleading.
Facts
Issue
Holding
Reasons


The appellants (Saldanhas) are Ontario residents who owned a lot in Florida that they sold to the Beals.
Regrettably (esp. in light of the $1 million dollar damages) there was an error in the papers regarding the lot and the
Beals started building a model home on the wrong lot.

Once the error was realized they sued the Saldanhas, the realtor, and the insurance company for damages.

2 claims were made, the first was dropped. While the Saldanhas responded to the second action initially, they did
not respond to the 3 subsequent amendments to that action.

Florida law states that a failure to defend the amendments has the effect of not defending the second action &
judgment in default was rendered to the tune of $260,000 US as awarded by a jury.

The damages were not paid and proceedings were initiated in Ontario to enforce the judgment.

At no point were the Saldanhas told the amount of damages – they were just told the proceedings dealt with costs
in excess of $5,000 but they believed the value of the claim to be $8,000.

The Saldanhas received legal advice that told them that the judgment would not be enforceable in Ontario and that
they should file an appeal in Florida (this was the state of the law at the time…)

By not responding under Florida law that means that they had admitted the allegations of the amendment.

Trial judge in Ontario said the award was unenforceable.

CoA said it was enforceable w. Weiler in dissent stating that the defences of natural justice and fraud would apply
here as they were not given adequate notice to “permit them to appreciate the extent of their jeopardy.”
Is the judgment enforceable in Canada in light of the failure to give notice of the need for a defence to each
amendment – is that failure a violation of natural justice? (Note: claim is now $1mil)
The judgment stands.
Major J (Majority)
1. Does the Foreign Court have a Real and Substantial Connection (with either the subject matter of the action or
the defendant)? YES
2. With proper jurisdiction, the judgements of that court must be recognized and enforced by a domestic court,
provided no defences bar its enforcement.
3. New defences can be created, or existing defences of fraud, natural justice, or public policy can be advanced.
4. Damage awarded cannot be determinative

“Real and Substantial Connection” test to see if a jurisdiction is appropriate – Florida was.
o
Morgaurd case, re: La Forest, “The deference and respect due by other states to the actions of a state
legitimately taken w/in its territory.”

Then went on to look at defences that might apply to prevent the judgment from being valid.
o Defences of Fraud, public policy, and a lack of natural justice are all grounds re: Morguard. Turns on
whether statement of claim and notice was sufficient for adequate notice.
o New defences can be created as they are meant to protect against unfairness.
o In regards to natural justice – domestic courts must be satisfied that a minimum standard of fairness has been
applied. “The defence of natural justice is restricted to the form of the foreign procedure, to due process, and
does not relate to the merits of the case.”
o In Canada this includes the right to notice of claim made against a def – Major says that this was an
error/mistake on the side of the def. to assume the value of the claim as the pl. was only required to be told of
the nature of the claim. Types of damages were explained – no need for precise dollar amount.
o It was their mistake to fail to appeal - mistake for having relied on the lawyer – not a mistake of notice.
o They should have found out more information about the Florida judicial system  Policy rationale behind this
– “to find otherwise would unduly complicate cross-border transactions”.
Binnie J (Dissent)

If the notice had been sufficient he would have regrettably gone with the majority BUT “they were kept in the dark
about the true nature and extent of their jeopardy”.

Florida had jurisdiction but we need to look at how the proceedings transformed, “a minor real estate transaction
into a major financial bonanza”

Florida you have 20 days to respond as a defence, if not, judgment will be entered.

Key: that they would have to respond to amendments that did not even change the allegations against them waste
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Greg Koenderman – JICP – Winter 2011






Ratio
of time!
Determining the magnitude of a natural justice claim depends on assessing the, “importance of the decision to the
individual or individuals affected” (from Baker.)
There is no way that it was obvious to an Ontario lawyer Or to self-rep that a new def. be filed each time.
The Saldanhas were also not notified that the charges against the other parties had been dropped and that they
were now the sole focus of the claim.
No notice re: expert w, other parties, mandatory mediation, that damages would include for unforeseen sales on
homes based on the model home etc.
UNFAIR procedure – therefore allow the appeal and dismiss the actions.
No presumption that a Cdn resident is presumed to know the law and risks attendant with the notice from a foreign
jurisdiction.
LeBel (Dissent) Natural Law

Would modify the Real and Substantial connection test in international cases, so that foreign jurisdiction will not be
recognized if it is unfair to the defendant.

“Our law should be flexible enough to recognize and avoid such harshness.”

Decision means that Canadians will be forced to participate in lawsuits that may be meritless or small but have high
financial costs.

Notice requirements should be seen as purposive and flexible & substantive principles of justice should be included
in the scope of the defence.

Natural Justice: “the underlying fundamental principle of justice is that def. have a right to know the case against
them and to make an informed decision as to whether or not to present a defence.”

In Canada the rule is that the amount of damages sought must be mentioned – you don’t need that in other
jurisdictions but it should be close for it to be recognized by Canada.

You CAN’T have facts assessed “beyond the pleadings.”

There is a difference b/w fairness in a legal system and fairness of procedure.

Their failure to respond was not the product of their own volition.

Award was assessed w/o any consideration of the def. actions warranting such a punishment.

Did not seek Florida remedies b/c their lawyer told them that to do so would be to submit to the jurisdiction of
Florida and would result in enforcement.

The reasonableness of using remedies MUST be assessed from the persons point of view – poor legal advice is
not an excuse but it is a mitigation factor here.

Cite de Pont Viau v. Gauthier states that parties can’t be penalized for the error of a counsel when the party acted
with due diligence.

The parties acted conscientiously. “Their apprehensiveness about going back to that very legal system to seek
relief was, in the circumstances, understandable.”
“The defence of natural justice is restricted to the form of the foreign procedure, to due process, and does not
relate to the merits of the case.”  In Canada this includes the right to notice of claim made against a def (MET
IN THIS CASE)
Pitel, S.G.A., “Enforcement of Foreign Judgements: Where Morguard stands after Beals”, p. 414

Beals confirms Morguard.
Explaining “the connection”

It is unclear which two things the “real and substantial connection” must be between. Beals simply states: “with the subject
matter of the action or the defendant”. This expression could be problematic and LeBel’s more holistic focus is preferable.
Application to truly foreign judgements

No doubt that Real and Substantial test applies to foreign (international) judgements and not just interprovincial

Fucking Long article…didn’t finish reading.
Statement of Claim
Beals v Saldanha (Above)
CCP 76, 111, 118, 119, 168 (1) and 168(2) (7) - Statement of Claim
Ontario Rules 25.06, 25.10
Rules of Pleadings
US Federal Rules of Civil Procedure (Rule 8), p. 8; Notice Pleading
(a) Claims for Relief
A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the
claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
Scott Dodson, “Comparative Convergences in Pleading Standards”, p. 348
The US system:
54
Greg Koenderman – JICP – Winter 2011
o
o
o
o
o
Notice pleading required by Rule 8.
Twombly and Iqbal recently imposed “plausibility’ standards that depend upon factual sufficiency, eliminating the more liberal
notice pleadings standards that the Court endorsed since 1957.
Demonstrates that US civil procedure is not static and may be evolving towards widely held global standards of fact pleading.
Twombly raised a stir when it was decided and some questioned whether the US was moving towards a heightened pleading
standard.
Shift seemed to be moving from legal sufficiency to ‘factual sufficiency’ resulting in a burden on plaintiffs to plead a level of
factual details that the court had not previously required. This was confirmed two years later in Iqbal
Service

Linked to the principle of audi alterum partem (hear the other side)
o 5 CCP
o This right is carried out through service  due notice to other party so that they may decide to defend.
o Personal service is still the norm, but is it outdated?

Australia  couple served via Facebook

Judicial system is slowly adapting to electronic age and the new ways of communications they lead to (efiling, e-discovery, e-service)

Right to be heard versus stability of judgments
o How do you serve corporate parties?

130 CCP

482 CCP – party who is subject of default judgment can have the case re-opened.

Ontario Rule 16.02
o Problems

Best buy had 2 chances to get notice, but in both cases internal corporate policy was not followed.

We need predictability and finality. When do you know the litigation is the end of the road?

On Motion to revoke judgement

What arguments in favour of allowing the motion to retract?
o Rules of procedure are only designed to support the substantive law, Art 2 CCP, and
people should not lose a case based on their procedural law.

What about in favour of denying the motion to retract?
o “come on” they were served twice and did not respond!
o Prof. Zuckerman: Are we creating a situation where we have a “beautiful castle” of rules, but judges who do not
always apply them as they do not want party to lose on procedural matters?

In Best Buy, plaintiff followed rules of procedure and served defendant twice. It is not plaintiff’s fault that
defendant has an idiot employee. Employee was grossly negligent (the least prudent and most negligent
person)

Judges are mismanaging the system by never rendering a decision based on a procedural reason.
They can’t bare to see a valid defence not pleaded for a procedural irregularity.

If we say procedural law is the handmade rather than the mistress, we are more concerned about the
substance (CoA’s view).

Remember – we didn’t give Saldana a second chance, so why give one to Best Buy? BestBuy is inconsistent
with Beals
CVL - 9026-8863 Quebec inc. v. Best Buy Canada Ltd [2006] Que. C.S. and C.A., p. 366, 2006, BB ignores service,
has default judgement rendered, given second chance to make their case.
Facts
Issue
Holding
Reasons


Bailiff serves proceeding on manager of one store, then serves amendment to another manager of another store
Best Buy had a policy re: how to deal with legal docs, but no one in Quebec knew about it—dude who received
notice didn’t give it to the right person, and legal department never saw it…

Best Buy is subject to a HUGE default judgment (almost 800K!)

CCP 482: Best Buy tries to revoke default judgment against it and does so within 15 days

Superior court judgment: default judgment stands!
o Art. 5 CCP says that proper notice substitutes right to be heard, and therefore default judgment stands as
long as there was proper notice
o There was sufficient notice: notice was given to ppl in authority at the company (it’s the company’s
problem that these people didn’t even respect their own policy and pass the notice on to the proper
people! It isn’t up to pl to make sure that the legal dept of the company sees the notice! All pl has to do is
serve notice on someone with authority, and he did that!) - the law would be fragile if crt were to excuse
Best Buy’s negligence!

Fact that award against Best Buy in default judgment so huge=irrelevant!
Should the CoA overrule the SC’s ruling, revoke the default judgment, and let BB make a defence?
Yes

Courts need to show a little mercy when it comes to procedure: art. 2 CCP says that the point of procedure is to
serve the substance of the law, not to toss it out the window! [“En matiere de procedure, les tribunaux doivent faire
prevue de souplesse, comme l’edicte l’article 2 Cpc, afin que les regles de procedure servent a faire appareaitre le
55
Greg Koenderman – JICP – Winter 2011
droit et non a le faire perdre”]
Best Buy deposited its reasons for having failed to appear, and it did so on time, so we should let them come back
and make a defence
Ratio
Art. 2 of CPC can excuse the negligence of a duly summoned party
Difficult to reconcile Best Buy and Beals

Jukier does not approve: can’t believe that court of appeal reversed decision of superior court

Jukier: See article 2 CCP [“the rules of procedure in this Code are intended to render effective the substantive law and to
ensure that it is carried out; and failing a provision to the contrary, failure to observe the rules which are not of public order can
only affect a proceeding if the defect has not been remedied when it was possible to do so. The provisions of this Code must
be interpreted the one by the other, and, so far as possible, in such a way as to facilitate rather than to delay or to end
prematurely the normal advancement of cases”] . Procedural law is the handmaiden of the substantive law. Court of appeal –
we are not going to take away their right to plead a substantive defence.

This is not a case of surprise, fraud, or any other sufficient reason for failure to respond to notice (art 482) – it is the negligence
of an employee sufficient reason – and what does this do to the stability of judgments?

CVL – 9026 Quebec v Bestbuy, QC Sup Crt, p. 366, 2006, BB ignores service, has default judgement rendered, given
second chance to make their case.
Service to corporations
ON: 16.02(i)(c)
Head office, or one of its establishments, provided speaking to senior officer or person in charge of establishment.
QC: 130 CCP
BB head office is in BC. Bailiff serves proceedings on manager of individual store, amendment served on another manager of
another store (both in Richelieu ??).
BB had internal policy that legal proceedings should be sent to legal department, was not followed in this case.
BB applies to revoke judgment (482 CCP).
Superior Court:
Stability of judgment: cannot overturn a judgment duly rendered.
Court of Appeal
Ratio: Procedural law is there to serve substantive law. BB has serious substantive defence, will not take away rights
based on procedure.
Comment: how to reconcile with Beals?
THE RIGHT TO INVOKE THE JURISDICTION OF THE COURTS
Jurisdiction and geography

Big question: Where to sue?
o How do we decide what court is appropriate from a geographical point of view? What criteria have been developed?
o In what circumstances can the defendant go to that court and say that it is not the appropriate court to decide the case
or that there is a better forum available?
o To what extent can the parties throw out the codal default rules and decide what jurisdiction will hear the case?
Two Jurisdictional Issues

Subject matter jurisdiction
o Cannot choose subject-matter jurisdiction – it is a matter of public order. Cannot agree to take a case to a court that
does not have subject matter jurisdiction.

Class actions cannot take place in provincial court – they automatically go to the Superior Court. Also, if a
claim is under 70K in QC, it falls under provincial court jurisdiction.

If taken to wrong court then that court will take declinatory exception (ie decline jurisdiction)Rule 21.03, Art
163 CCP.

Only one exception to subject matter jurisdiction: parties can oust jurisdiction of courts altogether:
ARBITRATION

Geographic jurisdiction
o Is NOT of public order.
o If a party does not bring a declinatory exception motion before the court, that party will be seen as accepting the
jurisdiction of the court, no matter where he is sued within Canada.
o Important within provinces and across borders.
o Place of instituting actions within the province (Rule 13.1.02, art. 68 and 73 CCP)

68 CCP: Df’s domicile, place where cause of action took place, place where K entered into (CPA)

73 CCP: where property is located

Rules in ON have similar provisions.13.1.02 gives rule for county within ON
Geographic jurisdiction in cross border situations

Refers to both borders within the country as well as borders between countries.
56
Greg Koenderman – JICP – Winter 2011
1) When will a forum have the requisite jurisdiction?
o If it has a real and substantial connection and/or if it falls under one of the categories enumerated in Rule 17.02 or art.
3148 CCQ? (see later)
2) Despite the appropriateness of the forum, how can its jurisdiction be ousted?
o Forum non conveniens - courts may refuse to take jurisdiction over matters where there is a more appropriate forum
available to the parties
3) To what extent can the parties control the jurisdiction of forum?
Note: Applicable forum and applicable law are two very different things. We are not talking about choice of law clauses but choice of
forum clauses. The question is what court has jurisdiction. (Example a court in Texas may be forced to apply substantive Quebec
law. In these cases, the court will hire an expert on the “foreign” law. The procedural rules of Texas would apply)

Strategic considerations of plaintiff (chooses the forum)
o Rule of thumb – choose the forum where the defendant lives, defendant will rarely contest
o Costs Cheapest if you sue where the plaintiff is, where the witnesses are...
o Quantum of costs/damages awarded  example Qc vs. ONT
o Assets of the defendant  how willing will the defendant be in executing the judgment rendered against him? It is
much harder to execute a foreign judgment. So where are the defendant’s assets?
o Procedural rules  Delays being more favourable in one forum (Ontario 2 years vs. Quebec 180 days), mandatory
mediation, jury trial,

Law vs. Forum
o In Texas example, the court will apply Quebec law to the merits of the case BUT the procedural rules are always
those of the forum.
o But where do damages fit in? Damages are both procedural and substantive. Example of pure economical loss –
some forums will recognize it as a head of damages and others won’t (substantive) – the quantum of the damages
however is procedural

Jurisdictional protections for defendant
o He can contest the forum
o Sidenote: Consumer Protection Act assumes K to be formed at consumer’s domicile
QUESTION 1: WHEN WILL A FORUM HAVE THE REQUISITE JURISDICTION?

In the absence of a choice of forum clause, how does a court determine whether it has jurisdiction?
o Generally, need to find a REAL AND SUBSTANTIAL CONNECTION b/w the subject matter of dispute (the
cause of action) and the jurisdiction/forum (Van Breda). (Applies interprovincially and internationally (Beals [19])

There must be “A real and substantial connection” (general standard subject to forum non conveniens) rather
than the MOST real and substantial connection.
o Criteria for this real and substantial connection

No hard and fast rule, but pattern emerging in Unidroit Principle 2.1.2

Where is the defendant?

Where is the property located?

Where did a significant part of the transaction or occurrence occur?

These 3 are not magic but a good indication that there is a real and substantial connection

Difference between Quebec and Ontario
o Quebec

Notion of real and substantial connection is codified in art. 3148 CCQ (substantive law)

If you fall within one of the sections of this article, you automatically have a real and substantial connection
(Spar Aerospace / Van Breda). A court is “forced” to take the case if art. 3148 applies. This is the heavily
criticized opinion of LeBel in Spar Aerospace
o Ontario

Connection is in the rules (Rule 17.02) so it is procedural.

Service outside Ontario (bringing outside defendant in Ontario) – factors set out in Rule 17.02

Just because you have one of the factors under this Rule does not mean that a court automatically has
jurisdiction (they are factors, but not irrefutable).

Therefore, in Ontario it is a two-step process. First you must fall under one of the categories, you must also
prove a real and substantial connection. In Quebec, as stated in Spar Aerospace, you do not need to prove
an additional real and substantial connection. It is implied in the sections of art. 3148 CCQ. This expands
QC’s jurisdiction.
Summary: A court has jurisdiction if it meets real and substantial connection test
57
Greg Koenderman – JICP – Winter 2011
Ontario  Factors under Rule 17.02 and other factors (Van Breda)
Quebec  Criteria under CCQ 3148 (Spar Aerospace)
QUESTION 2: DESPITE THE APPROPRIATENESS OF THE FORUM, HOW CAN ITS JURISDICTION BE OUSTED?


Forum non conveniens: Despite prima facie jurisdiction of the forum, the case may be more closely related to or would be more
effectively heard in a different jurisdiction.
o Ontario

Rule 17.06 and s. 106 CJA  Motion to stay (if other forum refuses jurisdiction, then the party does not have
to reinstitute the case since it was merely put in abeyance)
o Quebec

This notion is not found in CCP but in art. 3135 CCQ (“another country” should read “another jurisdiction”)

See second argument in Spar Aerospace – failed since there were so many other jurisdictions but none that
was better than Quebec).
It is the defendant that has the burden of proof to show that the jurisdiction is not appropriate (costly...).
QUESTION 3: TO WHAT EXTENT CAN THE PARTIES CONTROL THE JURISDICTION OF FORUM?

Occurs only when the parties have a pre-existing relationship (choice of forum clause)  see next section
ALI/Unidroit, Principle 2; Jurisdiction of Courts over parties, Real and Substantial Connection
2.1 Jurisdiction over a party may be exercised:
2.1.1 By consent of the parties to submit the dispute to the tribunal;
2.1.2 When there is a substantial connection between the forum state and the party or the transaction or occurrence in
dispute. A substantial connection exists when a significant part of the transaction or occurrence occurred in the forum
state, when an individual defendant is a habitual resident of the forum state or a jural entity has received its charter of
organization or has its principal place of business therein, or when property to which the dispute relates is located in the
forum state.
2.2 Jurisdiction may also be exercised, when no other forum is reasonably available, on the basis of:
2.2.1 Presence or nationality of the defendant in the forum state; or
2.2.2 Presence in the forum state of the defendant’s property, whether or not the dispute relates to the property, but the court’s
authority should be limited to the property or its value.
2.3 A court may grant provisional measures with respect to a person or to property in the territory of the forum state, even if the
court does not have jurisdiction over the controversy.
Ontario Rules of Civil Procedure, Rule 17 - Service
CCQ 3134 -3154 (article 3148 in particular) – Substantive Jurisdiction of QC Courts
DIVISION II
PERSONAL ACTIONS OF A PATRIMONIAL NATURE
3148
In personal actions of a patrimonial nature, a Québec authority has jurisdiction where
(1) the defendant has his domicile or his residence in Québec;
(2) the defendant is a legal person, is not domiciled in Québec but has an establishment in Québec, and the dispute
relates to its activities in Québec;
(3) a fault was committed in Québec, damage was suffered in Québec, an injurious act occurred in Québec or one of
the obligations arising from a contract was to be performed in Québec;
(4) the parties have by agreement submitted to it all existing or future disputes between themselves arising out of a
specified legal relationship;
(5) the defendant submits to its jurisdiction.
However, a Québec authority has no jurisdiction where the parties, by agreement, have chosen to submit all existing
or future disputes between themselves relating to a specified legal relationship to a foreign authority or to an
arbitrator, unless the defendant submits to the jurisdiction of the Québec authority.
CVL - Spar Aerospace Ltée v. American Mobile Satellite Corp (2002) SCC P. 372 – Appropriateness of Forum; Real &
Substantial Connection Test in CVL Rejected, CCQ adequately defines correct jurisdiction
Facts




Issue
1)
2)
3)
American Mobile & 3 others challenging jurisdiction of QC court in complaint by Spar against them
Spar was subcontractor of Hughes Aircraft to manufacture communication payload for satellite at its QC office.
In testing satellite, serious damage caused and Hughes refused to pay Spar performance-incentive payments
provided in their K
Spar holds the appellants responsible for the damage to the satellite (they were involved in testing) which caused
its losses.
Do the QC courts have competence in the present matter pursuant to the factors set out in Art. 3148(3) CCQ?
Should the criterion of a “real and substantial connection” be used when determining whether or not a QC authority
has international jurisdiction under Art. 3148 CCQ?
Even if QC courts are competent in the present matter, should jurisdiction be declined on the basis of the doctrine
of forum non conveniens, pursuant to Art. 3135 CCQ?
58
Greg Koenderman – JICP – Winter 2011
Holding
Reasons
1) QC courts have competence pursuant to “damages” factor under 3148(3) CCQ.
2) No
3) No better forum
Lebel J. (Majority)

Spar’s HQ was in ON, none of appellants have HQ or establishments in QC

General principles to consider in interpretation of private international law rules: comity (dfn p.252, para19), order
and fairness (though not binding rules)
Question 1: - Jurisdiction Simipliciter

4 possible grounds for asserting jurisdiction under 3148(3) but only 2 relevant here (damage & injurious act)

Damage
o Spar claims damage to its reputation in QC, thus resulting in loss of profits/clientele/future profits
o Prima facie case by Spar accepted by court since QC operations had developed own reputation distinct
from Spar’s national rep
o QC facilities suffered injuries even if incentive payments were to be made to TO office (amount of
damages not relevant to jurisdiction issue)

Injurious act
o Rejected as injurious act understood to mean damage-causing event that attracts no-fault liability  none
shown in this case
Question 2: Real & Substantial Requirement

Morguard and Hunt established constitutional imperative for Canadian court to assume jurisdiction only where “real
and substantial connection exists” but this was in context of interprovincial jurisdictional disputes (cf Beals) must
consider the fact we’re federation and provinces governed by same Constitution so concern re federalism underlies
these decisions. Beals says same test applies internationally.

Rejects appellants’ argument that additional “real and substantial connection” requirement exists in supplement of
CCQ provisions in the case at hand  Book 10 of CCQ provisions sufficient for ensuring “real and substantial
connection”, no need for further constitutional assessment.

“Real and Substantial” is CML principle that should not be imported into CVL [49]
o Principles of comity, order and fairness guide the determination of PrIL issues such as jurisdiction, forum
non conveniens, choice of law and recognition of foreign judgments. In Qc these are codified in CCQ.
o Broad basis for jurisdiction at 3148  forum non conveniens at 3135 is the counterweight.
o In Qc, look to Code 1st, interpreting it in accordance with the PrIL principles that underlie the rules

PrIL principles are not binding rules, they are to assist in interpretation

There is no need for the application of an additional “real and substantial connection” test to
validate Qc jurisdiction since the grounds of actions in 3148 (fault, injurious act, damage,
contract) all provide for a “real and substantial connection” b/w Qc and the action.
Ratio
Question 3: doctrine of forum non conveniens:

3135 CCQ  key parts are its exceptional nature and another country must be in better position to decide the case

No other jurisdiction clearly more appropriate (numerous options) so doesn’t warrant using this exceptional power
(p.380, para71- 10 possible factors in determining if a country better positioned):
1) The parties’ residence, that of witnesses and experts;
2) The location of the material evidence
3) The place where the contract was negotiated and executed
4) The existence of proceedings pending between the parties in another jurisdiction
5) The location of the Defendants’ assets
6) The applicable law
7) Advantages conferred upon Plaintiff by its choice of forum, if any;
8) The interest of justice
9) The interest of the parties;
10) The need to have the judgment recognized in another jurisdiction.

When no clear “best” forum, where plaintiff chooses wins by default

Forum non conveniens doctrine in art 3135 is the counterweight to and the justification for allowing the breadth of
3148. It is where juridical advantage, directness, size of the claim, and other questions of forum will be dealt with.

FNC doctrine depends generally on order and fairness.
o Order takes into account certainty and efficiency.
o Fairness takes into account the context of the individual parties and the appropriateness of any given
forum.

FNC requires that the defendant show that the desired forum to be deferred to is “clearly better suited to decide the
case” by these and other relevant criteria.
Book 10 of CCQ provisions sufficient for ensuring “real and substantial connection”, no need for further
constitutional assessment
CML – Van Breda v. Village Resorts Ltd, 2010, p. 383, ON CoA; ON jurisdiction over out-of-province defendants
Facts: Lady hurts herself at resort in Cuba, wants to sue in Ontario
59
Greg Koenderman – JICP – Winter 2011
Issue: Can Ontario assume jurisdiction over out-of-province defendants who suffer personal injury damage? [YES]
Holding (Sharpe J.A.)

Morguard Investments for the first time at CML assumed jurisdiction and enforcement of foreign judgements based on the
idea of “real and substantial” connection and respect for the principles of order and fairness.
To determine Real and Substantial Connection [47]:
1. The connection b/w the forum and PL’s claim;
2. Connection b/w forum and defendant;
3. Unfairness to def. in assuming jurisdiction;
4. Unfairness to Pl in not assuming jurisdiction;
5. Involvement of other parties to the suit;
6. Court’s willingness to recognize and enforce an extra-provincial judgement rendered on the same jurisdictional basis;
7. Whether the case is interprovincial or international in nature; and
8. Comity and the standards of jurisdiction, recognition, and enforcement prevailing elsewhere.

Important to distinguish b/w real and substantial connection test and the forum non conveniens doctrine.
o RSC – legal test, fact-specific inquiry, but rests upon legal principles of general application. Question is whether
the forum can assume jurisdiction over the claims of Pl in general against Def.
o FNC – discretionary, focuses upon the particular facts of the parties and the case
Factors used to assess Forum non conveniens:
1. Location of the majority of the parties
2. Location of key witnesses and evidence
3. Contractual provisions that specify applicable law or accord jurisdiction
4. The avoidance of multiplicity of proceedings
5. The applicable law and its weight in comparison to the factual questions to be decided.
6. Geographical factors suggesting the nature of the forum; and
7. Whether declining jurisdiction would deprive the Pl of a legitimate juridical advantage available in domestic court.
Muscutt Test for assumed jurisdiction against out-of-province defendants is amended as follows:
1. Determine whether a real and substantial connection is presumed to exist with Ontario. Burden falls on person seeking to
make claim…either for or against jurisdiction.
2. Consider Fairness of assuming or refusing jurisdiction
3. Involvement of other parties to the suit is only relevant where this is asserted as a connecting factor
4. Willingness to recognize similar judgement if the tables were turned with another jurisdiction
5. International v interprovincial, comity and the standards of jurisdiction recognition.
6. Where there is no where else for Plaintiff to go, there is a residual discretion to assume jurisdiction.
Choice of forum clauses

Role of parties in choosing forum:
o Freedom of contract: parties can agree to almost anything that isn’t against public order pursuant to the autonomy of
the will.
o Cannot claim forum non conveniens when K has chosen the forum
o In QC, rules are substantive as opposed to procedural (CCQ as opposed to CCP)

CCQ 3148 – final paragraph, states: “However, a Québec authority has no jurisdiction where the parties, by
agreement, have chosen to submit all existing or future disputes between themselves relating to a specified
legal relationship to a foreign authority or to an arbitrator, unless the defendant submits to the jurisdiction of
the Québec authority.”

Choice of forum clause (as opposed to choice of law)

Technically we do not need this clause as parties can choose their forums based on regular
contract rules.

How have courts reacted to choice of forum clauses?
In commercial agreements, courts bow to choice of forum clauses. However, the court seems to have left the door open in
consumer situations and adhering parties.
These are recent cases – is this direction consistent with the direction it is going it in other cases (ex: Houle)?
CML - Z.I. Pompey Industrie v. ECU-Line (2003) SCC, p. 390 – Test for stay of proceeding to enforce foreign
selection clause
Facts
Issue
Holding
Reasons

Exclusive choice of forum clause contained in bill of lading (K between owner of goods and shipper) specifying
jurisdiction of Belgian courts. However, plt takes case to Federal Court of Canada

ZI challenges the validity of the contract in the Canadian courts.

ECU demands a stay of proceedings in the Canadian courts based on the fact that the clause required disputes
to be determined exclusively by the Belgian courts.
Should ECU be granted a stay of proceedings?
Yes

Canada is not the appropriate forum. Had there been no choice of forum clause, it may have been the
Bastarache
60
Greg Koenderman – JICP – Winter 2011
J.

appropriate forum. However, the parties have decided otherwise.
Reasoning focuses on…
o Commercial certainty and “autonomy of the will” of the parties
o Stability and Certainty, reciprocal respect for foreign courts (Int’l Comity)
o Court should only not apply the clause if there is “strong cause”  although not sure what is
meant by this, but seems to open the door to possibility of not upholding these clauses in a consumer
adhesion contract.

Policy considerations:
o Forum selection clauses are common components of international commercial transactions
o Create certainty and security, derivative of order and fairness, the basic principles of private international
law
o Desirable to hold contracting parties to their agreement

The Eleftheria test (the strong cause test) responds to these policy considerations, while giving sufficient leeway
to the judges to prevent D from relying on forum selection clauses to gain an unfair procedural advantage [390]:
1) The power to grant a stay is discretionary; the discretion to grant a stay should be exercised unless
strong cause for not doing so is shown.
2) The burden of proving strong cause is on the plaintiff who commences action in forum contrary to
clause.
3) In exercising its discretion, the Court should take into account all the circumstances of the particular
case, in particular:

Location of the evidence

Whether the law of the foreign court applies and if so, whether it differs from the English law in
any material aspects

With what country each party is connected

Whether the plaintiff would be prejudiced by having to sue in a foreign court: deprived of
security for the claim / unable to enforce any judgment obtained / time-bar / for political, racial
or other reasons.
Basically, test imposes burden on plaintiff to satisfy the court that there is good reason it should not be bound by
the forum selection clause.
o Test provides leeway for judges to take improper motives into consideration in relevant cases and
prevent Ds from relying on forum selection clauses to gain an unfair procedural advantage.
o Notice that factors taken into account are similar to those of forum non conveniens, but in the latter,
burden is normally on the defendant to show that stay should be granted. Presence of clauses warrants
different analysis.


Applicability for forum selection clauses in case of fundamental breach
o The test for grant of stay should not take into account the fact that fundamental breach is alleged: the
strong cause test constitutes an inquiry into questions such as convenience for the parties, fairness
between them and the interests of justice, not the substantive legal issues underlying the dispute.
o The case of a claim of fundamental breach does not constitute an exception to the applicability of the
forum selection clause.
o Even if fundamental breach is alleged, this issue is still to be decided by the court chosen in the clause.
o K of adhesion, but both parties are sophisticated in maritime law, aware of industry practices.
Strong cause test for circumventing forum selection clauses
Ratio
CML - Carnival Cruise Lines v. Shute (1991) US SC - P. 393 – Escape forum sélection clause, heavy burden
Facts
Issue
Holding
Reasons

S (from Washington state) booked a cruise with CCLI through a Washington-based travel agent; tickets indicated
that disputes would be settled by courts in Florida.

Consumer had no knowledge or negotiating ability related to this clause.

S slipped on the boat and was injured, and filed suit against CCLI in Washington
Can a court in Washington hear the case?
No
Blackmun (Majority)

Leading case dealing with the enforceability of a forum selection caluse: The Bremen:
o In Breman case, two corporations had choice of forum clause and court said it should be given full effect
absent fraud, undue-influence, or overweening bargaining power.
o Full effect to be given to forum selection clause between two freely contracting businesses, absent a
strong reason why not (party claiming unfairness has heavy burden of proof)
o Crucial difference in business context – here no negotiation expected or occurred.
o However, no generalized statement that non-negotiated forum-selection clause is never enforceable. Can’t
just say that this was a non-negotiable contract so the clause is invalid; boilerplate contracts allow
businesses to charge lower fares, so customers benefit too

From policy standpoint, understand need of cruise ship to limiting the form in which it can be sued in light of fact
that it passes through many jurisdictions.
61
Greg Koenderman – JICP – Winter 2011




Ratio
S doesn’t claim lack of notice of the forum clause, so has to satisfy the heavy burden, and hasn’t done so
Court rejects CoA’s justification that Pl is physically and financially incapable of pursuing in Florida.
As there is no attempt by Carnival to avoid liability, the forum-selection clause must stand. The court explicitly
states that the purpose of the relevant legislation is not to avoid having a PL travel to a distant forum.
No bad-faith here – no evidence that setting of forum in Fld was to discourage pursuit of legit claims
Stevens (Dissent)

Focus on inequality of bargaining powers

Only very meticulous passengers will learn of the clause; most don’t receive it until they get their tickets

Unfair to expect people to cancel vacations at the last minute because they dislike the forum selection clause →
people are “stuck” with it once they get their tickets

Exculpatory or liability limitation clauses are often considered unenforceable – and this is little different

Courts usually look more critically at contracts of adhesion

Forum selection clauses are not enforceable if they were not freely bargained for, create additional expense for one
party, or deny one party a remedy

The Bremen doesn’t apply because it says nothing about contracts of adhesion to which weaker parties are subject

Florida forum heavily advantages CCLI in trial proceedings (e.g., ability to produce witnesses)

Burden on CCLI to litigate in Washington is significantly lower and more doable than that on S to litigate in Florida
Party trying to escape forum selection clause bears heavy burden to show the unfairness of the clause

However, clause is deemed ok.
o We are favouring the strong party
o Makes sense that cruise company have a central forum to sue in. It saves the company time and money
that will presumably be passed on to the consumer (but really?).
o However, remember – plaintiff has advantage of choosing forum, yet procedural rules protect the
defendant. Here, these procedural rules allow defendant to ram through exclusive forum cause in a
adhesion contract.
CVL - GreCon Dimter Inc. c. J.R. Normand Inc. (2005) SCC; p. 399 – QC primacy of choice of forum over jurisdiction
of QC Courts.
Facts
Issue
Holding
Reasons

2 contracts
o (1) Between GreCon (manufacturer) and Norman (importer)

Choice of forum clause
o (2) Normand (importer) and Tremblay (sawmill/buyer)

K takes place exclusively in Qc

Sawmill sues importer, importer sues manufacturer.

GreCon  holds that case must go to Germany (declinatory exception raised under CCP 83 and CCQ 3148(2)
based on choice of forum clause)

Normand  holds that case may be judged in QC (invokes CCQ 3139 – principle action already before Qc Sup Ct,
so court has jurisdiction notwithstanding the choice of forum clause.

Product defect
o Tremblay could get damages from either Norman or GreCon. However, we do not want multiplicity of
lawsuits. Instead, we implead 3rd party into the case for efficiency sake.
o GreCon (3rd party) holds that case must go to Germany because of choice of forum clause.

Problem here is that choice of forum clause is in the K that forms incidental basis of case
o 3139 – Clearly says that QC has jurisdiction over the principle demand, so therefore the incidental
demand.
Which article applies – CCQ 3148(2) or CCQ 3139?
3148 trumps CCQ 3139; therefore full effect is given to choice of forum clause. – Germany is correct forum
Lebel J.

3148(2) ousts Quebec’s authority where parties have chosen by agreement to submit to a foreign authority or
arbitrator

Basis of decision is dispute between 3139, 3148

Decision rests on importance of autonomy of the parties
CCQ 3148(2)

Rules of Private Int’l Law in Quebec are codified and must be interpreted as a coherent whole.

CCQ 3148(2) attaches considerable importance to principle of autonomy of the parties  that parties may by
agreement oust Quebec’s jurisdiction attests to the legislature’s intention to recognize this autonomy

This respect allows for achieving of broader principle of legal certainty in international transactions (stability,
foreseeability, fostering certainty.

These provisions are modelled on Hague Convention on Choice of Court Agreements (shift towards harmonizing
rules of conflict of laws and of jurisdiction)
CCQ 3139

CCQ 3139 calls for jurisdiction over incidental demands and cross-demands. It is an exception to principle that
62
Greg Koenderman – JICP – Winter 2011


jurisdiction in Quebec is established on a case-by-case basis.
But…CCQ 3139 must be interpreted narrowly so as not to indirectly enlarge the international jurisdiction of the
Quebec authority contrary to the specific provisions. The goal of CCQ 3139 is to ensure the efficient use of judicial
resources.
There must be some connexity b/n the principle action and the incidental action.
CCQ 3135

Even if QC had jurisdiction, it could be declined if another forum is better suited to hear the dispute
Ratio
Com’t
Hierarchy

CCQ 3148(2) is a cornerstone principle (para 35)  autonomy of the parties and legal certainty of
international transactions. Courts should defer to the choices made by the parties

Nothing suggests that 3139 was intended to be mandatory or intended to limit autonomy of the parties – it is a
permissive provision  the scope of 3139 is narrower than that of 3148.

Application of CCQ 3148 also precludes CCQ 3135
CCQ 3148(2) trumps 3139; primacy of autonomy of the parties.
o Note that Tremblay didn’t even see the K1.
o Jukier – this marks a departure from autonomy of the will in other areas. This decision goes far and splits
the philosophical trend of the courts.

Only way out of Choice of Forum, is to argue against the drafting of the Clause in the K (or any other technique to
vitiate a K). Not only have to identify the jurisdiction you choose, you must also clearly exclude all other jurisdiction.
Gilles Thibeault, “Application of the Forum Selection Clause”, p. 412, 2010
Choice of forum clause is common in interprovincial and internation contracts. QC CoA provided a list of principal criteria to be
respected in order to find a valid forum selection clause:
1. Must unequivocally recognize the competence of the designated court, to the exclusion of all others. Otherwise it will
simply be recognized as recognition of the courts competence.
2. A QC court can still decline its jurisdiction if there exists a more competent forum: forum non conveniens.
Cites Spar Aerospace for test to determine if another jurisdiction is better suited to hear the case – Real and Substantial Connection
Test.
THE PERSONAL NATURE OF THE RIGHT TO INVOKE THE JURISDICTION OF
THE COURT
Before, we were examining where to sue. We are now seeing who can sue.
In order to invoke jurisdiction of the court (assuming right subject matter and jurisdiction), there must be…
(1) Legal capacity to sue (or be sued)
(2) A genuine legal issue or dispute (live controversy)
(3) A personal stake in the matter
(1) LEGAL CAPACITY TO SUE (OR BE SUED)
o Minors, incapable majors…cannot sue. Still others are able to sue in their name. Art 59 CCP, ON Rule 7.
o QC art. 61 CCP – Legal persons who sue must be represented by an attorney. Corporations cannot be selfrepresented litigants.
o CCP 165 para 2– Motion to dismiss…
o 21.01– Motion to strike, PL is without legal capacity, or Def does not have legal capacity to be sued
(2) RAISE A GENUINE LEGAL ISSUE OR DISPUTE (A LIVE CONTROVERSY)
o Courts will not hear Moot Issues
o Exception: Government may ask for a reference (abstract legal question). However, private references are not
allowed
o Motion to Strike – CCP 165 para 4 – no controversy, and PL has no interest in the suite. Same as above.
o ON Rule 21.01 – Move to strike out a pleading on the ground that it discloses no reasonable cause of action or
defence
o Declaratory judgment

Art. 453 CCP – “Any person who has in interest in having determined, for the resolution of a genuine
problem, either his or her status or any right, power or obligation the person may have under a contract, a will
or any other written instrument, a statute, an order in council, or a by-law or resolution of a municipality, may,
by way of a motion to institute proceedings, ask for a declaratory judgment in that regard.”

Declaratory judgement – asking the court to declare in advance of an issue, whether you can do
something or not. Not moot b/c it is based on an existing set of facts.

No executable order  Seems to contradict (no actual dispute but interest in declaration).

Examples:
63
Greg Koenderman – JICP – Winter 2011

o
o
o
o
Ambiguous rights in a K – Get judgement of court to see if you may exercise this right before you
actually do so.

Corporation may ask court to declare if municipal tax applies to them or not.

Often in patent infringement cases – ask whether actions will constitute an infringement.
Changed/repealed legislation

Most moot cases related to legislation that has been changed or repealed.

Borowski (1989)

Provision of the CC had been changed after Morgantaler case. There was therefore no point in
deciding the case as legislation and been repealed by the government.
Policy Reasons: Courts do not hear these issues because of a scarcity of judicial resources

It would be a waste of time/resources to step into the legislature’s role to have courts determine moot issues.
Courts also do not hear these cases b/c they do not want to interfere with the role of legislative branch of gov’t to deal
with pressing issues of the day. A court will only intervene when there is a conflict of rights at issue.
Difficult part: Court has discretion to hear case despite mootness:

When the adversarial relationship remains

In the interest of judicial economy (issue would keep coming up and up again)

National importance of society in leaving this matter undecided (ie. Patriation Ref: Sopinka J.)

But no “private reference”
(3) HAVE A PERSONAL STAKE IN THE MATTER (LEGAL STANDING)
o Art 99 – AG can enter any case at Trial level as if it were a party
o Art 492 – At appeal, AG can enter any action.
o CCP 55 – Personing bringing claim must have a sufficient interest in the matter.
o CCP 59 – Cannot plead in the name of another.

Individual affected is the one who must sue (personal stake)
o Cap-Rouge (1985)  See Below

Public interest standing where: Means of getting an issue before the courts where the person pleading doesn’t have
personal interest in the case.

There is a serious issue

Litigant has a genuine interest as a citizen

There is no other reasonable and effective manner in which the issue may be brought to court
o Courts are usually restrictive with public interest standing because of scarcity of judicial resource  Do not want busy
bodies to come to court and spend its time for nothing. However, in certain circumstances, this may be justified.
o Test passed in Borowski
o Test failed in Canadian Council of Church (1992)

There are many refugees that would litigate this!

3rd parties can however get into a case through intervener status (active of friend of the court…)
o Test failed in Alliance for Marriage and Family

First time 3 parents registered on a birth certificate (ON CA). AG does not appeal further.

However, Alliance for marriage and family argue that they meet public interest standing test  want to bring
case to SCC. SCC says there is no standing

Argument against SCC decision – no other way this could be brought to court (flipside of Canadian Council
of Church – parties who have an interest actually do not want things to go forward!). Counter – parents who
are not in agreement with 3rd parent being named could litigate this!
Consumer Protection Act, RSQ, art. 316 p. 2-1 – Deemed interest to sue (statutory ability to sue)
Application for Injunction – a person engaging in a prohibited practice under Title II, etc, president may apply to the court for an
injunction ordering the person to cease engaging in the practice
Interlocutory Injunction – consumer advocacy body that exists for more than 1 year, may apply for an injunction and is deemed
to have the interest required for that purpose. [This is an example of someone having statutory ability to sue, who otherwise
wouldn’t have the ability].
Motion for Contempt of Court – if a motion under this section is not complied with, a motion for contempt of court may be brought
by the president…
CVL – Cap-Rouge v Cdn (Min of Communications), 1985, Fed Crt of Cdn p. 4– Municipality does not have sufficient interest to
plead
Facts: Large antennas erected in town by Telemedia which interferes with the AM/FM, stereos, etc of 64% of the town’s ratepayers. The
licence to erect the tower was issued by the Canadian Minister of Communications. Town is seeking to have the approval for the erection
of the tower set aside. Ministry moved to have the pleadings struck out on the basis that the plaintiff town has no interest in the matter
and that the remedy against the defendant was unfounded.
Issue: Does the Plaintiff have sufficient interest in the matter? [NO, defendant’s motion to strike allowed]
Maj (J. Denault): Municipality cannot plead on behalf of another person, and they did not claim a personal right to justify remedy

Plaintiff claimed to represent its ratepayers and had sufficient interest to act on their behalf b/c they were complaining of nuisance
which affected them, and also b/c they had represented ratepayers to the Ministry in the past.

QC CCP 55 – Whoever brings an action at law…must have sufficient interest therein [6]
o In order to institute judicial proceedings, the plaintiff must have the authority to do so and sufficient interest, in other words, it
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Greg Koenderman – JICP – Winter 2011
must find a benefit and utility in them which will have the effect of altering or improving its legal situation.[7]
Municipalities do not have the authority to plead on behalf of someone else.
QC CCP 59 – A person cannot use the name of another to plead, except the Crown through authorized representatives.
o Municipality therefore cannot plead – Only the person having the right can act if his right is denied or disputed: “It is not
sufficient, to bring an action, for a right to exist; there must also be an injury to that right, which produces the interest, and
the latter alone justifies the bringing of an action”.

The municipality did not claim any separate, person right of its own such as would justify the remedy sough.
Ratio: To plead on behalf of another, a person must have the authority to do so, and sufficient interest. [7]


CML/CVL - Borowski v. Canada (1989) SCC, p.2-6; Mootness Doctrine: 1) live controversy, 2) discretion to decide
Facts
Issue
Holding
Reasons
J.
Sopinka

Borowski is attacking s. 251 of the Criminal Code, which allowed for limited access to therapeutic abortions (argues
that all abortion should be illegal).

Before this case even made it to the SCC, Morgantaler was decided, which struck down all prohibitions on
abortions.

This then brings up serious issues of standing, justiciability, and mootness.
Is this case moot? Is it worth exercising judicial discretion to hear this case nonetheless?
The case is moot, and not worth using discretion to hear it.
The General Doctrine of Mootness

Court may decline to hear something that is merely hypothetical or abstract – court decision will not have the effect
of resolving some live controversy which effects the rights of the parties.
Two-step analysis:
1. Determine whether there is a tangible and concrete dispute not only when the action or proceeding is
commenced but when the court is going to give its decision  “live controversy test”. If yes, then
2. Should the court exercise its discretion to hear the case? (default is moot cases are not heard)

In this case: none of the relief claimed for is relevant any longer. Raising a constitutional question cannot be the
only basis for hearing before the court.
Exercise of Discretion

Sometimes, even in the absence of a live controversy, there still remains a reason to go to court.

There are 3 things courts must consider before exercising their discretion in hearing the case. Court considers the
extent to which each of the 3 are present, but not mathematical [42]:
1.
When there are collateral consequences (i.e. remaining liability, investment of interveners, etc)
2.
But there must be a concern about judicial economy (looking at moot cases must be worth the cost to
the court)
3.
The court must demonstrate awareness of its adjudicative function – must not become legislators
Ratio
Conclusion for this case

Although it raises a question of public importance, it is not clear whether it is in the public interest to decide on this.

It is not up the court to make an abstract pronouncement on the rights of a fetus.
Courts must ask…
1- If there is a live controversy
2- If not, whether it should exercise discretion to hear the case
Canadian Council of Churches v. Canada (1992) SCC p. 2-11; Public Interest Standing Test
Facts
Issue
Holding
Reasons
J. Cory


CCoC brought claim that many of the amendments to the Immigration Act (in 1992) violated the Charter.
The AG of Canada brought a motion to strike the claim on the basis that the council did not have standing to bring
the action and had not demonstrated a cause of action.
Does the CCoC have standing?
No
Definitions of standing in CML countries:
UK
o
An individual has standing in public law to litigate a question of public right if
(1) it is a question of an impugned right that simultaneously directly affects the individual,
(2) if the individual has suffered special damaged,
(3) or if it is a local authority looking out for the rights of its citizens
US
(1) if the person has suffered actual or threatened injury,
(2) if the injury can be fairly traved to the challenged action,
(3) if the injury is likely to be redressed by a favourable decision.
o
Even if all three conditions are met, the court can still deny standing for pl’s with abstract questions of wide public significance.
o
This is all about deference to the legislator
Canada

Traditionally
o (1) Is there are serious issue raised as to the invalidity of leg?
o (2) Pl needs to show that either that she has been directly affected OR has a genuine interest as a citizen
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Greg Koenderman – JICP – Winter 2011
o
Ratio
(3) AND that there is no other reasonable and effective manner in which the issue may be brought before
the court. [This is usually the branch where Public Interest Standing fails].

Post Charter
o The Charter kind of changes everything because it required a generous and liberal approach to standing.
o Emphasized the fundamental right of the public to government in accordance with the law, although there
is still a concern about the resources of the court and the need to screen out busybodies.

Should the test be exanded?
o No – it is generous enough.

In this case
o The first two requirements are satisfied: the CCoC has shown there is a serious issue and is affected by
the fact that it helps so many refugees

BUT it fails on the third requirement – there are other ways to resolve this  refugees could bring a claim and they
are more directly affected than the CCoC.

CCoC raised concerns that refugees are in a position where it is difficult/impossible for them to bring claims,
however, refugees go to administrative tribunals all the time.

There is lots of opportunity for the law to be challenged by better parties and therefore the CCoC doesn’t have
standing.

Besides – they should just be interveners.
Review of Statement of Claim to Determine if it Discloses a Cause of Action
Principles which guide a court in considering whether a reasonable cause of action has been disclosed by a statement
of claim: “assuming the facts as stated in the statement of claim can be proved, it is ‘plain and obvious’ that the plaintiff’s
statement of claim discloses no reasonable cause of action?...if there is a chance that the plaintiff might succeed, then
the PL should not be driven from the judgement seat”. [44]
3 requirements of standing:
1) There is a serious issue
2) Litigant has been directly effected or has a genuine interest as a citizen
3) There is no other reasonable and effective manner in which the issue may be brought to court
Alliance for Marriage and Family v. A.A. SCC 2007, p. 2-17; Intervener seeks to Appeal as Private applicant: Denied
Facts
Group alleges that CoA’s decision to allow two mothers name on the birth certificate destroys their concept of family. It
had intervener status in CoA. The parties not contesting decision. Note: AG was also comfortable with the decision, was
not going to bring it forward.
Does the Alliance have standing? [NO]
Issue
Holding
No – cannot revive litigation in which party has no personal interest.
Reasons 
Question is raised is not about whether the underlying application for leave to appeal involves issues worthy of
J. LeBel
consideration, or whether the C of A’s decision was well founded

What the applicant is attempting to do is to substitute itself for the AG in order to bring important legal questions
relating to the development and application of the law before this Court.

Alliance was merely an intervenor in the C of A, there to defend its view of the development of family law, but it had
no specific interest in the outcome of the case.

SCC has never allowed a private applicant to revive litigation in which it has no personal interest.

No Personal standing, and cannot satisfy test to receive Public Interest Standing from Cdn Council of Churches.
Private Applicant cannot substitute itself for a party where it has no personal interest – upholds Cdn Council of
Ratio
Churches

Apply Canadian Churches: maybe group should be allowed: they have no other recourse! Much more likely in Churches that
another refugee family would challenge legislation, while much less likely that another same sex family will come forward and
litigate this issue.

Contra: There will be other cases in which there will be an attempt to put three names on a birth certificate – and the parties are
in disagreement (here, they were in agreement)
Vexatious litigants
Deprive one of Standing:

Do not mix up vexatious actions and vexatious litigants
o Litigant  Fabrikant (keeps taking vexatious actions)  ex: s.140

In some provinces (7 total), specific legislation can have someone declared a vexatious litigant. Before they
take an action, they must get permission to do so. Person is deprived of their otherwise good standing to
sue.

Problems

Who can declare someone a ‘vexatious litigant’?

Taking away a constitutional right to appear before a fair (open) and impartial tribunal.

Why can’t we just say that it is part of the inherent jurisdiction of the court? (art. 46)
Inherent jurisdiction kicks in when a proceeding has been commenced. Courts do not have
inherent jurisdiction to stop people from coming through the door.
CCP art. 46 – codification of Inherent Jurisdiction of Superior Courts. (CCP art. 2+20+46 =
basically gives courts unlimited power)
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Greg Koenderman – JICP – Winter 2011
CVL - Productions Pixcom Inc. v. Fabrikant [2005] QCCA; p. 20, Vexatious Litigants declaration

F was a professor at Concordia who murdered several other professors.

Had a history of launching unfounded actions, including doctors treating him, and the Cdn Correctional System.

He was declared as a vexatious litigant, with no regard for the justice system, using articles 2, 20, and 46 CCP.

He cannot bring an action to court without authorization.

He submits a request against Pixcom who made a tv/movie about him that was one sided and full of lies.

His request was rejected, Fabrikant appeals this decision
Can Fabrikant’s new claim be heard in the Court? [NO]
Dalphond J.A.

Right to the tribunals is a fundamental right that must not be abused (Art. 23 of Charter of HR&F).

However, a court has the power to ensure that its process is not abused without any reasonable ground so as to be
vexatious and harassing.

Nevertheless a request of proceeding must be field in accordance with the CCP, which was not in this case (but
even if procedure was followed, leave to appeal would have been refused because…)

QC Rule of Practice of the Court (s. 84) can allow someone declared a vexatious litigant.

Chief Justice concluded that the intended proceeding is another example of excessive or unreasonable exercise of
a litigious right.

F failed to discharged burden of showing his claim to be serious  appeal dismissed

Access to an independent tribunal is a fundamental right, but someone abuses that right the court can
declare him a vexatious litigant

Once litigant is declared vexatious, he bears burden of proof to establish prima facie the seriousness of
the claim for which he is seeking authorisation [35]
Facts
Issue
Reasons
Ratio
PRESERVATION OF RIGHTS: PROVISIONAL AND PROTECTIVE MEASURES

Pending litigation
o Generally, it takes 18 months to 2 years before action instituted is actually heard by the court (best case!). This is
potentially worrisome for the plaintiff because in between the time that he sues and pending this litigation, so many
things can happen. The plaintiff may need, pending litigation, to take protective measures to preserve his rights.
o 3 kinds of rights protected:

Protect or preserve substantive rights pending the judgment on the merits (Interlocutory Injunction)

Protect ability to execute the ultimate judgment (preemptive action to preserve execution value)(Mareva)

Protect evidence you will need to make your case (Anton Pillar Order)
o
Procedural translations

Interlocutory Injunction (protects substantive Rights)

Mareva Injunction  Conservatory seizure (“freezing order” to freeze assets so that defendant does not
liquidate them) (Protects ability to execute judgment)

Anton Pillar Order  Evidence today is increasingly electronic. This protects evidence from destruction.

Some common features
o They all seek similar objectives  All protect plaintiffs rights pending litigation in order to make sure that the final
judgment will not be futile. Prevents situation where you have a paper judgment, but useless in reality.
o Don’t want any of them to turn into a pre-trial within a trial

If the provisional measure is granted to the plaintiff, it can be that at the ultimate trial the plaintiff will lose 
irony.

Most controversial part of these measures is the level of proof required by the plaintiff since it is not very
high.

Since we do not want a whole trial over these issues, we only usually require a prima facie right or
“appearance of right”
o Level of proof is usually only an appearance of right
o Extra risk involved when proceeding is ex parte (defendant not there)
o Usually situation is urgent (but in these situations, should there be a different level of proof required).
o Anton Pillar Order is always taken ex parte
o Whenever Courts grant a right ex parte suspicion should be raised.

Note: Injunctions are appealable, but appeal does not suspend order unless judge says so (yes you can appeal but the
injunction does not go away until decision of appeal) (760 CCP)
ALI/Unidroit Principle 8 – Provisional and Protective Measures
8. Provisional and Protective Measures
8.1 The court may grant provisional relief when necessary to preserve the ability to grant effective relief by final judgment or to
maintain or otherwise regulate the status quo. Provisional measures are governed by the principle of proportionality.
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Greg Koenderman – JICP – Winter 2011
8.2 A court may order provisional relief without notice only upon urgent necessity and preponderance of considerations of fairness.
The applicant must fully disclose facts and legal issues of which the court properly should be aware. A person against whom ex
parte relief is directed must have the opportunity at the earliest practicable time to respond concerning the appropriateness of the
relief.
8.3 An applicant for provisional relief should ordinarily be liable for compensation of a person against whom the relief is issued if the
court thereafter determines that the relief should not have been granted. In appropriate circumstances, the court must require the
applicant for provisional relief to post a bond or formally to assume a duty of compensation.
Interlocutory Injunction








It is an extraordinary recourse (all 3 are), which means that it should be granted very restrictively. However, the injunction
remains one of the most widespread procedures in court!
Required because of the historic development of the injunction. It is a creature of the English CML branch of equity. It was
imported in Quebec in 1975 with a lot of controversy and difficulty.
Unlike other remedies, an injunction does not sanction past conduct. An injunction is forward looking  constrains future
behavior.
Every equitable remedy is entirely discretionary since ultimately, it falls within the discretion of judges instead of being a
remedy as of right.
o It is exceptional to the remedy at CML
Definition at 751 CCP
o “An injunction is an order of the Superior Court or of a judge thereof, enjoining a person, his senior officers, agents or
employees, not to do or to cease doing, or, in cases which admit of it, to perform a particular act or operation, under
pain of all legal penalties.”
o So Superior Court has jurisdiction unless legislation grants powers to statutory court.
o Can be negative or positive injunction (stop or cease vs. do)
o “Under the pain of legal penalties”  Contempt of court (criminal law sanction for not obeying court orders – we talk
about this in discovery).
753 CCP, Rule 40.02
o Can be heard ex parte (urgent, in secret).
o Because they prevent the defendant’s right to be heard, they only last for 10 days.
Not like specific performance
o Specific performance is the remedy you are asking for at trial (sometimes dubbed a permanent injunction). It is
determined on the merits
o An interlocutory is something you ask pending litigation. The conclusion sought at trial might not be specific
performance. It is not a substantive remedy and is not determined on the merits.
WHEN DO YOU GET AN INTERLOCUTORY INJUNCTION?
o
Traditional view  Three prong test

CCP 752(2) gives 2 prongs; 3rd comes from CML
1)
There is a serious question to be tried (not an assessment on the merits and not even a prima facie
test)

RJR Macdonald Inc. v Canada says threshold is lower than prima facie – must just show that
claim is not frivolous or vexatious (very low!)

Remember: practically difficult otherwise, also policy that we do not want a trial within a trial
2)
Petitioner will suffer irreparable harm if injunction is refused

Not the extent of the harm but the nature of the harm

If you are suffering only monetary harm, court should not grant injunction. However, if you suffer
little monetary harm but harm that cannot be later remedied by money, it may be sufficient.

Note however that a lot of harms are irreparable although you are suing for damages. This does not
mean they are irreparable though (ex: loss of clientele, loss of good will, loss of reputation, breach
of confidentiality)

Irreparable harm in a private context in RJR Macdonald Inc. v Canada – normally $ in private law
case is reparable, however, it is irreparable in RJR because we are dealing with Charter right
(freedom of expression, to go back to old packages) and not damages. So in public law context this
becomes irreparable as no one will compensate for loss of $ (not gov, smokers would have to pay
higher cost of packaging). Since there is no remedy to get money back becomes irreparable.
3)
Balance of convenience between parties is weighed

Who will suffer harm and is harm greater re: issuing injunction or not)

Gives court ability to play around with the test based on strength of other prongs  discretionary
element.
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Greg Koenderman – JICP – Winter 2011

This is a globalized test – not three distinct tests but rather 3 prongs. Therefore, if court believes you really
have a serious question, it will be less stringent with irreparable harm.

Questioning the traditional test

See Groleau (2008) 53 McGill LJ 269

Essentially: we have to question the low threshold test.

First prong is particularly low (works only when facts are complex and based on not one single
question of law or where we are really preserving rights)

Should be a “a priora” test – bump up a threshold level

If you look at most cases that grant injunction, once petitioner gets it, case is usually over (ex:
labour matter – right to strike, confidential information case). Case is usually practically solved
(although not legally solved). Since these injunctions practically take the place of real judgments,
then how can we justify such a low threshold?

Injunctions really aren’t exceptional in practice.

RJR recognizes a higher threshold where the Interlocutory Injunction will practically solve the issue.
The problem is this is not a part of the test, and most courts don’t apply it.
RJR – RJR Macdonald Inc. v Canada (1994) SCC p. 2-25; Interlocutory Injunction; stay of Proceedings
Federal government passes the Tobacco Products Control Act, regulating advertising and health warnings of tobacco
products. RJR Macdonald argues that it violates 2(b) of the Charter, asks for a stay of application of the act until the
case is resolved, as well as 12 months after any decision affirming the validity of the act.
Should RJR Macdonald be granted a stay while the case is decided?
Issue
Holding
NO
Reasons Interlocutory Injunction – measure intended to ensure that certain specific acts do not take place until the rights of the
Sopinka
parties are finally determined by the court. Here: new packaging should not be required until constitutionality of
Cory JJ. legislation is decided.
The Test is the same for Interlocutory injunction or a Stay of Proceedings
See Supreme Court Act, s. 65.1 & Rules of the Supreme Court r. 27
Test for applications for Interlocutory Injunction & Stays of Proceedings:
1. Applicant must demonstrate a Serious Question to be tried (lower than Prima Facia)
o NOT a strong prima facie case - rather, just a claim that is not frivolous or vexatious. Reasons for this is
difficulty in deciding complex factual and legal issues based on the limited evidence available at this point.
Also, risk that a tentative determination on the merits will be made before full evidence.
o TWO exceptions to this rule, where a review of the merits will be necessary:
i) Result of interlocutory injunction will in effect amount to a final determination of the action.
ii) Question of constitutionality that is a question of law alone (not really relevant for us)
2) Irreparable Harm (will result if relief is not granted): Irreparable refers to NATURE of the harm, rather than the
magnitude. Monetary loss will not usually amount to irreparable harm
3) Balance of Inconvenience to the Parties: Numerous factors taken into account. Public interest is important, as it
means that you have to take into account harm that could be suffered by those other than the parties.
Courts will use a three-part test to determine whether a stay or interlocutory injunction will be granted.
Ratio
o 2 reasons this is not a perfect case:

Not interlocutory injunction but rather stay of proceedings (however, court says that they follow same test)

Public law issue (as opposed to private law)
o However, good illustration of 3 prong test
Facts
CCP 751-761; INJUNCTION
751
752
753
An injunction is an order of the Superior Court or of a judge thereof, enjoining a person, his senior officers, agents or
employees, not to do or to cease doing, or, in cases which admit of it, to perform a particular act or operation, under pain of
all legal penalties.
In addition to an injunction, which he may demand by a motion to institute proceedings, with or without other conclusions, a
party may, at the commencement of or during a suit, obtain an interlocutory injunction.
An interlocutory injunction may be granted when the applicant appears to be entitled to it and it is considered to be necessary
in order to avoid serious or irreparable injury to him, or a factual or legal situation of such a nature as to render the final
judgment ineffectual.
The application for an interlocutory injunction is made to the court, by written motion, supported by an affidavit affirming the
truth of the facts alleged and served upon the opposite party, with a notice of the day when it will be presented. In case of
urgency, a judge may nevertheless grant it provisionally even before it has been served. Notwithstanding the foregoing, in no
case, except with the consent of the parties, may a provisional injunction exceed 10 days.
Ontario Courts of Justice Act 101 and 102 – Interlocutory Orders
Ontario Rule 40 – Interlocutory Injunction
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Greg Koenderman – JICP – Winter 2011
Protection of the object of litigation
FREEZING ORDERS – MARIVA INJUNCTION (SUBSET OF GENERAL CATEGORY OF INJUNCTIONS)



Mareva Injunction: Orders the freezing of assets of the defendant, even if in the hands of a third party
o In the particular case (Mareva case - UK), the issue revolved around ownership of the vessel. One party took motion
ex-parte and Denning ordered this injunction ex-parte. First came into Canada in 1979 in matrimonial dispute.
However, was not really entrenched until 1985 (Etna).
Important in cases of fraud or more generally, when there is a fear that the defendant will dissipate assets or transfer
them out of the jurisdiction making enforceability of the final judgment difficult.
The injunction does not encompass the dispossession of the assets of the defendant but merely an order making it
impossible for the owner of the assets to part with them or transfer them (cages assets as opposed to taking them
away).

The Mareva is said to be more worrisome than the interlocutory injunction – Why?
o Mareva seems like a particular application of an interlocutory injunction
o However, it is more worrisome

(0) Issued ex-parte – any this always raises our concerns.

(1) We are affecting the right of ownership

Answer: This is an action in personae, not an action in rem

(2) If it is an action in rem, courts generally do not have geographic jurisdiction if the property is not located in
the forum. So if we are saying it applies against the guy and not the thing, it can apply against all property,
wherever it is  now called the Worldwide Mareva.

(3) Against liberty of defendant (can he conduct business and use property as he sees fit)?

Answer: all injunctions restrain liberty!

Also, its purpose is to secure a judgment that you will ultimately be able to execute – however, we don’t know
if you will actually have a judgment in your favour. Therefore, this injunction is giving you pre-judgment
execution rights.

Also gives one creditor priority position over all other creditors.
o So should the same test apply as with interlocutory injunctions

If a plaintiff takes a Mareva Injunction in circumstances where it is not appropriate, the plaintiff can later be open to action in
damages  risk!
o Therefore, we see a trend where plaintiffs put up security for claim of damages in this case.
o When will defendant be able to get damages?

Rare, because if court is convinced that injunction is justified, why put risk on plaintiff?

New idea by the court to open up plaintiff to damages, but generally a very high standard of risk of
dissipation of assets.

What power of the court justifies the creation of these new procedures (i.e. Mareva injunction)
o Inherent jurisdiction of superior courts

Quebec
o Quebec Superior Courts have same inherent jurisdiction as other provinces, however, the difficulty is that Quebec has
always had a “seizure before judgment” (motion, CCP 733).
o Seizure before judgment vs. Mareva injunction

Similarities

Both are ex parte motions

Share same objective (diminishing jeopardy of recovery debt)

Both are exceptional measures

Differences

In personam order  Worldwide Mareva
o However, seizure before judgment is in rem, therefore courts are limited to dealing with
assets in Quebec.
o SO if property is located in Quebec and action is in Quebec, take seizure before judgment,
if elsewhere, take Mareva.

In seizure before judgment, property is put in the hands of the state pending judgment, as opposed
to just being frozen in the hand of the defendant.
o Look at CCP arts. 2, 20, 46 – unclear whether together can give statutory authority of inherent power for other courts
of Quebec.
o
o Art 740 – where there is a seizing order, the case is given preference (to be heard quickly)

In some instances, the plaintiff may want not only the assets to be frozen, but also assets to be taken care of.
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Greg Koenderman – JICP – Winter 2011
Ex: immovable property like a shopping center – just freezing it isn’t enough because the defendant can stop doing
maintenance as he may potentially lose it.
In these cases, plaintiff would want to take a safeguard measures  judicial sequestration (742 CCP, 41 & 45 Rule
Ontario)  court appoints 3rd party to administer (or “Receiver” in Ontario). Claimant must demonstrate a prima facia
case…that there is reasonable worry that the property is going to deteriorate.
So sort of like Mareva since takes away right of ownership of the defendant, but implies more than just a freezing
order.
o
o
o
CML - Tracy v. Instaloans (2007) BC CoA, p. 36; Mareva Injunction; freezing assets, test
Facts
Issue
Holding
Reasons
Saunders
Ratio
Com’t


Got a “payday loan” in the US with no collateral and huge interests
A class action was taken against payday loans companies for charging interest that is contrary to the criminal
code.

Tracy was the representative plaintiff which took a Class Action against a company called Instaloans

Instaloans’ assets were cash and could easily be removed from the jurisdiction

Case talks about how globalized business transactions mean assets can move throughout the world in great
speed. While Class Action was pending in BC, instaloans sold to a competitor in another jurisdiction

The representative plaintiff, realized that even if they got judgment, it would be hard to get anything and thus
applied for a Mareva injunction

Company was nothing but a shell, and so also took personal Mareva against the share holders

Mareva was granted by first instance court.

Instaloans appealed to the BC CoA

CA agrees that Mareva injunction should have been awarded
Should Mareva have been granted?

Mareva upheld against corporation, but not against individual; case was sent back to trial.

Mareva injunction cannot be used as a procedural black mail

There was “strong prima facie case”, BUT the extent of the order has to be specifically defined and in this case the
order should have been narrower to that which was necessary.

Class action was a few million dollars not 35 million.

Thus, to be granted, the Mareva Injunction sought has to be proportionate to the issue at hand (cannot be
used as “procedural blackmail” and cannot be overextensive).
Tougher test is justified to grant an Mareva Injunction:
(1) Instead of just a serious question to be tried, plaintiff must show a strong prima facie case, or at least a good
arguable case (goes to root of belief that we are protecting right to execute judgment).
(2) Balance of Convenience must favour the Plaintiff – Prevent defendant from removing assets required to
satisfy a future judgment, but still allow defendant to continue living/business.
(3) Must show that you will suffer irreparable harm  plaintiff must show real risk of disposal or dissipation of
asset that will render nugatory a judgment.

While you don’t have to prove intention to defraud (high burden), must show an objective fear - some
level of evidence that the defendant will dissipate assets.

Ex: Tracy v. Instaloans – defendant had converted hard assets of the company into cash, but this is not
enough to show that there was a real risk of dissipation of assets.

Fine line

On one hand, can’t just be subjective fear

On the other hand, no actually evidence in Tracy that defendant had started to transfer money


Comments:
o This is the trend these days; not whether granted / not, but the extent to which it is granted.
o Court said, this is discretion of trial judge and unless overriding and palpable error then it will not be
overturned (Housen)
o So judge said no error against company, but error against individual shareholder, because no indication
that they would move assets out of jurisdiction, and thus judgment reversed against them
o AND court said that because this freezes a great amount of D’s assets, there needs to be an effort by the
P to advance the case as soon as possible.
o Judge also asks, to what extent is the Mareva effected by the fact that this is a Class Action?
o Judge says, Plaintiff already benefiting from a number of litigation advantages by the fact that this
is a class action, and the fact that granting a Mareva will compound those advantages.
o And the fact that this is a class action, will play a role in the balancing of the conveniences /
inconveniences
To be granted, the Mareva Injunction sought has to be proportionate to the issue at hand (cannot be used as
“procedural blackmail” and cannot be overextensive).

Interlocutory injunctions are appealable – so how does the standard of appeal play out in injunctive relief?

CA clearly thinks that trial judge was harsh, but Saunders says that unless there is palpable and overriding error,
must defer to trial judgment.
CCP 733, 742 – Seizure before judgement & Sequesteration of Property
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Greg Koenderman – JICP – Winter 2011
733
742
The plaintiff may, with the authorization of a judge, seize before judgment the property of the defendant, when there is
reason to fear that without this remedy the recovery of his debt may be put in jeopardy.
The court may of its own motion, or on application, order the sequestration of property when it considers that the
protection of the rights of the parties so requires.
Sequestration may be ordered by a trial judge when the case is in appeal.
Courts of Justice Act 101 and 104 – Interlocutory judgement
Injunctions and receivers
101.(1)In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted or a receiver or receiver and
manager may be appointed by an interlocutory order, where it appears to a judge of the court to be just or convenient to do so.
Interim order for recovery of personal property
104.(1)In an action in which the recovery of possession of personal property is claimed and it is alleged that the property,
(a) was unlawfully taken from the possession of the plaintiff; or
(b) is unlawfully detained by the defendant,
the court, on motion, may make an interim order for recovery of possession of the property.
Damages
(2)A person who obtains possession of personal property by obtaining or setting aside an interim order under subsection (1) is
liable for any loss suffered by the person ultimately found to be entitled to possession of the property.
Ontario Rules of Civil Procedure 41, 44, 45 – Appointment of Receiver, Interim Recovery of Personal Property,
Interim Preservation of Property
MOTION FOR INTERIM ORDER
44.01 (1) An interim order under section 104 of the Courts of Justice Act for recovery of possession of personal property may be
obtained on motion by the plaintiff, supported by an affidavit setting out,
(a) a description of the property sufficient to make it readily identifiable;
(b) the value of the property;
(c) that the plaintiff is the owner or lawfully entitled to possession of the property;
(d) that the property was unlawfully taken from the possession of the plaintiff or is unlawfully detained by the defendant; &
(e) the facts and circumstances giving rise to the unlawful taking or detention.
RULE 45 INTERIM PRESERVATION OF PROPERTY
INTERIM ORDER FOR PRESERVATION OR SALE
45.01 (1) The court may make an interim order for the custody or preservation of any property in question in a proceeding or
relevant to an issue in a proceeding, and for that purpose may authorize entry on or into any property in the possession of a party or
of a person not a party.
(2) Where the property is of a perishable nature or likely to deteriorate or for any other reason ought to be sold, the court may order
its sale in such manner and on such terms as are just.
Protection of Evidence – Anton Piller Orders


Anton Piller Orders: Interlocutory order that seeks to protect evidence that may be needed by the plaintiff to prove her case. It
orders the defendant to permit the plaintiff to come onto his premises for the purposes of removing evidence  this sounds like
a search warrant (its resemblance to the search warrant is the most dangerous part of the Anton Piller order).
Typically initiated even before the motion to institute proceedings!
o Where does it come from?

Originates in the English C.A. decision of Anton Piller KG v. Manufacturing Processes Ltd (1976), an IP case
dealing with potential infringement of copyrighted designs.

Similarity with Mareva injunction – both created by jurisprudence, in England, same period

At first, people though Anton Piller orders would be restricted to IP cases. However, it is not limited to
particular cases. In particular, these orders are actually being used in civil cases (e.g. employment contexts).
o What is basis for such an order?

The ability to grant an Anton Piller order is based on the inherent jurisdiction of the court.

In Quebec, this is recognized by articles 2, 20 and 46.

This was confirmed by C.A. in 2002 in Raymond Chabot case [2002] R.J.Q. 2715

Does not seem to exist in the US.

Exists both in civil and common law in Canada.

Purpose and effect of an Anton Piller order
o Purpose is to preserve relevant evidence that might otherwise be destroyed or concealed by the defendant.

What about the affidavit of documents in Ontario? Does it not serve the same purpose? Even though you can
put all safeguards in place, if the documents are destroyed before the affidavit what good are these
safeguards?
o Effect is to authorize “a private party to insist on entrance to the premises of its opponent to conduct a
surprise search, the purpose of which is to seize and preserve evidence …” (para. 1 from Celanese)

Dangers
o Ex parte (usually in the judge’s chambers) because it is premised on surprise.
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Greg Koenderman – JICP – Winter 2011
o
o
o
Interlocutory (so justification on merits of the case is not made out).
Rushed circumstances (often before the action is served).
Approximates search and seizure in civil cases which is technically not available (General rule is that there is
no search warrant outside the criminal context; proof is needed. These orders go against this. The only difference: in
Anton Piller Order no forcible entry… but contempt if you don’t comply = “distinction without a meaningful difference”
(Binnie Celanese).

Result of dangers
o Remedy is seen “at the extremity of the court’s powers” (Anton Piller KG)
o Termed a draconian order (Celanese)
o Exceptional remedy
o “A nuclear weapon” of the private law!
o However, despite these restrictive characterizations, Anton Piller orders are increasing, largely due to their usefulness
with regard to electronic evidence where documents are easily deleted, moved or destroyed (Celanese).

Seizure of electronic evidence
o Vast majority of these orders deal with this kind of evidence.
o Example of Anton Piller Order: “Authorize the bailiff charged with the execution of the writ to remove the computer
equipment and accessories including hard drives, external hard drives, servers, memory keys, diskettes and CDs
belonging to defendant to be moved to the offices of the bailiff.”
o Often computer expert accompanies those executing the order.
o Where is seizure done? Anywhere.
o In defendant’s business premises, home, car

Criteria for an Anton Piller order
o Plaintiff must demonstrate a strong prima facie case
o Damage to plaintiff must be very serious
o Convincing evidence must exist that defendant has in its possession incriminating documents or things.
o It must be shown that there is a real possibility that the defendant may destroy such evidence before discovery (this
is the hardest to show) (How do you prove this? Past evidence of character).

Rolling “Anton Piller Order”
o In certain circumstances the order can apply to unnamed persons who fall within a class having certain evidence
(Vinod), and
o To any locale where that evidence may be found during an extensive period of time.

Need for safeguards (developed by courts)
o Potential Charter Infringements s. 8?
o Orders appoint a supervising solicitor (acts as officer of the court) who is independent of the plaintiff and who is to
be present at the search to ensure its integrity

Supervising solicitor is present to explain to the defendant what is occurring, to take a written record of what
is being seized.

If seizure is properly carried out, the material should go the bailiff only. Neither the defendant’s nor the
plaintiff’s lawyer will have seen the material.
o Orders should be carefully drafted to specify what may be seized and when seizure may take place.

It used to be that orders were drafted too liberally. There is a movement within the judiciary (in Australia there
are model Anton Piller orders that judges must follow). In Canada, there are no models. One judge in B.C. is
trying to come up with some models to contain within the order a template for judges so that safeguards are
built into the order.
o Allowance of some time for defendant to obtain legal counsel.

Abuses
o Improper order in the first place – Court committed abuse

Remedy: Apply to the court to annul or vary the order
o Proper order, but seizure of confidential information (Subject to solicitor-client privilege)

Remedy: Have unlawfully seized material returned

Remedy: Disqualify the lawyers involved (Celanese)
o Proper Order, but abusive execution
o Remedy: Award of damages against plaintiff
o Award of full-indemnity costs (covering extra-judicial legal fees) cf. Vinod Chopra
o More often than in Mareva injunctions.

Sanctions
o Potential to have solicitors removed (Celanese)
o Reversal of Anton Piller order
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Greg Koenderman – JICP – Winter 2011
o
Award of damages against plaintiff (who may be required to provide an undertaking to pay damages in event order
turns out to be unwarranted)
CML - Celanese Canada Inc v. Murray Demolition Co. (2006) SCC; p. 47; Anton Pillar Order
Facts
Issue
Holding
Reasons
Binnie J.

Celanese employed Murray Demolition (MD) to demolish its plant. MD allowed Canadian Bearings (CB) access the
demo site. CB here attempted to copy various proprietary processes and equipment.

Celanese now suing Canadian Bearings and others for stealing its tech.

Judge granted Celanese ex parte application for an Anton Piller order against Canadian Bearings and others.

In course of search, approx 1400 e-docs thought to be relevant but not yet screened for solicitor-client privilege
were downloaded by BDO (Celanese’s accounting firm).

Cassels Brock (Celanese’s lawyer) then copied these from BDO, and didn’t tell BLG (Canadian Bearing’s lawyer).

Turns out privileged communications were included in these copied docs.

BLG finds out, sends letter notifying Cassels Brock of this, but Cassels Brock doesn’t hand over these
communications but instead says they’ve deleted them.

Canadian Bearings brings motion to disqualify Cassels Brock from continuing to represent Celanese.
What is test for disqualification - which parties bears the onus to show the prejudice arising from disclosure of
solicitor and client privileged docs?
Celanese and its lawyers had the onus to rebut the presumption of a risk of prejudice and they failed to do so

Court starts by telling you everything you’d ever need to know about Anton Piller orders and how they should be
carried out.

Then moves on to look at whether there’s possibility that Cassels Brock obtained confidential information that may
be to the prejudice of Canadian Bearings, and should therefore be removed from representing Celanese.
Anton Piller Orders:
Overview on the orders:

Although once an exception, APs are often issued now in ordinary civil disputes.

Easier access leads some counsel to take lightly “the very serious responsibility imposed by such a draconian
order.” (para 30)

Strength and weakness of APs is that they are made ex parte and interlocutory (no cross-examination, supporting
affidavits, etc).

They’re usually obtained and implemented in circumstances of urgency, and they’re time limited.
4 essential conditions for Anton Pillar Order:
1. Plaintiff must demonstrate a strong prima facie case
2. Damage to P of D’s alleged misconduct, potential or actual, must be very serious
3. Must be convincing evidence that D has in its possession incriminating documents/things.
4. Must be shown that there is a real possibility that the defendant may destroy such material before
discovery process.
Terms of the AP:
Safeguards should be explicitly laid out in the AP order itself. Procedure around them should involve the following:
Basic protection of the parties’ rights, through the following:
1. A supervising lawyer who’s independent of P and her solutions.
o This person ensures execution of AP is undertaken “as careful as possible and with due consideration for
the rights and interests of all involved.”
2. Unless unusual circumstance, plaintiff should pay damages if the order turns out to be unwarranted or is
badly executed.
3. Scope of order should be no wider than necessary, and no material should be removed from site unless
clearly covered by order’s terms.
4. There should be a term in the AP that sets out procedure for dealing with privileged docs so that the
defendant can advance claims of confidentiality over docs before they come into plaintiff’s possession.
o Criminal search warrants provide guidance here: see 54 in Coursepack.
5. Order should contain a limited use clause (items seized may only be used for purposes of impending
litigation.)
6. Order should state explicitly that def is entitled to return to court on short notice to discharge order or vary
amount of security.
7. Order should provide for seized materials to be returned to defendants as soon as possible. (p 54)
Proper conduct during the search:
1. Search should be commenced during normal business hours when defendant’s lawyer more likely to be
reached for consultation.
2. Premises shouldn’t be searched and nothing should be removed w/o presence of defendant or one of her
responsible employees.
3. Persons conducting search should be specified in the order.
4. On site, Plaintiff’s counsel should serve copy of statement of claim and the order to defendant, and in plain
language explain the nature and effect of the order.
5. Defendant should be given reasonable time to consult with counsel prior to permitting entry into premises
6. Detailed list of all evidence seized should be provided by supervising solicitor to defendant for inspection
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Greg Koenderman – JICP – Winter 2011
7.
8.
(and to verify she’s got everything back after seizure)
If # 6 isn’t possible, docs should be placed in custody of supervising solicitor, and defendant’s counsel should
be given reasonable opportunity to review them (for lawyer-client privilege) prior to release of them to plaintiff.
If ownership of material disputed, should be provided for safekeeping w/ defendant’s lawyers or supervising
lawyer. (p 55)
Procedure for after the search:
1. Order must make clear responsibilities of supervising solicitor continue beyond search to matters arising out of
search.
2. Supervising solicitor required to file report w/court w/in set time limit describing the execution, who was present
and what was seized.
3. Court may want to make plaintiff file and serve motion for review of execution.
o In this case, draft order placed before motions judge was deficient -there was no provision to deal with solicitorclient privileges.
Moving on,
When should counsel be removed for possession of confidential information?
as per Macdonald Estate:
o There’s a presumption that confidences will be used to prejudice of client unless receiving solicitors can show
that a reasonably informed person would be satisfied that no use of the confidential info would occur.
o Only clear and convincing contrary evidence rebuts presumption (para 42).
o NO onus by moving party to provide further evidence as to the nature of the confidential info beyond what’s needed
to establish that the receiving lawyer has info that’s w/in scope of lawyer-client privilege.
o In this case, CB has discharged its onus, and Court of Appeal erred in placing onus of proof on CB.
Appropriate Remedy:
o If a remedy short of removing the searching solicitors will cure problem, it should be considered.
o CBA gives 6 factors to use to decide whether a lawyer should be removed (para 59). Court applies each to this
case:
1. How privileged info came into Cassel Brock’s hands: Court says it was unintended buy avoidable. Inadequate
precautions were taken.
2. What Cassels Brock did when realized they had privileged docs: CB failed to have these docs listed at search
site, and then declined to return material over to BLG.
3. Extent of review made of the privileged material: CB deny any “substantial review” of privileged documents, but
at same time had classification names for them, so must have looked at them in some detail. Court can’t be
sure.
4. Contents of the privileged communications and degree to which they are prejudicial: CB failed to discharge
onus of identifying extent to which accessed privileged info while classifying material and now have to shoulder
consequences.
5. Stage of litigation: Litigation is at an early stage, so removing counsel will not have same “extreme” or
“devastating” effects it would have at a later date.
6. Potential effectiveness of firewall or other precautionary steps: Any appropriate firewalls were not in place prior
to occurrence of the mischief.
Ratio
Thus, Court finds that Cassels Brock need to be removed from representing Celanese b/c under the MacDonald test, a
reasonable person wouldn’t be satisfied that no use of confidential information would occur. (para 66)
4 essential conditions for Anton Pillar Order:
1. Plaintiff must demonstrate a strong prima facie case
2. Damage to P of D’s alleged misconduct, potential or actual, must be very serious
3. Must be convincing evidence that D has in its possession incriminating documents/things.
4. Must be shown that there is a real possibility that the defendant may destroy such material before
discovery process.
CMN – Vinod Chopra v John Doe, Federal Court; 2010, p. 61- Rolling Anton Piller Order; Review of APO
Facts: APO issued ex parte to search for copyrighted movies at unnamed locations, mostly flea markets and travelling venders.
Issue: Was the Rolling Anton Piller Order validly issued? [NO]
Maj (J. Hughes):

Rolling APO – defendants are not known and order is issued against John Doe; limited to cases of itinerant sales or flea markets;
potentially binding on all who carry on trade in certain types of consumer goods.
Evaluation of Anton Piller Order (See also p. 66):
1. Conducted to determine if the four criteria for obtaining the order (Celanese) have been met;

Difficult to satisfy the steps, particularly the 4th step.
Review of “Rolling” APO must also consider:
2. Have the Plaintiffs established that the damage, potential or actual, is very serious?
3. Have P provided convincing evidence that the defendants have in their possession incriminating documents or things?
4. Have P established a real possibility that the D may destroy such material before discovery?
5. Have P provided a proper basis for a John Doe proceeding?
6. Have the interests of Justice been brought into disrepute?
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Greg Koenderman – JICP – Winter 2011
Holding: there is insufficient evidence as to “serious damage and no proper proof that the defendant would be likely to hide or destroy
relevant documents or things. Also, improper to use “john Doe” as many defendents were know to P. APO should be set aside.
Ratio: Requirements must be satisfied before a “Rolling” Anton Piller Order can be issued, and steps for review are
established.
PLURALITY OF PARTIES (AND ISSUES & CAUSES OF ACTIONS)
ALI/Unidroit Prinicples 12 and 13 – Multiple claims and parties, Amicus Curiae
12. Multiple Claims and Parties; Intervention
13. Amicus Curiae Submission
Plurality of Defendants and Plurality of Plaintiffs
Note: A consequence of plurality is that it may impact jurisdiction  See CCP 34(3)
POLICY ISSUES UNDERLYING ALL OF THESE PERMUTATIONS

Efficiency vs. fairness? (Widdrington)
o Efficiency  many actions may be combined to settle all issues and not bog down the system
o However, over complication may cause undue delays  may be unfair to one of the parties, higher costs with
increased complexity. (Beardon)
o Avoid contradictory decisions.

Proportionality
o CCP 4.2: trying to ensure the costs of case is proportional to the complexity of the case

Case Management

Who is in charge/ role of the judge?
o Parties  let them decide how to run their case
o However, what is role of judge in separating issues, etc. (traditionally, party decided)
o Threatens to take away parties autonomy in cases. (Ottawa School of dance)
Multiple Claims

Joinder of Claims: 1 plaintiff vs. 1 defendant but multiple causes of action (Rule 5.01, 5.05, art. 66)
o A plaintiff may join any claims against defendant – for example, if A has several beefs against B, he can sue B
altogether.
o To make multiple claims: “In the alternative and without prejudice to the forgoing”
o This does not mean that the plaintiff has an unlimited right in this respect?

Ontario (total discretion) Rule 5.01 – Pl may join any claims against one defendant into a single case.

Rule 5.05 – Def. undue delay or undue complication, causing undue prejudice  court may disjoin multiple
claims (open test)

Quebec 66 CCP – article imposes conditions (4 criteria – more stringent test)

“Several causes of action may be joined in the same suit, provided that the recourses exercised are
not incompatible or contradictory, that they seek condemnations of a like nature, that their joinder is
not expressly prohibited and that they are susceptible of the same mode of trial.”

Is 1458 CCQ compatible under 66 CCP?
o Court: 1458 CCQ prohibits cumulating contractual and extracontractual benefits, but this
doesn’t mean that procedurally you can’t combine actions against one defendant even if
actions are contractual and extracontractual, as long as there are different injuries.
o So joinder of action is broad

Cannot be “contradictory”
o Ex: if suing for nullity of contract based on fraud, cannot also allege that you deserve
damages for breach of contract because these are contradictory.
o Generally, a party does not have to justify why they want cases joined unless it seems really egregious. The flipside is
however that…
o Court can join multiple actions together:

Pull and push – up to parties or up to court?

Ontario Rule 6.01?

Quebec art. 270, 271 (joinder by order of the court), don’t even have to be b/w the same parties or
in the same courts!

Plurality of defendants (Rule 5.02(2), art. 66)
o Decision by Pl to sue multiple parties.
o Both defendants committed a wrong against a plaintiff, but there is doubt as from whom the plaintiff is allowed to
receive relief, etc.
o Rare that it occurs separately from multiple causes of action
o Ontario Rule 5.02(2) – Plaintiff’s right to join multiple defendants to a case
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Greg Koenderman – JICP – Winter 2011

Same transaction/occurrence (A and B caused me harm) OR there is common question of law or fact that
arises, there is doubt as to who must provide relief to the plaintiff, etc. OR promotes healthy administration of
justice.
Quebec 66 CCP

No separate notion of joinder of defendants (66 CCP applies to both plurality of causes and plurality of
defendants – same 4-step test)

Saint-Martin v. Fédération des Enseignants des Ecoles Juives [2002]

Plaintiff names 3 parties: Shuster, school, woman;

Plaintiff names 3 different issues: nullity of contract, administrative writ, and correcting irregularities
of minutes of meeting.

School says “get me outta here” – convinced judge to disjoin not because recourses are
incompatible or contradictory, but they do not seek condemnations of a like nature.

Example of complicated case where defendant makes motion to disjoin and court agrees.
o
CVL - Saint-Martin v. Fédération des Enseignants des Ecoles Juives [2002] Que CS, p. 72; disjoinder
Facts
Issue
Holding
Reasons
Ratio


Basically, there's a ton o' stuff going on here. St-Martin wants to (a) nullify the results of a vote on salaries in the
union, (b) to declare that the official mise en cause (Gertie Shuster) is not a member of the union and can't be
responsible for insurance, (c) get herself (st-martin) declared elected to the post of insurance person (instead of
Shuster), and (d) amend the minutes accordingly.

Context: St-Martin has been complaining about the poor management of the union's life insurance for a long time.

She wants quo warranto  writ that requires the person to whom it is directed to show what authority he has for
exercising some right or power he claims to hold.

Court holds that there are 3 classes of actions: declaration of nullity for elections, declaration of quo warranto for
Shuster, and fixing the minutes of the Union. These each have different people in mind, and should have been
brought forward in separate actions.
Can the issues be split? [YES]
Yes

The employer has requested that St-Martin be obliged to pursue the recourses separately. Is this allowed?
o CPC 66 has often been interpreted to permit the joinder of many causes of action in one suit - this speeds
up procedures, facilitates justice
o This does NOT permit the joinder of wholly unrelated claims against different debtors having no common
source and no connection of any kind other than the fact that each debtor may individually owe money to
the creditor

St-Martin's requests are neither incompatible nor contradictory. They are, however, directed to different parties and
are not all about the same kind of inquiry
o There would be different witnesses, and different modes of inquiry
o The evidence could be different - involves different sets of facts

The employer has requested that the case be split  it's not the employer's place to do so. This request should
have been made by the Federation, or by Shuster. Court isn't going to split the case just for the employer.

The Court does, however, allow for the case to be split, because the employer has little to do with the other issues.
The court also notes, though that if you don't contest, you will NOT be disjoined.

St-Martin had a problem with Shuster, and felt she shouldn't have been on the executive. She took a quo warranto
recourse, requiring Shuster to show the authority by which she took a certain office. The first issue involved the
union and the employer, the second issue involved Shuster, the third issue simply involved the union.
This case shows that you can issue a writ against as many people as you want, but this will be challenged in
court. Art 273.1
Plurality of plaintiffs (Rule 5.02(1), art. 67) (Not the same as a Class Action (finite list of plaintiffs v infinite, but
describable class))
o Ontario Rule 5.02(1)

Common questions of law, convenient administration of justice, etc…

Always go back to 5.05 (reasons to disjoin)
o Quebec 67 CCP

If some claims are 10 000 and others are 100 000 – must go to superior court (look at individual claims, not
cumulative.
o Remember: Joining claims was a precursor to the class action- suing via mandate.
CCP 66, 67, 273.1 - Joinder of Causes of Action and Parties
JOINDER OF CAUSES OF ACTION AND OF PARTIES
66
Several causes of action may be joined in the same suit, provided that the recourses exercised are not incompatible or
contradictory, that they seek condemnations of a like nature, that their joinder is not expressly prohibited and that they
are susceptible of the same mode of trial.
A creditor cannot divide a debt that is due, for the purpose of suing for the several portions of it by different actions.
67
Two or more persons, whose claims have the same juridical basis or raise the same points of law and fact, may join in
the same suit. The suit must be instituted before the Court of Québec, if that court has jurisdiction in each of the claims;
otherwise it must be instituted before the Superior Court.
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Greg Koenderman – JICP – Winter 2011
At any time before the hearing, the court may order that claims joined in virtue of this article be disjoined, if it is of
opinion that the interests of justice will thus be better served.
Unless the court orders otherwise, unsuccessful co-plaintiffs are jointly and severally liable for the costs.
SPLITTING OF ACTION
273.1
The court may, on an application, split an action in any matter at any stage of the proceeding.
The resulting trials are held before the same judge, unless the chief judge or chief justice decides otherwise.
Ontario Rules: 5.02, 5.04, 5.05 – Joinder of Claims and Parties; misjoinder
JOINDER OF PARTIES Multiple Plaintiffs or Applicants
5.02 (1) Two or more persons who are represented by the same lawyer of record may join as plaintiffs or applicants in the same
proceeding where,
Multiple Defendants or Respondents
(2) Two or more persons may be joined as defendants or respondents where,
RELIEF AGAINST JOINDER
5.05 Where it appears that the joinder of multiple claims or parties in the same proceeding may unduly complicate or delay the
hearing or cause undue prejudice to a party, the court may, (a) order separate hearings;…more
Cross-claims and Counterclaims

Counter claim (Rule 27.01, art. 172(2))
o Counter claim  Defendant sues the plaintiff (“not only did I not do it, but you are actually liable to me).
o Independent action tied to the main action. Cannot counter-claim on any issue, must be a connection.
o Independence means that one does not fail b/c of the other.
o Pursuant to the Rules and the CCP, counterclaims are raised during the defence.
o Counter claim can only be made against plaintiff
o Risk is that counter claim can change the jurisdiction of the court.
o Plaintiff can move to disjoinder the counter claim.

Don’t want defendant piggy backing – will want them to take a separate claim See 27.08

Cross claim
o Cross claim  One of the co-defendants has a claim against another co-defendant
o Recursory action that avoids second related actions afterwards
o Ex: Insurance company will pay client (pft) under policy, but then will seek action against other defendant to get back
$$$
o Ontario  Rule 28.01 – Def may cross claim against a co-defendant
o Quebec  Doesn’t explicitly exist - Can not exactly be subsumed by 172 CCP

The words show that a counter-claim can be taken against a plaintiff

So you must forcibly implead the other party into the case

Have defendant wear two hats: B impleads C into in the case as part of his own action as this
bigger defendant.
CCP 172
172
The defendant may plead by defence any ground of law or fact which shows that the conclusions of the demand cannot
be granted in whole or in part.
He may also in the same proceeding constitute himself cross-plaintiff in order to urge against the plaintiff any claim
arising from the same source as the principal demand, or from a related source. The court remains seized of the cross
demand notwithstanding discontinuance of the principal demand.
Ontario Rules: 27 and 28 – Counter Claim & Cross Claim
Against the Plaintiff
27.01 (1) A defendant may assert, by way of counterclaim in the main action, any right or claim against the plaintiff including a claim
for contribution or indemnity under the Negligence Act in respect of another party’s claim against the defendant.
Against the Plaintiff and Another Person
(2) A defendant who counterclaims against a plaintiff may join as a defendant to the counterclaim any other person, whether a party
to the main action or not, who is a necessary or proper party to the counterclaim.
WHERE AVAILABLE
28.01 (1) A defendant may crossclaim against a co-defendant who,
(a) is or may be liable to the defendant for all or part of the plaintiff’s claim;
(b) is or may be liable to the defendant for an independent claim for damages or other relief arising out of,
(i) a transaction or occurrence or series of transactions or occurrences involved in the main action, or
(ii) a related transaction or occurrence or series of transactions or occurrences; or
(c) should be bound by the determination of an issue arising between the plaintiff and the defendant.
(2) A defendant who claims contribution from a co-defendant under the Negligence Act shall do so by way of crossclaim.
Forced Intervention of a Third Party
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Greg Koenderman – JICP – Winter 2011

Forced Intervention of a Third Party (Rule 20.01, 5.03, & art. 216 (Kingsway)
o Brought in by defendant
o This is called “impleading” the 3rd party
o Ex: If A sues B, and C is the third party, C can be dragged in by B and become his codefendant
o 2 main reasons a defendant wants to implead a 3rd party:

Pass on liability

Defendant feels he can pass on his liability to another party. One’s liability does not depend on the
other.

Cf. GreCon case  demonstrates how far jurisdictional issues stretch; because of 3 rd party
impleading, the case goes to Germany!

Share liability

Fonds d’Assurance-Responsabilité du Barreau v. Gariepy (2005)  Defendant wants to implead 2
other défendant, not because he wants to pass on liability, but to share the liability (solidarily, jointly,
etc.). In that case, A (client) was suing lawyer (B) for not suing notary and accountant in botched tax
plan. The lawyer was not involved in the original problem but because he did not sue in time, action
was prescribed. The lawyer then tries to impleaded the other notary and accountant.
o Is this doing indirectly doing what you can’t do directly?
o Court does not implead parties for specific reasons – doesn’t fit within 216 CCP since fault
of lawyer is independent of fault of notary and the accountant (would be different if
lawyer/accountant/notary had all botched up the tax scheme together).
o So if B cannot independently sue C and D, it is not necessary to bring them into the case.

Other type

Want 3rd party to be bound by decision.

Often in real estate transactions (want decision to be binding on registrar of registry office)

Ontario  Rule 29.01(c)

Quebec  Encompassed in 216 CCP
CVL - Fonds d’Assurance-Responsabilité du Barreau v. Gariepy [2005] Que CA, p. 79; impleading in FAILED;
Necessary v. utility of impleading; SHARED Liability
Facts
Issue
Holding
Reasons
Beaudoin
Ratio
A (client) is suing B (lawyer) for not suing accountant and notary in a botched tax plan. The lawyer was not involved in
the original problem but because he did not sue in time, action was prescribed (lawyer is being sued for professional
negligence). The lawyer asks that the accountant and notary be impleaded in (as per art. 216) on the basis that they
committed the two principal faults that are at the root of the problem. Lawyer says it is in court’s interest to have a full
solution to this litigation.
Can the third parties (accountant + notary) be impleaded in?
No – Fault of lawyer is independent from fault of notary + accountant.

Lawyer quotes from l’affaire Eclipse:
o It is not against plaintiff’s rights to impose on him an additional defendant
o Plaintiffs no longer masters of their procedures!

Judge agrees, but not appropriate in this case

Lawyer is being sued for professional negligence  fault committed way after botched tax scheme
o NOT common fault

Necessity and utility must not be confused

Impleading a third party may be useful  but that does not trigger art. 216

216 goes further and demands that impleading be necessary in order for the suit to be resolved
o Think: Plaintiff can still go after accountant and notary in separate suit – so necessity criteria not met
High threshold for art. 216 = necessity
CVL - Kingsway General Insurance c Duvernay [2009] QC CoA, p. 82; Forced Intervention; PASS ON LIABILITY
Facts
Issue
Reasons
Bich J.
Ratio
Com’t
Pl: Policy holder – water damage to property covered by insurance coy
Def: Insurance Coy – doesn’t want to pay and wants to force joinder of the plumber who did the damage
Plaintiff sueing insurance coy to pay water damages. Insurance coy impleads the plumber who made the mistake.
Should Plumber be impleaded into case under art 216? [YES]

2 Types of forced Intervention
o mis-en-cause are concurrent wrongdoers with defendant – necessary to permit a complete solution of the
question involved in the action; or
o defendant wants to claim a recourse in warranty – minimizes multiplicity of proceedings.

Wrongdoer has to come into the case; stretching the notion of art. 216 to avoid the multiplicity of recourses.

No additional costs involved in impleading in third party
Ends of justice are better served by impleading in third party to prevent multiplicity of proceedings.
How is this different from a GreCon type?
CCP 216-222 – Forced Intervention or Joinder of Parties
Ontario Rules 5.03, 29 - Joinder of Claims and Parties
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Greg Koenderman – JICP – Winter 2011
Voluntary Intervention of a Third Party
Why would 3rd parties want to come into the action?

Voluntary Intervention of a Third Party (Rule 13.01, art. 208)
o When parties realize that the lawsuit will have juridical impact on them – have an interest in what is going on and
want to protect rights that may otherwise be affected by judgment.

Cf. Standing, mootness, etc. issues – 3rd parties must prove that he has an interest in the case, that it relates
to it, etc…
CML - Beardon v Lee [2005] ON SC, p. 97; Intervenor Test; Granted
Facts
Issue
Holding
Reasons
Pepall J.
Ratio
Expert witness in Medical malpractice case allegedly perjures himself. In subsequent motion to set aside earlier
judgment, Dr. Crosby (expert witness) seeks intervener status to case to argue why the earlier decision should not be
overturned.
Should Intervenor status be granted to Expert Witness? [YES]
Yes, he has sufficient interest in the subject matter of the proceedings.
Rule 13.01 defines Interventions:

13.01(1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the
person claims:
o a) An interest in the subject matter of the proceedings [Granted here]
o b) That the person may be adversely affected by a judgement in the proceedings, [denied] or
o c) That there exists b/w the person and one or more of the parties a question of law or fact in common with
one or more of the questions in issue in the proceeding.

13.01(2) The court shall consider whether the intervention will unduly delay or prejudice the determination of the
rights of the parties to the proceedings and the court may add the person as a party…
Application to case
1. Precondition found in (a) has been met: Dr’s credibility and integrity are squarly in issue, as he gave evidence
at trial.
2. In considering whether to grant intervenor status judge considers: a) nature of the case; b) issues which arise;
c) the likelihood intervenor will be able to make a useful contribution to the resolution of the motion w/out
causing injustice to the immediate parties; d) whether intervenor status will unduly delay or prejudice the
determination of the rights of the parties to the proceeding.
Application of Rule 13.01 for intervenor status must satisfy one of the requirements before judge has discretion
to grant status.
CML - School of Dance (Ottawa) v Crighton CCC [2005] ON SC, p. 100; Request to be added as defendent
Facts
Issue
Holding
Reasons
Ratio

Tripartite agreement signed b/w School of Dance, Crighton, and City of Ottawa who advances $250,000 to SoD. SoD
sues Crighton and city, but then removes city from Statement of Claim. City seeks an order to be added as a defendant
to the claim. Pl supports, defendant opposes.
Can the city ot Ottawa be granted voluntary defendant status? [YES]
J. Hackland: Yes
Rule 5.03(1) and (4): “Every person whose presence is necessary to enable the court to adjudicate effectively and
completely on the issues in a proceeding shall be joined as a party to the proceedings. (4) the court may order that any
person who ought to have been joined…”

PL is normally entitled the right to decide who it will sue; although questions of who are to be the parties to
litigation is not always in the sole discretion of the original plaintiff.

Compulsory joinder rule is a narrow exception to the above general rule.

There may well be declaratory or equitable relief directly affecting the interests of the city of Ottawa, or
interests of the city may diverge from the interests of Crighton

Given the city’s financial investment, it is prudent that they be joined as a party.
City is permitted to join as a defendant to the proceedings.
Friends of court/amicus curiae (Rule 13.02, art. 211)
o They are interveners
o Usually NGOs, alliances, etc.  care passionately from public policy standpoint
o They only have 10 minutes during case, but may make written submissions
o Rare at trial level
o AG is given vast powers to walk into a case and act as an intervener (see 99 CCP and surrounding).
o In public law, constitutional law, etc. cases, there has been a great welcoming to interveners
o Important: These Interveners do not become parties – they have no right of appeal, no res judicata against them, etc.
CCP 208-215 – Participation of Third Parties in the Action – Voluntary Intervention
Ontario Rules 13 – Intervention – as added party, friend of the Court
Consolidation of Separate Actions
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Greg Koenderman – JICP – Winter 2011
CCP 270-272, 509 – Joinder of Separate Actions.
270
271
272
509
Even where the claims do not originate from the same source or from related sources, two or more actions between the
same parties, brought before the same jurisdiction, may be joined by order of the court, if it appears expedient to the
court to hear them together and if it causes no undue delay for any of the actions or serious injury to any third person
interested in any of the actions.
The court may also order that several actions brought before it, whether or not involving the same parties, be tried at
the same time and decided on the same evidence; it may also order that the evidence in one be used in another or that
one be tried and decided first and the others meanwhile stayed.
An order under article 270 or 271 may be issued at any stage of a proceeding, but it may be revoked by the trial judge if
he is of opinion that it is in the interest of justice to do so. No appeal lies from such order or from the order revoking it.
When the Superior Court and the Court of Québec are seized of actions having the same juridical basis or raising the
same questions of law and fact, the Court of Québec must, if one of the parties so requests and no serious prejudice
can result to the opposite party, suspend the hearing of the case before it until the judgment in the case before the
Superior Court has become definitive.
An order by the Court of Québec suspending the hearing may be revoked if warranted by new circumstances.
Ontario Rule of Procedure # 6 Consolidation or Hearing Together
Courts of Justice Act 107 – Consolidation of Proceedings in Different Courts
DISCLOSURE AND DISCOVERY
What is the discovery process (doctoral student)?

Discovery is exploratory and involves sharing – Lac d’Amiante

Discovery is an ongoing and multi-staged process. [ON Rule 29.1 to 35; QC 119, 274.1, 331.1-331.7, 397 – 400, 402-403]

Discovery process involves both disclosure and discovery [ON Rule 30.03 v. 31.03; QC arts 331.1-331.2, 397, 398]

It is not a war or a game, but designed to do real justice b/w the parties.
o ON Rule 30.

QC does not have an affidavit of document, but must disclose the documents they intend to rely on at trial.

Other forms of discovery:
o Examinations of real property
o Medical examination

Examinations through written questions and answers. ON Rule 35.
When does discovery happen?

Pleadings (Arts 119, 331.2)

Focus on the facts and evidence

Examination before pleas (art 397 v R 31.04(1))

Timetable and discovery plan (arts 151.1 & Rule 29.1)
What is the purpose of discovery?

Contingent
o ON Task force: cost of discovery accounts for a large percentage of total billings, and leads about 25% of clients
to pursue an alternative course of action.
o Key problems: incomplete, untimely or excessive

Costly

Contentious

Do the benefits outweigh the difficulties? Recorded version of pre-testimony and can be used at trial, and cannot be
changed at trial or contain admissions.
What is the role of proportionality?

Tension b/w: amount of money in issue, complexity, amount of time required, financial position of the parties, conduct of
the parties. (QC 396.1, 396.4; ON R29.2. ON limit is 7 hours of oral examination)

General rules v specific discovery rules

Monetary threshold

Time limits

Proportionality assessments.
Who has to disclose? The parties, although a non-party can be required to disclose documents (QC 398ish, ON___)
What has to be disclosed: ON all relevant documents, QC all documents to be relied upon).
When: parties will agree in their timetable. Must be done before inscription for trial.
Other issues: documents can include much more than ‘documents’ and (ON R30.1ish) can include map, video, etc, etc.
Privilege

E-Discovery (what about facebook pics, etc)
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Greg Koenderman – JICP – Winter 2011
Examinations on/for discovery
Who is examined?

Usually party examining party

ON Rule 31, and 34, QC 397 & 398
Fishing Expedition

ON & QC is guided by “relevance”. Questions asked to the other party must be relevant.

QC – may ask questions “related” to the issue

ON – questions must be relevant. Strong standard, and trying to limit the scope of discovery.

Counsel for the parties being examined can object to the questions being asked, and can ask the judge for a ruling on the
objection.
Sanctions for Abuse

Types of disruptions: unnecessary objections, etc.

Evidentiary or procedural sanctions

Monetary sanctions

Terminating sanctions: art 54.1, ON 34.14-35.15.

Contempt of Court – criminal sanction (art. 313)

QC: 50, 54.1, 54.3, 313, 331.4, 396.4, 403

ON: 29.1.05, 30.08(1), 31, 34.14-.15, 35.
DISCOVERY vs. disclosure

Disclosure: Communication of what a party wishes to use in evidence to prove the case the affidavit of documents

Discovery: Power of inquiry into the other party’s case. Party who wants the information goes out to find out.
o Intérrogatoire préalable
RECALL ELEMENTS OF DISCLOSURE

Declaration
o Dénonciation
o Give notice of what you have
o However, you do not have to hand the documents over at this time

Communication
o Share documents with the other party

Production
o Produce exhibits for court record
o This is also done before trial

Ontario  Affidavit of Document
o Slightly different from Quebec
o In Ontario, you must disclose all the documents relevant to the matter, whereas in Quebec you only disclose the
documents you will be using.

Sanction
o Québec and Ontario  if you do not disclose the document, you cannot use it at trial
o 30.08 Ontario Rules  court can make any order that is just, even dismiss the case
DISCOVERY

Note differences between Anglo/Canadian/U.S. versus Continental Europe (see Hazard article)
o Continental Europe  inquisitorial system
o US  adversary
o Discovery in Quebec is very similar to other Canadian provinces
o Societé Aerospatiale  clash in private international law case between US and Continental Europe. In the US,
discovery is seen as a right, whereas it is not in continental Europe.

Inextricably linked to role of the judge (forensic exploration or forensic determination) and the existence of the
adversarial system
o Adversarial system

Judge is silent umpire, and it is up to the parties to make their case to convince him.

The judge is not there to find the truth, but to be presented with different possibilities from the parties and
then decide

 Forensic determination
o Inquisitorial system

Judge’s responsibility to illicit evidence and make sure that truth emerges

 forensic examination and determination
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Greg Koenderman – JICP – Winter 2011

Discovery is reviled for 2 reasons
o If we open the door to discovery, we will go down the US path (Canada has protections against it being too broad,
unregulated, lengthy, costly)

Justified critique
o Package deal – if we allow for discovery, we will also allow for class actions, CFAs, punitive damages, etc.

Unjustified critique - we can have a procedural system that has discovery but no class action (in Ontario for
example, there was discovery before class action legislation)
OUTLINE of DISCOVERY
1) Purpose and effects
2) Costs
3) Scope
4) Abuse/sanctions
5) Confidentiality
1)
PURPOSE
o Facilitates the trial – narrows issues and limits court resources
o Helps get closer to the truth
o Equals the playing field regarding information
o
What does it enable?

Enables parties to assess the strengths and weaknesses of each side’s case

Enables parties to obtain admissions

Enables parties to narrow issues for trial

Enables them to assess credibility of a person examined as a witness

Allows parties to get a recorded version of testimony – a party’ memory prior to trial (remember how
long cases take to get going in Ontario – 2 years +)

Allows parties to get a recorded version of testimony – can promote or induce settlement (time is
ticking, bills are piling up…)  criticized in US case Bell Atlantic Corporation v. Twombly – if there is bare
notice pleading, there must be more discovery (which is costlier, more time consuming). This may however
induce parties to settle otherwise worthy cases just because they are running out of money.

Basically a sneak preview to see how the trial will go – How the opponent will act on the stand, get
admissions and recorded testimony to later use to contradict witnesses, etc.
o
What does this means in terms of effects?

Each party is forced to help the other party discover its case
2)
COSTS
o Ontario Task Force Report (2003)

Task Force was to examine whether discovery has become too costly and too time consuming.

The bad things about discovery are time + money.

Up to 25% of total billings in 32% of cases

25% - 50% of total billings in 44% of cases

50% + of total billings in 23% of cases
o Issues of access to justice because of excessive costs
o Legislature puts limits on use of discovery (e.g. Quebec and Ontario)

Time and monetary caps caps

QC  No discovery for actions worth less than $25 000 (cost of discovery would otherwise not be
proportionate to case)

ON  simplified track to $100 000 (more serious money) – so no written discovery, but oral
discovery for 2 hours regardless of number of parties to be examined. If under $25 000, it is small
claims and therefore no discovery. Check Ontario Rules – there is a lot of highlighting because
there have been a lot of changes.
o Rule 31.05.1  time limit on examination before discovery

Can’t exceed 7 hours except with consent of parties OR leave from court

This is not available in simplified proceedings where cap is 2 hours

Court must consider many factors

Cynical view – what good is this rule if parties can clog courts with motion to court
to extend it?
3)
SCOPE
o WHO may be discovered?

We impose a limit on who may be discovered since we do not want to open the door to have an entire pretrial.

In Canada, in principle, you basically only get to examine the other party (one person). If it is a legal person,
you can sometimes examine one or more representative depending on the jurisdictions.

Experts? Not in Canada (although it was recommended in report).
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Greg Koenderman – JICP – Winter 2011
o
o
o
o
o
4)
Ontario: New “Discovery Plan”

Questions to ask:

Is this a carrot or yet another stick

Is this similar to negotiation of échéancier in Quebec – how is this the same/different?

See Rule 29.1

Plan must include: scope of documents, dates of exchanges for documents, time, cost, manner of
production, etc…

Controls potential abusiveness of discovery by making parties agree to this plan

Sanction for not following the plan – other party can ask court to grant any relief or any cost…

Big idea  proportionality

Reminiscent of agreement in Quebec re: échéancier, but what is the difference?
o In Quebec, parties agree as to the entire déroulement of the pre-trial process, whereas
Ontario discovery plan covers only discovery
o In Quebec, your must present échéancier to the court, yet discovery plan in Ontario does
not need to be shown to judge (unless parties don’t follow it – then judge gets involved)
o Ontario has very wide sanction provision (any order, any relief, any cost), whereas in
Quebec, if you do not prepare an échéancier, the judge will do it for you.
ABUSES/SANCTIONS
o Types of abuses

Scope of questioning by party doing the examination

In Quebec, the scope of questioning is determined in timetable

Improper questioning may become excessive, vexatious, etc.

Evasive answers or non-compliance on part of party being examined

Avoiding questions, etc.

Party does not need to answer questions regarding privilege information

Unmeritorious objections to discovery and needless motions
o
5)
WHAT may be asked in an examination on discovery

Quebec  things relating to issue of the parties

Ontario  used to say “relating to” but now says “relevant to” (more restrictive scope – a lot of things may be
related to the case without being relavant to it) – will this really make a difference?
Worry: Fishing expeditions (US)
Is the change from “related to” to “relevant to” going to make a difference?
Oral vs. Written

Usually discovery is oral (in Quebec, it is only oral)

In Ontario, you can have oral or written discovery (but one or the other). In simplified proceedings, discovery
is only oral.
Types of sanctions (carrots and sticks!)

Evidence Sanctions

Not allowing information adduced in discovery to be used at trial

Rule 31.07

Biggest carrot

Monetary sanctions

Party abusing rules may have to bear cost sanctions

Remember new article 4.1 CCP that opens the door to costs when there is abuse

Terminating sanctions

Biggest sanctions – if really egregious, judge can dismiss the action

Terminating discovery itself  CCP 396.4

Sometimes (rarely, in extreme cases) even throwing out the entire case (art. 54.1 CCP, Ontario
Rule 34.15)

Contempt of court?

Party is not listening to what court tells them to do

Issue – stick into criminal-like sanction in non criminal context

Ont Rule 34.15 (2)  make it explicit that you can get a contempt order against you

Art 50 CCP  fines and imprisonment
o However, does it really apply since discovery is not done “in court”?
o RJ: Only way this would come up in Quebec would be through a secondary penalty (court
first gets involved, then party does not cooperate with this order)
o Could also say that since the judge sanctions the timeline, the court is already involved.
CONFIDENTIALITY
o See Lac d’Amiante
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Greg Koenderman – JICP – Winter 2011
o
o
o
o
Discovery usually takes place in boardroom of lawyer’s office. The party is sworn, counsel asks questions and
answers are recorded. If the case then goes to trial, these recordings can be put into the court records and used to
contradict what a party is saying on the stand. It can also used to get admissions. What happens to this information if
the case is settled after discovery? Is it “What happens in Vegas stays in Vegas”? Or can this information be used for
other purposes?

In US – Default position is that information is not confidential, unless a party applies to the court for protective
order and shows good cause as to why things divulged should stay confidential.

Rule 30.1 Ontario – Information obtained in discovery is confidential

Why are these jurisdictions different?
Why should it be confidential?

Lubricates the wheels of justice – free flow of information; you will talk more if you think it is confidential

Encourages parties to settle – “we’ll keep this quiet as long as this doesn’t go to court”.

If you get information on discovery, it is legitimate to use it for that trial. By using this information for another
purpose, it is arguably abusing your right.
Why should it not be confidential?

Our system is founded on the open court principle, so when a party engages the civil justice system, this
principle is engaged as well.

Lac d’Amiante (Lebel)  When we are doing discovery, we are not in court! So how can open court principle
be engaged? “Discovery is a private phenomenon…”. Lebel therefore feels like the open court principle is not
being violated. Furthermore, the purpose of the open court principle is to try the trier (to make sure that the
judge is acting properly) – yet there is no judge in discovery. So the very purpose of the open court principle
is not even engaged.
How far does confidentially go? Juman v. Doucette

In Juman v. Doucette, a childcare worker was examined on discovery but the civil case was settled.
However, there is also a concomitant criminal case against the worker. The police want access to the
discovery transcripts, as they are very incriminating and would help them establish a criminal offence. The
lower court says that confidentiality does not extent to criminal conduct, but the SCC says it this information
should remain confidential.

Debate

Defendant is being caught between rules of criminal procedure and civil procedure
o Criminal  People have a right against self-incrimination.
o Civil  must disclose everything

Therefore, non-confidentiality flouts an important criminal law principle.

There are exceptions regarding confidentiality when there is an imminent public danger.

Link with homologation

If case gets settled, all information remains confidential (one reason to settle case à l’amiable)

However, as soon as you ask for homologation, it becomes public (court document).

One way to fight homologation – just carry out the agreement.

Another way to fight it is to say that agreement is not valid (pull out all tools in contracts arsenal –
error, fraud, failure to disclose…)
ALI/Unidroit Principle 16; Disclosure
Disclosure
CPP See generally art. 331.1 + Notice of Disclosure
331.1
A party who intends to refer at the hearing to an exhibit in his possession, whether the exhibit be real evidence or a
document, including the whole or an abstract of testimony, an expert's report or any other document referred to in articles
294.1, 398.1, 398.2, 399.2 and 402.1, must communicate it to any other party to the proceedings, in accordance with
the provisions of this Section.
Rule 53.03 Ontario RCP - Expert’s Reports
CCP 396.1 – 398 – Examination on Discovery
396.1
No examination on discovery is permitted where the amount claimed or the value of the property claimed is less than
$25,000.
Rules 30 and 31 Ontario RCP – Discovery of Documents and Examination for Discovery
WHEN EXAMINATION MAY BE INITIATED
Examination of Plaintiff
31.04 (1) A party who seeks to examine a plaintiff for discovery may serve a notice of examination under rule 34.04 or written
questions under rule 35.01 only after delivering a statement of defence and, unless the parties agree otherwise, serving an affidavit
of documents.
Examination of Defendant
(2) A party who seeks to examine a defendant for discovery may serve a notice of examination under rule 34.04 or written
questions under rule 35.01 only after,
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Greg Koenderman – JICP – Winter 2011
(a) the defendant has delivered a statement of defence and, unless the parties agree otherwise, the examining party has
served an affidavit of documents; or
(b) the defendant has been noted in default.
TIME LIMIT
Not to Exceed Seven Hours
31.05.1 (1) No party shall, in conducting oral examinations for discovery, exceed a total of seven hours of examination, regardless
of the number of parties or other persons to be examined, except with the consent of the parties or with leave of the court
SCOPE OF EXAMINATION
General
31.06 (1) A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper
question relevant to any matter in issue in the action or to any matter made discoverable by subrules (2) to (4) and no question
may be objected to on the ground that,
(a) the information sought is evidence;
(b) the question constitutes cross-examination, unless the question is directed solely to the credibility of the witness; or
(c) the question constitutes cross-examination on the affidavit of documents of the party being examined.
G.C. Hazard, “Discovery and the Role of the Judge in Civil Law Jurisdictions”, p. 102 – US v EU conparison of
discovery
Pre-trial discovery is an integral part of contemporary American civil litigation

But discovery is not available in CVL jurisdictions

This is frustrating for American lawyers b/c foreign judges are not receptive to their endeavours in transnational litigation.
American System:

Discovery is the deposition of witnesses and discovery of documents

May be taken as a right and without court permission

Can even go so far as to use the power of subpoena

Duration of discovery is limited only by the resources of the parties

This is much more expansive than in other CML jurisdictions

Danger of “Fishing Expeditions”

These are prohibited in other CML jurisdictions through their procedural rules

But all of the CML systems start from the idea of the adversarial system – where the role of the judge is to decide between
competing presentations of evidence and the law that are presented by advocates. Judge is not responsible for finding the
“truth” or ensuring the adequate development of evidence at trial  the CVL is totally different.
Civil Law Systems:

Judges decide both fact and law, therefore responsible for eliciting evidence

Advocates’ function is to assist the judge in fulfilling her responsibility

There is no “pre-trial” in CVL

Pre-trial discovery is based on logical necessity for jury trials – CVL is not jury therefore pre-trial process is not necessary.

Evidence is received on a tentative basis until proven wrong.

Judge needs to know only what is necessary to decide the case
Societe National Industrielle Aerospatiale v.United States District Court for the Southern District:

Cases like this are seen in the CVL as an invasion of the role and responsibility of judges

In this case there was a conflict btw the US Federal Rules which permit production of documents wherever they are located,
without prior judicial approval and the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters,
where evidence abroad is to be obtained by application to the court in the country involved.

The Hague Convention supports international legal concepts of not interfering with other domestic courts.

The American Rules are seen as fulfilling constitutional rights

The notion that a party has a right to compel production of evidence violates the fundamental principles of CVL – especially
considering the different roles of advocated in the two systems

The Convention was interpreted by the US SC as to not violate Federal Rules (author thinks this is a bit crazy)
Constitutional Foundation of Civil Law Concept of Judicial Primacy

This has evolved with the history of Europe

Much on the same footing as 5th Amendment (privilege against self-incrimination)

In France this is based on the distrust of the revolutionaries of the judiciary who had been a key element of the Ancien Regime
CVL - Lac d’Amiante du Québec v. 2858-0702 Québec [2001] SCC; 104; Pre-Trial information is subject to
confidentiality
Facts



During the pre-trial process one of the parties refused to hand over documents citing concerns about invasion of
privacy and confidentiality.
The trial judge dismissed these concerns and demanded that they hand over the documents.
This then went to the CA and SCC over whether documents presented in the pre-trial process could remain
confidential (except between the parties).
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Greg Koenderman – JICP – Winter 2011
Issue
Holding
Reasons
LeBel
Unanimous
Ratio
Is there a rule of confidentiality for information obtained during the pre-trial process?
Yes

In the absence of legislative foundation, the court cannot just create a new rule, therefore they have to find implicit
founding for it.

The judges in the CoA and the SCC looked at how this implicit confidentiality already existed in common law.

Also looked at whether this violated the open court principle (it doesn’t)

This rule of confidentiality would make it impossible to use information gleaned during the pre-trial process in other
cases – this helps to protect the privacy rights of the parties.

This right of confidentiality would cease once documents were deposed in trial (unless the judge rules that they
should remain confidential)

As well, the court can order that this rule of confidentiality by withheld in certain cases.

The rule only applies to documents that are uniquely private and not things that are already in the public domain.

Goes to great length to distance discovery from the court process, and says that this is not in court.
Rule of confidentiality of information obtained during pre-trial process, although not explicitly stated in the
CCP, can be inferred based on the evolution of Quebec civil procedure and the protection of privacy seen in the
QC Charter.
CML - Juman v. Doucette [2008] p. 114; SCC; information disclosed in discovery remains confidential.
Facts

Police knew about a civil case where it was clear that some information had been divulged in discovery that might
be useful for a criminal investigation

How does confidentiality affect this?  What about the right not to self-incriminate? What about the right to remain
silent? What about right to remain silent about your case before it goes to court
Can the information only be used for the purposes of civil litigation? Or does this change when there is
Issue
criminal activity?
Holding
Information remains confidential
Reasons BCCA: Info was not confidential when it’s criminal. This runs counter to the open court principle
SCC: overrules this. Any information disclosed in discovery is confidential; even if contains info about criminal
Binnie
Unanimous
activity.

Pre-trial discovery is an invation of privacy

Purpose of discovery won’t be fulfilled unless we promise confidentiality

Pre-trial does not take place in open court, therefore not contrary to open court principle (must respect that many
civil cases don’t actually go to trial b/c of discovery)

Reasons to support an implide undertaking of confidentiality:
o Pre-trial discovery is an invasion of a private right to be alone with thoughts and papers
o Encourages more complete and candid discovery
o “whatever is disclosed in the discovery room, stays in the discovery room”

Remedies for breach of confidentiality: stay or dismissal of proceedings, striking a defence, contempt
proceedings for breach of the undertaking owed to the court.

Here, case was settled, and what was discovered remains confidential

Reason for open courts was for the community to know if judges are conducting themselves properly

Exceptional Circumstances may justify lifting confidentiality: Bar to lift is super high  concerns of public
safety or immediate concerns of a child’s welfare (not past acts), or perjury.

Just because what was disclosed was a suggested crime – this is not enough. Only if it’s very serious and
imminent.

[58] “authorities should not be able to obtain indirectly a transcript which they are unable to obtain directly through a
search warrant in the ordinary way b/c they lack the grounds to justify it”.
Any information disclosed in discovery is confidential; even it contains info about criminal activity.
Ratio
Comment: Pretty far-reaching decision. Short of imminent danger you can’t go against confidentiality.
CMN/ – Ontario Report on the Task Force on Discovery Process, Executive SUmmary (2003) p. 129 –Identification of
problems and recommendations for improving the Discovery process.

Goal of the Task Force was to study the discovery process and recommend reforms that will promote access to
justice by improving the efficiency of the process without compromising fundamental disclosure principles.

Management of discovery should remain with the parties, with rules operating as default standards in the absence of
concensus.
Following discovery, the only thing left to do is “set the case for trial” or inscribe the case for trial (QC).
This Course Skips the entire trial, which chronologically takes place here, and then…
END OF PROCEEDINGS & COSTS

End of Proceedings: Disposition without Trial
o This whole course dealt with the pre-trial process as opposed to the actual trial. The course was however predicated
on the assumption that there will be a trial (for ex. injunctive relief need interlocutory order pending trial to protect
plaintiff’s right before trial starts).
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Greg Koenderman – JICP – Winter 2011
o
Proceedings can be disposed of without trial (apart from settlement)
3 reasons why we end proceedings without trial:
1.
PROCEDURAL REASONS
Note: we saw these 2 earlier in course
i.
DEFAULT JUDGMENT

When are you susceptible to having default judgment against you? 2 instance in QC, 1 in ON

No appearance
o Do not have to physically show up, need to send written document file a pleading
o QC  192(1) CCP – do not file an appearance within 10 days of the motion to institute
proceedings for example, (2) do not file a defence in appropriate time set out in
échéancier.
o ON  Rule 19 – no such thing as an appearance, but need to file a defence either 20, 40
or 60 days depending on whether you are in Ontario, Canada, or abroad.

Is default judgment automatic?

Beals would have us believe that it is automatic but it is not an automatic win for the plaintiff. The
action still has to be decided by the court. Just because the defendant has not appeared or filed a
defense does not mean the plaintiff will win. It will depend on the complexity of the case.

If an action is a simple one (for a sum of money based on a breach of contract), the party appears
before a clerk of the court (art. 194 CCP). The clerk will render a default judgment just by looking at
the documents. The clerk will see if there has been proper service

If case is complicated: Art. 195 CCP, Rule 19.05 Court does not have to rule in the plaintiff’s favour.

Best Buy – can apply to have the default judgment revoked and action dismissed 482 CCP, Rule
19.08 (set aside default judgment for reasons that are just)

RJL: main point here is that default judgments are not as automatic as we think.
ii.
DELAY

QC  180 day rule for pre-trial process (art. 110.1 CCP – if you have not asked for an extension, passage of
time means dismissal of the case)(strictness seen in Arguin v. Nault)

ON  different times depending on the track. Maximum time is 2 years unless there is a shorter period that
you are subject to because of the track.

New judicial culture with view of civil justice reform  punish delay tactics, improve cooperation
between parties. It’s about changing the mentality of judges and lawyers.
2.
SUBSTANTIVE REASONS

Vexatious, frivolous or unfounded actions

QC  continues to have 165 CCP Defendant can make motion that suit is unfounded in law (substantive
reason). But remember new article 54.1 CCP gives more extensive powers to judiciary to dismiss actions that
are vexatious, unfounded, abusive, a SLAPP (that is really a substantive reason). We don’t get to talk about
substantive reasons on merits b/c they are cut off before then.

ON  Rule 21.01 allows for right to strike case from rolls
3.
BY REASON OF SETTLEMENT

Finally, real goal of judicial system is to have case disposed of without trial because it is settled

JUDICIAL SETTLEMENT CONFERENCING

Litigation is changing, nature of law is changing. President of Superior Court of QC told incoming
students at University of Manitoba to “SETTLE YOUR CASES” NEW CULTURE!

MEDIATION

Role of legislation? What comes first: are we a society built on equality principles that are then
proclaimed in Charter or is it Charter that caused us to be society.

Mandatory mediation in Rule 24.1 is example of legislative pushing to achieve a goal of settlement.

Conference à l’amiable (mediation) it is free (most people don’t know this).

It is a way to keep people out of courtroom

HOMOLOGATION

Remember this opens up case to public

What do you have to do at the end? DISCONTINUE YOUR SUIT file discontinuance! 262 CCP, Rule
23.01 ON Rules
End of Proceedings: Disposition with Trial


One of the most important procedural consequences of the disposition of a case is the awarding of costs.
“Dismiss the case with costs throughout”
o Who pays these costs and what do they consist of?
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Greg Koenderman – JICP – Winter 2011
ALI/Unidroit Principle 15 – Dismissal and Default Judgement
15.4 A default judgment may be no greater in monetary amount or in severity of other remedy than was demanded in the complaint.
(cf Beals)
15.5 A dismissal or a default judgment is subject to appeal or rescission. Cf Best Buy
Court-ordered Costs

Where do we find the notion of costs in Canada?
o Various procedural statutes

Quebec  Art. 477 & 480 (and also 519, 522) CCP. Losing party must pay all costs, unless ordered
otherwise.

Ontario  Court of Justice Act, Sec. 131, rule 57 gives more information that court may consider.

Unidroit  principle 25 – winning party should ordinarily be awarded all or substantially all of its legal costs.

Inherent jurisdiction – basis for awarding interim costs.
o Yet no rule needed as costs fall under inherent jurisdiction of the court

Do all jurisdiction award costs? If not, why order them?
o Canada  although differences are vast between jurisdictions, as a general default provision, the losing party bares
costs.

“The Canadian practice in awarding costs has been characterized as an attempt to balance two conflicting
principles: one, that a successful party to litigation who is free from blame should not be required to bear the
costs of either prosecuting or defending the action, and two, that citizens will be unduly hesitant to assert or
defend their rights in court if an unsuccessful party is required to bear all the costs of a successful one.
Costs are an appropriate deterrent to advancing questionable claims, or for dealing with the unreasonable
conduct of a case, it has been said, but should never reach a level where they bar access to the courts”
(M.M. Orkin, The Law of Costs, Canada Law Book, Inc. Toronto 2003)

Typical “middle-of the road” approach

Costs to wining party, but NOT all costs (as would prevent access to justice and would discourage people
from making reasonable claims)
o


USA  does NOT have the same position as Canada (awarding of costs). Default: no costs; parties bare their own
costs.

“Since litigation is at best uncertain one should not be penalized for merely defending or prosecuting a law
suit, and … the poor might be unjustly discouraged from instituting actions to vindicate their rights if the
penalty for losing included the fees of their opponents’ counsel…” (Fleischmann Distilling Corp v. Maier
Brewing Co. (1967) (US SC))

Policy reasons

Do not want to deter people from suing with threat of paying costs.
o Justice is by its very nature uncertain – a reasonable judge in one courtroom could get to a
very different decision than the other  so it is unfair to deter people from litigating.
o USA is one of the more litigious countries in the world.

Access to justice – high costs impede the access to justice
Why do we award costs in Canada?
o Two objectives:
2)
Traditional response  they are just part of compensation package

But for the breach, for example, someone would not have had to dish out these other costs.

Compensatory view
3)
Modern response policy tool to regulate how people are using the civil justice system

Directing litigious behaviour. Carrot or stick?

What conduct?
i. *** Conduct in court proceedings (not dragging things out, discouraging unnecessary steps,
ensure administration of justice is efficient).
ii. *** Prevent or deter an unmeritorious claim (Rule 57.01, Art. ___)
iii. *** Encourage parties to settle (when in doubt, always go back to Lord Woolf!)
o 49.10 of Ontario rules  see application in Walker v. Ritchie

Costs before offer to settle  partial indemnity costs

Costs after offer to settle  substantial (full) indemnity costs
o This is a punishment for not settling.
iv. Good conduct substantially
Against whom are the costs awarded?
o Generally, loser pays; however, winner may also be required to pay
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Greg Koenderman – JICP – Winter 2011
o
o
Okanagan  there are instances in a Charter challenge where the AG is called upon to pay costs even though it won,
so as to not inhibit ability of regular citizens to bring claim

But what about ordinary, private cases?

Ontario rules authorise this (57.01(2)) in a “proper” case

Art. 477 of the CPP  no mention of a winning party.

These costs will be rare, exceptional and limited to circumstances where winning party was very
vexatious, for example (can point to actions of winning party in accumulating unnecessarily the
costs for the losing party).
Awarding costs against solicitor

Rule 57.07(1)(c) Yes! In certain cases

Young v. Young (1993)  issue was whether the lawyer of the party should have to pay costs.

McLachlin  costs cannot be ordered to punish the lawyer, but court has inherent jurisdiction to
order it as compensation tool to regulate judicial process.

In other words, while you can get costs against a lawyer, it will be rare and only where the lawyer
has abused the process and the justice system. But lawyers should not be discouraged from
bringing forward unpopular/novel cases, and what would law be without these cases?

What are costs comprised of? Judicial vs. extra-judicial fees
o Judicial costs  costs incurred by the civil justice system’s hardware.
o Extra-judicial costs  lawyers fees (mainly), and other peripheral costs.
o We do not use these terms uniformly

Ordinary vs. Special costs

Party to party vs. Solicitor-client costs

Partial indemnity vs. Substantial (full) indemnity (Ontario)

Most accurate, as party-party and ordinary costs includes some allocation of the cost of the lawyers.

Depends on cost-system of the jurisdiction

2 global types of costs systems

1)
Tariff-based system  QUEBEC

Art. 477  losing party must pay costs

Art. 480  prepared bill of costs in accordance with tariff.
o Also include “Tarif des honoraires judiciaires des avocats” (See CCP p. 743)

Advantage of tariff system  stabilizes the expectancy of costs
o Allows for weighing pros and cons of suing (can pre-calculate)
o Uniform across Quebec
o Improves Access to Justice, by low costs. QC wants to be a jurisdiction which encourages access to
justice.

Disadvantages  many!
o Barreau de Montreal: Awards are consistently low (can recoup around 5% of what was paid)
o It is detested by lawyers, professors and even judges. Not updated since 1976!

Ferland slams tariff system

Hétu  Pelletier (“le tariff judiciaire des avocats est nettement désuet…”)

However, government likes the system (argument – access to justice)

Judges do whatever they can to get out of this ordinary cost system (tariffs), so that parties can receive
extra-judicial fees.
2)
Discretionary system  ONTARIO

Costs generally reflect partial indemnity – roughly 40% of costs.

Courts of Justice Act s. 131  very open-ended
o Yet Rule 57 of the Ontario Rules of Civil Procedure gives contours/factors to this decision

Walker v. Ritchie
o Even in a discretionary system, the description is not open-ended.
o Here, court wanted to take into account certain factors dealing with the way the lawyer was being
paid (risk premium (this was when CFAs were not allowed)).
o Costs were awarded in consequence of this risk premium
o However, this risk premium was not part of the list in Rule 57.
o So discretion is not unfettered

What is the difference between both? (Estimated)
o Costs in Quebec, represent 5% of true costs
o Costs in Ontario, represent 40-60% of true costs
o Strategic litigation  this may have an impact on choice of forum!
Big question: When can you get full indemnity
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Greg Koenderman – JICP – Winter 2011
o
Full Indemnity: Specific provisions (e.g. Rule 49.10 Ontario, s. 42,15 Tariff Quebec)

So In Quebec, Tariffs themselves give mechanisms for higher costs: S. 42  in cases where you are getting
over $ 100 000, extra 1% between 100 000 and the higher amount.

S.15 Tariff (Quebec)(p.744)

Commission des Droits de la Personne v. Laval (2007) RJQ 1449
o Municipal meetings that start with prayer violate freedom of religion
o Lawyer acting for Mouvement laique applied under s.15 for $15 000 in costs; court
awarded $5000.
o Justice Rivest stated again that a “cause importante” is one that is in the public interest.
Here, over 300 municipalities will be made to amend their conduct (case affects more than
just the litigations before the court) – similar to Okanagan.
o Justice goes on to say that it is a global consideration considering factors, among which is
the unequal force of the parties

Royal Lapage also explains this (para 33)
o In an “important case”, a party can ask for an extra amount.
o But what is a special case? Dalfond J. describes that it is one that is “dans les affaires
d’interet public”

See characterization issue in Little Sisters – Is the case of public interest, or is it rather about 4
specific books?
CML - Walker v. Ritchie (2006) SCC 45 P. 141 – Defendents cannot pay premium depending on Plaintiff’s fee
structure, Cost award as a stick for rejecting settlement
Facts
Issue
Holding
Reasons


Personal injury suit for motor vehicle accident
Council for impecunious plaintiff carried on litigation in face of defendant’s (trucker and trucking company) denial of
liability for its duration of 4 years without remuneration.

Plaintiff’s made offer to settle, but defendant rejected it. Defendant lost at trial.

As plaintiff’s award exceeded their settlement offer, he was entitled to partial indemnity costs for the litigation up to
the date of service and substantial indemnity costs from that point onwards (Rule 49.10(1)).

On basis of risk of non-payment of the plaintiff’s council, the trial judge increased the award.
Should plaintiff’s costs award be increased to take into account the risk of non-payment to the plaintiff’s
counsel?
No – Appeal allowed

Client solicitor arrangements in general
o Fees for litigation may be payable without regard to the outcome or may be contingent on the result
(usually higher to compensate for risk).
o CFA permitted in Ontario since 2002 in view of promoting access to justice.
o When council here took the case, CFAs were not permitted.
o Risk-premiums between lawyers and clients are not challenged  issue here is whether trial judge can
increase the costs award itself to take this risk into account.





Courts have discretion over costs, but this discretion is not unlimited (see s. 131(1) CJA)  must examine
legislative scheme.
Rule 57.01(1) guides a court’s determination of the quantum of a costs award.
o Scheme in place at time was not one of full indemnity.
o Risk of non-payment to plaintiff’s council was not a relevant factor under Rule 57.01(1) of the Ontario
Rules of Civil Procedure at the time.
o Words like “any other matter relevant to the question of costs” (i) are broad, but are not unlimited.

Examining of factors included in (a) to (h) reveals common features among them and provides
guidance in the interpretation of (i).

Factors are neutral (can be applied to either plaintiff or defendant) (not the case here –
in favour of plaintiff)

Factors fall within two categories: (1) nature of case, (2) conduct of parties in litigation
(not the case here, involves arrangement between plaintiff and their council)

Framers of clause (i) did not intend it to include the risk of non-payment to plaintiff’s council.
Unsuccessful defendants should expect to pay similar amounts by way of costs across similar pieces of litigation
involving similar conduct and counsel, regardless of what arrangements the particular plaintiff may have concluded
with counsel, since a defendant has no knowledge of these private arrangements and thus has no means of
measuring the risk of engaging in litigation.
Requiring unsuccessful defendants to pay a premium to the plaintiffs in personal injury cases is not compelled on
the theory of promoting access to justice
o Would incline defendants with meritorious defences to settle.
o Would encourage plaintiffs to pursue less meritorious claims.
Opportunity for counsel to charge his or her own client a risk premium, or now a contingency fee, encourages
competent counsel to take on the cases of impecunious clients.
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Greg Koenderman – JICP – Winter 2011
Ratio


Risk of non-payment to the plaintiff’s council is not a relevant factor in determining the quantum of costs
under Rule 57.
Requiring unsuccessful defendants to pay a premium to the plaintiffs in personal injury cases is not
compelled on the theory of promoting access to justice and is unfair to a defendant who has no knowledge
of these private arrangements and thus has no means of measuring the risk of engaging in litigation.
CMN – Beardy v Canada, 2003, ON Sup Crt, p. 152– Costs awarded against lawyer personally
Facts: Lawyer M caused cost of litigation to escalate by not replying to email, failing to attend discovery, disregard for case
management process, and lack of professional obligations of courtesy and civility to other lawyers.
Issue: Can M be held personally liably for escalating litigation costs? [YES]
Maj (J. Pierce):

Cites Young, lawyers conduct needs to be bad, but it doesn’t necessarily need to be as bad as McLachlin described iot award costs
personally against lawyer.

Authority to award costs against a lawyer: Rule 57.07(1)(c): “Where a solicitor for a party causes costs to be incurred
without reasonable cause or to be wasted by undue delay, negligence, or other default the court may make an order requiring the
solicitor to pay the costs of any party”. Also available under inherent jurisdiction of court.

Young: Orders of cost must be made with extreme caution

Standard of misconduct higher than mere negligence is required, BAD FAITH is not required.
Ratio: Costs can be awarded personally against a solicitor if he causes costs to be incurred unnecessarily.
CMN – McKinnon v Polisuk, 2009, QC SC, p. 165– Quebec refuses to adopt cost for solicitor-client from foreign
jurisdiction. (Shocking case that is not necessarily the law).
Facts: Long mixed facts about litigation in Ontario and costs awarded for solicitor-client costs. Million dollar cost awarded by ON CoA.
Issue: Is an order for cost on a solicitor-client basis enforceable under Quebec law? [NO]
Maj (J. Borenstein):

She refuses to enforce the Ontario award of costs, as against public policy.

The tariff system in Quebec is public policy, and Superior Court will not enforce a judgement of full indemnity, in Quebec, as that
is not consistent with the QC tariff system.
o
This is contrary to the Beals test. Beals says courts should enforce a foreign decision if foreigh court had jurisdiction and
not against natural justice.
Ratio: Quebec (may) refuse to enforce awards for costs granted in foreign jurisdiction.
Additional comments:
CVL – Commission des Droits de la Personne v Laval, 2009, QC SC, p. 161– Tariffs s. 15, awarded in “important” cases
Facts:Lawyer for commission won a decision that the Lord’s Prayer reading in public meetings was a violation of the QC Charter. He
was awarded $850 according to the tariffs for his work, which took 165 hours of preparation and 3.5 days in court. The city lawyers on
the other hand incurred expenses of $241K. Lawyer is requesting “honoraire speciale” of $80,000 on top of the other money in light of
the importance of the case. S.15 of the Tariffs guide gives courts the right to grant special awards beyond tariff fees.
Issue: Should the court award a special fee in light of the importance of his work, and if so how much? [Yes, $5K]
Maj (J. Rivet):




Municipal meetings that start with prayer violate freedom of religion
Lawyer acting for Mouvement applied under s.15 for $80 000 in costs; court awarded $5000.
Lawyer claims his work was significant and will effect about 300 municipalities in Quebec.
Court agrees, but says just because the can give extra award doesn’t mean they have to. In the end settle on $5,000 in extra award.
Ratio: In important cases a judge can award “special honoraire” above the Tariff fees.
Costs as a Policy Tool
ALI/Unidroit Principle 25 - Costs
25. Costs
25.1 The winning party ordinarily should be awarded all or a substantial portion of its reasonable costs. “Costs” include court filing
fees, fees paid to officials such as court stenographers, expenses such as expert-witness fees, and lawyers’ fees.
25.2 Exceptionally, the court may withhold or limit costs to the winning party when there is clear justification for doing so. The court
may limit the award to a proportion that reflects expenditures for matters in genuine dispute and award costs against a winning
party who has raised unnecessary issues or been otherwise unreasonably disputatious. The court in making cost decisions may
take account of any party’s procedural misconduct in the proceeding.
o
Conduct – Abusive Behaviour (rule 57 Ontario)(Quebec CCP 54.1)
o Abusive behaviour (next section)
o Costs as a policy tool to reward good litigious behaviour, or punish bad litigious behaviour.
o Although Ontario has a discretionary system, this discretion is somewhat limited
o However, conduct of the parties is an explicit element on which the court can base its decision (Rule 57 e,f)

Notion of unnecessary pleadings, vexatious conduct (we will come back to this)

Part and parcel of what court gives in terms of costs (not the same in all jurisdictions).

Types of abuses
o Can you open the argument for extra-judicial fees in all of these or only some?
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Greg Koenderman – JICP – Winter 2011

o
1)
Debatable in abusiving behaviour related to breach itself, but generally accepted in inappropriate litigious
behaviour.
You don’t want to dissuade brave lawyers from taking unpopular cases and moving the law forward.
Abusive behavior related to the breach itself (Substantive breach)

Court will award damages for a wrong committed; however, court will not award legal fees related to this
breach
o See Boivert article o Hotly debated  if the breach itself was egregious, in bad faith, etc., why not get higher costs in the
form of damages?
o CoA Viel Decision (cited in Royal LePage) was about an abusive related to breach itself. Court
reverse trial damage award, as there was not direct causal link between the fault and the damage.

Problem of looking at costs as damages  if it is a damage for which there is a breach, we must follow rules
of civil responsibility (Ex: CCQ 1607)
o Could argue that you would not have had to sue if there had been no breach
o But could also argue that this is a condition of all cases! Do we want to award “damages” every
time?

Exemplary and punitive damages are rare
o 1612 CCQ, Human Rights Code, Consumer Protection Act, Quebec Charter, etc. (not case of Viel)
o Art 54.4 adds one more way punitive damages can be awarded.
o At Common law, there must be an additional actionable wrong that we can point to.

So victim of substantive bad faith breach is out of luck.
o Dalphond has publicly criticized this decision
o However, there is possibility in (a) and (b) (next section)

Are extra-judicial fees costs or damages?
o QC Art. 54.4 – they are damages, and in order to be awarded you must demonstrate a violation of
civil responsibility: fault + injury + causation = damages.
o ON extra-judicial costs are coming in under courts discretionary power to award costs. Rule
57.01(4) – Much more discretion is worked into the substance of the case.
o
CVL - P. 172 – Y.Boisvert, “Parlant d’accès à la justice…” Costs for lawyers fees only awarded in QC for abuse of
system
Uses the example of the unjustly dismissed secretary who wins her case, but ends up in the hole for $60,000. Courts only rarely
award costs that reimburse the lawyer’s fees (only in cases of abuse of the system).
Contingency fees (%) improve access to justice

Don’t result in litigant debt, even following judgment for their case. Lawyer’s fees are too high.

Better than a deficit, but doesn’t change the fact that even winning costs a lot of money
Courts rarely provide for reimbursement of lawyer’s costs

Lawyer fees are considered indirect damages in Quebec

Will only be awarded in the case of an abuse of procedure.
In Ontario and most of Canada, lawyer fees are an integral part of ‘damages’.

Contingency fees are not prevalent in the rest of Canada

Quebec’s answer to dealing with lawyer fees  no fee if they lose, and a percentage of awarded amount (lawyers consider this
better than nothing).
Problem: not every lawyer will be willing to take on high profile cases against major players on a contingency fee basis – lots of
work, major chance of losing…

Might not be the best solution

A solution might be to cap the amount of fees allowed…
2)
Inappropriate litigious behavior (abusive manner in the course of litigating) (Procedural – engaging the
justice system unnecessarily or misusing the system)

Invoked by courts as a tool to encourage good litigious behavior.

Divided in 2 types of abuses
A)
Abuse in the institution of the action (don’t have a right)

Inappropriate actions to begin with

All jurisdictions have built in ways in which parties can go to court early on without waiting for
trial.

Ability of party in pre-trial, preliminary process, to ask court to throw out case (is frivolous,
vexatious):
o Ontario

Rule 21.01 para 3 (d)
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Greg Koenderman – JICP – Winter 2011
o
B)


Rule 21.01 para 1 (b)
Quebec

Distinguish action unfounded in law, and action unfounded in fact (frivolous
and vexatious)

CCP Art. 165 (4) – something can be unfounded in law even if the facts are
true (action that is prescribed)

This used to be covered by CCP Art 75.1, 75.2 – repealed by Bill 9.

Art. 54 and following seek to replicate and add more.

54.1: “at any time, on request….”  big change to 75.1 used to alter
discovery + opening for judge to order damages for abusive
behavior related to breach itself.

54.3, 54.5  May dismiss the action, may award damages in
reparation for prejudice suffered, including fees and extrajudicial
costs, and punitive damages when correct circumstances. Preamble
talks about freedom of expression, promotion to access to justice,
etc…

Article is so broadly drafted that it goes beyond the preamble and
gives court discretion to go further than the tariff system (like
Ontario)
Abuse of procedure or concept of abuse of right (do have a right, but abusive in the manner)

As seen in Houle, just because a party has a right (Ex: contractual right to claim payment of a
demand loan) does not mean it can be exercised in any way.

Procedural law is a set of rules that oils the system (handmaid), but also a set of procedural
rights (ex: right to take a case before court). These procedural rights can be abused.

Quebec
o Dilatory motion  CCP 54.1
o Dilatory exceptions  CCP 168 Motions that delay the case and to add costs, etc.
o Must say that it is a procedural wrong, and there is therefore a causal relationship with
the damage caused.

Ontario
o Rule 57
o Must say that this kind of conduct allowed for increase of damages.
Important lessons from Royal LePage
o Balance  some of the ways in which our laws advance is by courts listening to new ideas and new cases
that will make legal history for example.
o Just because a case is fragile does not mean that it is abusive or unfounded.
o 50% of people lose! Just because you lose does not mean that the case was unfounded.
CVL - Royal Lepage Commercial Inc. v. 109650 Canada Ltd. [2007] QC CoA, p.173 – Extra-judicial costs rejected; no
abuse of civil justice system, allowed tariffs applied.
Facts
Issue
Holding
Reasons
Dalphond


Plaintiff (appellant) Royal Lepage took an action against 109650 to claim a commission owed to them.
The case was slotted for 5 days but took 10, with RL cross-examining for long periods of time and presenting a 3day defence.

The judge at no point indicated that the action was abusive and frivolous.

Not only did RL lose their case, but were ordered to pay $54,000 of extra-judicial costs, as the judge deemed that
the action was an abuse of the civil justice system.
Was RL’s case an abuse of the civil justice system such that defendant is entitled to extra-judicial costs?
No; appeal allowed, TJ overturned; RL wins

Bad faith and a waste of the judiciary’s time can result in awarding extra-judicial costs against that party.
o From Viel c. Entreprises Immobilieres du Terroir Ltee [2002] RJQ.

In this case, Judge stated that abuse and temerity resulted from [i] claiming a commission for a
sale when the mandate was for renting, [ii] basing case on presumptions, [iii] making useless
arguments about rejection of rental possibilities, [iv] length of proceedings, [v] demanding that the
judgment be executory without possibility of appeal.
o RL argues that the case represents the notion that an abuse involves knowingly wasting the courts time,
and that temerity is a question of fact.

Right to Extra-Judicial Fees
o Extra-judicial fees correspond to professional fees that each party must pay to their representation.
Generally, winning party in QC only has a right to tariffs and fees laid out in the Tariff Guide.
o But there are some exceptions

Art 15 of Tariff Guide enables the court to award special fees, for an “important cause.”

For example, public interest cases have involved extra-judicial fees awarded, and some
bankruptcy cases involve calculation of lawyer’s fees in payment.
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Greg Koenderman – JICP – Winter 2011

o

From Viel, CCP 75.2 and 524, the party that falls victim to abuse of the civil justice system
may reclaim extra-judicial fees.
Only applicable exception is for abuse of civil justice system.
Definition of Abuse of Civil Justice System
o From Viel – must distinguish between abuse based on the foundation of the case itself (manifests itself
before trial), and abuse of the civil justice system (manifests itself during/after trial). Abuse of civil justice
system involves, from the beginning, bad faith, on either side, and of uselessly and abusively pursuing
judicial debate.
o Baudoin & Deslauriers – Basis of abuse rests on both bad faith (the intention to be a nuisance) and
temerity (lack of reasonable and probable cause).
o Also need: behaviour contrary to the goals of the civil justice system. Can have a case solidly
grounded in law, but still abuse of the system through excessive procedure designed to increase costs
and cause stress.
o Legislator recognizes some examples of unacceptable behaviour in CCP 75.2 and 524, including
unfounded or frivolous action, or abusive or dilatory proceedings. Also, in CCP 501, para 1, and CCP 4.1,
reject weak cases with no chance of success.
o Must distinguish that weak and somewhat unfounded cases do not, by default, result in an abuse
of the civil justice system (Viel). To find abuse, there must be elements of bad faith or temerity, at
a minimum.
o What is meant by “temerity”? When a party brings a case where a reasonable and prudent person, in
the same circumstances, would be able to conclude that there is no foundation for the action.

Ratio
Application to the case
o Evidence does not lead to the conclusion that the intention of RL was to be a nuisance.
o Facts demonstrate, that in light of the facts and legal advice, it was possible to envision a scenario
designed to deprive them of a commission. It seems as though the defendant was attempting to rely on an
exception, and to that effect never sought to have the case thrown out.
o Judge never indicated that there was an abuse of the system. To the contrary, was demanding written
arguments and allowed a long deliberation.
o Nothing in the case showed that RL abused the procedural rights. Was simply exercising rights they
thought they had, without multiplying the procedures, and even interrogated a witness outside of the
courtroom.
Art 15 of Tariff Guide enables the court to award special fees, for an “important cause” (not the case here)
SLAPPS

Strategic Lawsuit Against Public Participation (gag lawsuit)
o Ultimately a vexatious and unfounded claim
o Les poursuites stratégiques contre la mobilisation publique – les poursuites - bâillons; basis on which Québec
amended the CCP
o Excuse for Bill 9

It is reaction by a company or entity whose actions or policies are being publicly protested.
o McLibel trial  London Greenpeace protested the working conditions, quality of food and exploitation of forests by
McDonald’s. McDonald’s instituted strategic lawsuit against London Greenpeace (defamation) to shut up protestors
and not to actually win damages.

McDonald’s should have fought back with information.

Purpose of this lawsuit is intimidation.

Free speech at issue

On an individual basis, every lawsuit is strategic  why would we consider it different here?
o A slap goes beyond the ordinary strategy of litigation

Action is taken without substantial merit

Action is not being brought with the intention of being won in court

Intention of the action is to force the protestors into costly litigation and to stop them from exercising political
rights. (Freedom of Expression)

Vast inequalities of resources between slapper and slappee.

Net effect is intimidation and denial of right to protest.

Suit will be dropped if protestors shut up

How can you SLAPP-back under existing law?
o Can counter sue for damages

Problem: they won’t be able to sustain it financially.

So need to give them SLAPP-back ability in pre-trial period.
o Summary Judgement (Ontario)
o Motions to dismiss an unfounded and frivolous action
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Greg Koenderman – JICP – Winter 2011
o
o
o

Problem: protestors get carried away and McDonald’s will probably find some grounds for the case.
Full indemnity costs based on abuse
Claim for punitive damages by SLAPPed party for intention breach of Charter right for intentional breach of Charter
right of freedom of expression.
Interim costs? (Hétu)
Specific legislation

In Canada, there had only been anti-SLAPP legislation in B.C. for a short period (repealed).

Quebec
o In June 2009, Quebec passed Bill 9 amending CCP  new articles 54.1 + (…)

Preamble  gives insight into intent of legislator. Here, indicates that purpose of these new
sections is precisely to have a SLAPP-back. Legislator did not choose to enact more discrete antiSLAPP legislation. However, very end of 54.1 speaks of purpose of amendment.

Seems that SLAPP legislation was vehicle that legislator used to combat many more types of
vexatious actions.

Any unfounded action

Or conduct that is vexatious

Or bad faith (Should this undo Viel?)

Or unfounded or frivolous claim

So the whole kit and caboodle here!
o Repealed Art. 75.1 allowed for dismissal, but only after examination (on discovery)

But by then, you have spent a lot of $.

Rationale – you do not know if it is frivolous until you have conduct the examination

However, 54.1 removes this requirement.
New Tools of 54.1…
o Court can initiate these proprio moto (On its own initiative), Reversale of BoP (new), dismissal of action or
plea, strike out submission, terminate or refuse an examination, require undertakings, order a provision for
costs, order a party to pay extra-judicial fees as damages, award punitive damages (New), characterize a
party as a vexatious litigant. Court can also do these at any time.
o 51.2  the burden of proof seems to shift onto the initiator of the action. (Reversal of the burden of Proof)
o 51.3  court is allowed to order advance costs in a sense
o 54.4  damages (extra judicial fees) in reparation of prejudice suffered, but also punitive damages (yet CCQ
 only when law allows for it (1621))
o 54.5  party can be declared a frivolous plaintiff altogether
o So although provision were aimed at fixing SLAPP issue, Judges see 54.1 as way to get around the tariff!
CVL – The Gazette, Court Victory for Citizen Participation, (2010) p. 197 – Anti-SLAPP Legislation
Overview – Quebec is the only Cdn province to have anti- SLAPP legislation
Couple complaining about toxic fumes being released from a dump.

SLAPP –legal action by companies against, typically, grass roots associations for large sums of money designed to force the
group into retreat.

Anti-SLAPP legislation grants defendants right to claim legal costs from Plaintiffs [art. 54.1]

Anti-SLAPP legislation is designed to support democracy and justice, which suffer when large, well funded corporations can
shut down grass roots organizations.
CVL - Construction Infrabec v Drapeau, 2010, p. 180– CCP art. 54.1 interpreted – Power to Impose sanctions for
improper use of procedure.
Facts: Drapeau, a Montreal Politician, says things in city hall about Construction K’s Construction Infrabec feel are insidious. CI
initiates legal action to have Drapeau retract his statements.
Issue: These are the steps established in CCP art. 54.1 – 54.4:
1. Has the defendant summarily established that the action is an improper use of procedure? [54.2 YES]
2. Has the Plaintiff rebuted the claim that the action is not an improper use of procedure and is justified in law? [54.2 NO
3. Does the defendant have the right to claim costs and damages for the prejudice suffered? [54.4 YES]
Maj (J. Turcotte):
1. Drapeau has a right to ask about Ks in his city and the action by the plaintiff is manifestly unfounded.
a. Citing Royal LePage, an action that is manifestly unfounded is not necessarily abusive, unless it is an abuse of procedure
in bad faith with the intention of causing harm to the opposite side.
b. Concludes that Drapeau has established summarily that the action against his is abusive.
2. CI has failed to rebut the claim that the legal action is abusive. Everything indicates they are motivated by the intent to intimidate
the defendant.
a. Claim for damages by Pl is a grossly exaggerated $150,000
3. Drapeau does have the right to claim costs under CCO Art 54.4: court can award damages equivilant to legal fees spent by
defendant.
a. Defendant request $20,000, but court considers this excessive and concludes that Pl should not have to pay entire legal
bill. Also considers the wealth of Pl and the meager means of the defendant to settle on damages of $15,000 awarded to
the defendant.
Ratio: Abus of procedure can be used to award damages/ extra-judicial costs to the opposite litigant. Low threshold to
transfer burden of proof on to Plaintiff to justify action.
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Greg Koenderman – JICP – Winter 2011
CVL – Industries Lassonde v Oasis d’Olivia inc, 2010, p. 185– CCP Art 54.1 used to award extra-judicial fees
Facts: Lassonde is suing Oasis Olivier for using the name Oasis on its Olive Oil based products, which could be confused with IL’s juice
products. IL already lost an action to prevent the trademarking of the name Oasis Olivier.
Issue: Is Plaintiff’s action frivolous, vexatious, such that defendant is entitled to damages under art. 54.1-54.6? [YES]
Maj (J. Zerbisias):

Defendants seek a condemnation against Pl for payment of all legal fees it has occurred in defending this action.

Def position: Pl action engaged in is manifestly unfounded, frivolous, vexatious, excessive, unreasonable, and an
attempt to bully them from using its trade-mark. [56]

Pl position: there is a serious legal issue to litigate, pursued in Good Faith, in the lawful pursuit of protecting their
trade-mark, and defend it from piracy, and proceedings were conducted in a reasonable manner, without excess or
abuse.

Pl sent an intimidating demand letter which essentially amounted to OO to cease existing – OO mounted a defence that required
money, time stamina, energy, and organization resources to succeed.

It was obvious from the record that Pl unnecessarily pursued a claim they knew would not succeed. They engaged in shotgun
litigation to attack the defendant on several fronts.

To compound matters, Pl withheld a relevant case that was prejudicial to their cause and cited useless cases.

Citing CCP art 54.4 – Condemns Plaintiff to pay $150,000 in extra-judicial and punitive damages to defendant.
Ratio: CCP Art 54.1 to 54.6 is a powerful tool of defendants to seek compensation for extra-judicial costs initiated by
dishonest plaintiffs. Judge awards 100% of extra-judicial costs and 25% punitive damages.
Interim costs (or advance costs)

Costs are ordinarily given at the end of the case, when a judgment is made on its merits. This can be years after the action is
commenced.
o However, this does not do much good in cases like Hétu or Okanagan, as these parties would never get to this point.
o Court is essentially saying: “In 5 years, we would have made that cost order, but the party cannot get there. So let’s
just advance to him the money he would have gotten anyway.”
o These are actually advance extra-judicial fees and not advanced costs. The money is to fund lawyers for litigation. In
Hetu, this is an advanced damage award and not costs (which are limited by the tariffs). To get damages in QC, you
require extra-contracutal liability = fault, liability and causation.

Why are interim costs so controversial?
o Three decisions (2 SCC) in very short period.
o Problems:
o Implies that party will win in the future!
o Worry that Judge is thus pre-judging the case, while he must remain impartial (leads to apprehension of bias)
o Such an award can comprise objectivity of court.
o Some may say that this problem is outweighed by access to justice.
o Major, J. in Okanagan  amounts to judicially imposed legal aid.

This is like restoring the judicial challenge program which was eliminated by the fed gov’t.

Why do we grant Interim costs?
o Improves access to justice, includes helping poor litigants.
o Ordered to remedy an inmabalance of financial ability of the two parties.

When will they be ordered?
o Historical Context: family context of poor wives, bankruptcy & trust cases for parties going against more powerful
litigants with deeper pockets.
o Modern Context: begins with Okanagan – moves from specific instances, to a more general rule.

Compromise
o Court may do it exceptionally  only when the criteria are clearly met. (Lebel, J. in Okanagan)
1.
2.
3.
Impecunious litigants

No means, and no other way to obtain funding (ex: no CFA, no NGO sugar daddy, no public fund,
etc.)
Prima facie merit

Goes to root of problem

Any apparent right
Special circumstances – i.e. public interest

Public concern that goes further than parties interest (Lebel’s focus in Okanagan)

Interets of litigation should transcend the individual litigant.

This essentially limits interim costs to instances where government is defendant.

Confusion in Little sisters:
o Lebel  Special interest includes public interest
o McLachlin Must be special public interest
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Greg Koenderman – JICP – Winter 2011
o
Note that in Okanagan, the trial judge refused interim costs, yet gets trampled on by SCC. In Little Sisters, judge
granted interim costs, yet still gets trampled. This sends a message: can’t win  how can we apply the law?
o
As we are going one way with the SCC, we are going in another in Québec with the Hétu decision (see below)
o Dalphond grafts Royal Lepage onto Okanagan
o Awards interim damages by applying CCP 2, 20 and 46
CML - British Columbia (Min. Forests) v. Okanagan Indian Band, SCC, 2003, p. 198; Test to grant interim costs
Facts
Issue
Holding
Reasons

Respondent bands logging on BC Crown land without authorization under white man’s Forest Practices Code of
British Columbia Act.

Bands argue that they have Aboriginal title on these lands. Bands argue that their challenge shouldn’t go to trial
unless the Court makes discretionary order as to costs (payment of fees and disbursements in advance and in any
event of the cause).

BC Supreme Court said it should be remitted to trial and declined order to costs.

CoA allowed Bands’ appeal (re: aboriginal rights or title), but concluded that although they did not have a
constitutional right to legal fees funded by the provincial Crown, the court did have a discretionary power to order
interim costs.
1) Was the CoA correct in ordering interim costs in this case?
2) What is the nature of the court’s jurisdiction to grant interim costs and the principles governing that
exercise?
1) Yes (though constitutional right to funding doesn’t arise). Appeal dismissed. (Okanagan wins, advanced costs
ordered).
2) Impecuniosity, meritorious claim, “special enough.”
(LeBel J) :

Court’s Discretionary Power to Grant Interim Costs
o Traditional cost principle is to indemnify successful party based on CML’s equitable jurisdiction and this is
recognized by provincial statutes and civil procedure rules in Canadian legal system.
o Traditional purpose of award of costs are to indemnify successful party for expenses sustained either
defending a claim that proved unfounded (if Df prevailed), or in pursuing valid legal right (if Pl prevailed).
I.
Costs as an Instrument of Policy - While power to order costs is discretionary. The ordinary rules are
followed unless circumstances/policy reasons justify otherwise. Traditional indemnification principle is not
the only consideration – Also want to encourage settlement and to prevent frivolous/vexatious litigation
and ensure litigation is conducted efficiently and fairly  costs as a tool to further the efficient and orderly
administration of justice.
II.
Public Interest Litigation and Access to Justice - Access to justice is another relevant consideration to
application of costs, esp. since Charter. For example, in highly exceptional cases involving matters of
public importance individual litigant who loses on the merits may not only be relieved of the harsh
consequence of paying the other side’s costs but may actually have own costs ordered to be paid by
successful intervener or party.
III. Interim Costs - Concerns re: access to justice and desirability of mitigating severe inequality between
litigants feature prominently in rare cases where interim costs are awarded. Usually when granted it is in
family cases where one party is at severe financial disadvantage that may prevent his/her case from being
put forward. Also available in certain trust, bankruptcy and corporate cases to avoid unfairness by
enabling impecunious litigants to pursue meritorious claims which would not otherwise be able to proceed.

Criteria for interim costs:
1) Impecuniosity: i.e. the party could not otherwise afford the litigation, and cannot find someone else to help
fund. Caron demonstrated that he exhausted other mechanisms.
2) Meritorious case: i.e. likely to succeed. Test gives judges authority to pre-judge the case: prima facie merit.
3) Special circumstances (Public Interest??): The issues must transcend the interests of the particular litigant;
must be a public interest that has not been resolved in previous cases  “special enough”.

Interim Costs in Public Interest Litigation
o If all three conditions are established, courts have narrow jurisdiction to order that impecunious party’s
costs be paid prospectively. Such orders should be carefully fashioned and reviewed over the course of
proceedings to ensure that concerns regarding access to justice are balanced against need to encourage
reasonable and efficient conduct of litigation, which is also a purpose of cost awards.

Appellate Review of Discretionary Decisions
o Discretionary decisions aren’t completely isolated from review. Appellate court may intervene where it
finds trial judge has misdirected himself with regard to applicable law or made palpable error in facts.
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Greg Koenderman – JICP – Winter 2011

Ratio
Application to the Facts of this Case
o Trial Judge made two errors in law:
I. Overemphasized importance of avoiding any order that involved prejudging issues and erred when he
concluded that discretion did not extend to making the order requested
II. Finding that contingent fee arrangement might be viable alternative for funding litigation isn’t
supported by any evidence and prospect of Bands’ hiring counsel on contingency seems unrealistic in
this case.
o 3 criteria are met
Dissent (Major J):

To award interim costs when liability remains undecided would be a dramatic extension of the precedent. Although
judge retains discretion, costs have always been awarded at conclusion of litigation because awarding them in
advance could be seen as prejudging the merits of the case and objectivity of the court.

Remedy lies with legislature and law societies, not judiciary.

Amounts to judicially imposed legal aid.

Criterion 3: too vague. It does not offer a clear standard for ascertaining whether the order should be made.
Provides no guidance. Does not provide an ascertainable standard or direction. Most public interest cases would
satisfy those criteria.

Criterion 2: makes the judge pronounce itself on the facts of the case before the actual trial starts.

Interim costs case law suggests narrow guidelines (marital and trust cases).

CML dictates three guidelines for discretionary, extraordinary award of interim costs: 1) party seeking the interim
costs can’t afford to fund litigation, and has no other realistic manner of proceeding w/ the case; 2) there is a
special relationship b/w the parties such that an award of interim costs or support b/w particularly appropriate; 3) it
is presumed that the party seeking interim costs will win some award from the other party.

CML is to advance by increments while generally staying true to purpose behind rules. New criteria broadens scope
of interim costs to an undesirable extent and are not supported in the case law.

Court can order interim costs when following conditions are present: i) impecuniosity; ii) meritorious
claim; iii) special circumstances sufficient to satisfy court that case is within narrow class of cases where
this discretionary exercise is appropriate.

In public interest litigation, special considerations come into play: i) & ii) like above and iii) issues raised transcend
the individual interest of the particular litigant are of public importance and have not been resolved in previous
cases.
Little Sisters Book and Art Emporium v. Canada, p. 208, 2007, SCC; Interim Costs; Okanagan test narrowed
Facts
Issue
Holding
Reasons

L, struggling gay and lesbian bookstore, seeks to have Customs bear financial burden of its complaint (applied for
advance costs to cover the four books appeal as well as a system review of Customs’ practices).

Legal history between the two: L previously won constitutional claim (Customs violated s.2(b) and 15(1)).

In its appeal, L asks for a reversal of Custom’s obscenity determinations and a declaration that Customs has been
construing and applying legislation in an inappropriate manner.

Trial: advance costs granted (Okanagan test satisfied)

Appeal: order set aside.
Should advance costs be granted?
No – appeal dismissed (Little Sister’s loses – not granted interim costs)
Bastarache & LeBel, JJ (majority)  No costs granted

Bringing an issue of public importance to the courts will not automatically entitle a litigant to preferential costs
treatment.

Public interest advance costs orders must be granted with caution, as a last resort, in circumstances where
their necessity is clearly established.
o The standard is a high one: only the “rare and exceptional” case is special enough to warrant an advance
costs award.
o Accordingly, when applying the three requirements set out in Okanagan ((1) Impecuniosity, (2) meritorious
case, (3) special circumstances), a court must decide, with regard to 3, with a view to all the
circumstances, whether the case is sufficiently special that it would be contrary to the interests of justice to
deny the advance costs application.
o Although there is no rigid test to determine what is “special enough”, following observations can be made:

The injustice that would arise if the application is not granted must relate both to the individual
applicant and to the public at large.

The advance costs award must be an exceptional measure (applicant must explore all other
options)

No injustice can arise if the matter at issue could be settled, or the public interest satisfied,
without an advance costs award.

Litigant must relinquish some control over the litigation process (ex: spending $)
o Court must be guided by condition of necessity.
o Cost awards are generally insulated from appellate review, but can be set aside if it is based on an error in
principle or is plainly wrong. [49]
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Greg Koenderman – JICP – Winter 2011

Criteria 3 of Okanagan is not met (special circumstances/public interest).
o The four books in appeal are extremely limited in scope
o No evidence suggesting that these four books are integral, or even important, to L’s operations
o No prima facie evidence that L’s constitutional rights have been violated.
o The issues raised do not transcend the litigant’s individual interests  four books appeal concerns no
interest beyond that of L itself and, as a consequence, is not special enough to justify an award of
advance costs
o Systematic review is unnecessary.
o Something does not rise to the level of general public importance simply because it concerns a public
body
o Not all Charter litigation is of exceptional public importance, even if it involves allegations of infringements
of freedom of expression  must prove that alleged Charter breach begs to be resolved in the public
interest.
o In general, only when the public importance of a case can be established regardless of the ultimate
holding on the merits should a court consider the public importance requirement satisfied.
McLachlin C.J. & Charron J. (concurring)  No costs granted [para 104-105]

Criteria 3 is not met, not because the case entirely lacks public interest, but because it does not rise to the level of
the special circumstances required to give the court jurisdiction to make the order  narrow class of cases;
extraordinary cases; order required to prevent systemic unfairness or injustice.

Interim costs are not unlimited, and even if they were awarded they would be limited to only funding the litigation.
Binnie & Fish, JJ (allow appeal, grante costs, capped at $300,000)

Ramifications of Little Sisters No. 1 go to the heart and soul of L’s present application.

Systemic discrimination by Customs officials and unlawful interference with free expression were clearly
established in the earlier case, and numerous Charter violations and systemic problems in the administration of
Customs legislation were found.

In its application for advance costs in this case, L contended that the systemic abuses established in the earlier
litigation have continued, and that Customs has shown itself to be unwilling to administer the Customs legislation
fairly and without discrimination.
o So not merely about 4 books (as majority understood).

Public has an interest in whether its government respects the law and operates in relation to its citizens in a
non‑ discriminatory fashion  interest of this litigation transcends L’s private interest.

Pre‑ conditions set out in Okanagan for an order of advance costs are satisfied.

Trial judge correctly exercised her discretion.
Although public interest advance costs are permissible, they are to remain special and, as a result, exceptional.
Ratio

What does Little Sisters do to the principles set out in Okanagan
o Confuses special circumstances vs. public interest.
o Note that same judge wrote both decisions  Lebel wants to shut the door he opened

See introduction, before even going to facts

Para 36  “are to remain special, and as a result, exceptional… granted with caution… as a last resort.”

Para 38  only rare and exceptional case

Para 40  exceptional measure

Para 41  only last resort.

Worry is that everyone who has a Charter claim could benefit as it falls under public interest.

“Not all charter litigation is of exceptional public interest…”

So he is not changing his tests, yet says he does not find public interest – characterizes issue as small
business problem with trade (4 books)
o Binnie (dissent)

“This fight is not just about four books”  different characterization.

Uses interesting empirical evidence  70% of all items seized by customs are gay and lesbian material (so
how can it really be about 4 books?)
o McLachlin (concurring)

Applies the test differently  public interest raised must be special (combines special and public)

So for Lebel, special interest includes public interest, while for McLachlin, must be special public interest
R v Caron, SCC, 2011, WebCT; Interim Costs awarded by Superior court for provincial court trial.
Facts: Franco Albertan makes illegal left turn, gets ticket, and challenges validity of law on basis of it being unilingual. Pl raises his
own money, but ultimately runs out and cannot afford long trial. He applied for interim costs. The appellant Crown says that the
superior court had no jurisdiction to make such an interim costs order and that even if it did have such jurisdiction the interim costs
order was improper in any event. Provincial court was confronted with language rights litigation of major significance that after
months of trial had reached the point of collapse. It was part of a salvage operation to avoid months of effort, costs and judicial
resources from being thrown away, when the issue would remain live.
Issue: Can the Alberta Court of Queen’s Bench — a superior court — make interim cost orders to fund an accused
defence against a regulatory prosecution in the provincial court.
Holding: (Binnie J.) YES – Caron wins, costs granted.
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Greg Koenderman – JICP – Winter 2011



Appeal by Crown for return of money they were ordered to pay interim was rejected.
How far does inherent jurisdiction of Superior Court to order costs extend for litigation in a court that is not a superior court?
A decision based on an incomplete record would not have put the languages issue to rest. C’s challenge was considered by
the courts below to have merit and in their view it was in the interest of all Albertans that the continuation of the constitutional
challenge be adequately resourced and properly dealt with.

Superior courts possess an inherent jurisdiction to render assistance to inferior courts to enable them to administer justice fully
and effectively,

TEST: Applying Okanagan and Little Sisters: “The superior court must decide, with a view to all the circumstances, whether the
case is sufficiently special that it would be contrary to the interests of justice to deny the funding application, or whether it
should consider other methods to facilitate the hearing of the case.”

The courts below made no palpable error (Housen) in finding that the accused had exhausted his funds and that he had no
realistic means of paying the further costs resulting from the continuance of the litigation. All other possibilities for funding had
been exhausted. C’s claim had prima facie merit. Finally, the case is of public importance. It was an attack of prima facie
merit on the validity of the entire corpus of Alberta’s unilingual statute books. The public interest requires that the case be dealt
with now. It is “sufficiently special” under the Okanagan/Little Sisters (No. 2) criteria.
Conclusion: The Alberta Court of Queen’s Bench possessed the inherent jurisdiction to make the funding order that it did in respect
of proceedings in the provincial court. There was no error of principle in taking into consideration the Okanagan/Little Sisters (No.
2) criteria in the exercise of that inherent jurisdiction. I would therefore affirm the decision of the Alberta Court of Appeal and
dismiss the appeal.
Concurring (Abella J.) The question of whether a statutory court (Not Superior) or tribunal has jurisdiction to order Okanagan
costs will have to be determined in a future case.
Ratio: Superior Courts possess inherent jurisdiction to make funding order for proceedings in Provincial Court.
Comments: seems to be reverting back to the Okanagan test.
CVL - Hétu c. Notre Dame de Lourdes (2005) QC CoA 2005, p. 234 – Interim award of extra-judicial fees.
Facts



Employee brought a claim for unfair dismissal to Commission des relations du travail (CRT) and won.
Employer, the city, began to challenge every single aspect of the decision on judicial review.
The guy got very fed up with this – he has no $, he has no job, and can’t afford the litigation  Filed an interim
order for costs.

Okanagan is a precedent, but cannot apply because costs are regulated by tariff and does not transcend the
individual interest (3rd criteria in Okanagan).
Can interim costs be awarded in this case?
Issue
Holding
Yes.
Reasons Dalphond

In QC, judge is more constrained to codifications and other legal texts (less creativity than in the CML)

However, 477 CPP allows judicial discretion regarding costs

As in CML jurisdiction, costs can be a policy tool to encourage settlement and prevent wasteful litigation.

Absent specific legislation, judge has discretion to award advance costs  3 criteria set out in Okanagan

Application is generally done at the beginning of the trial

Tariff costs include extrajudicial costs, but there are exceptions: Cause importante (Art. 15 of the Tariff), bankruptcy
proceedings, and abuse of process (75.2, 525 CCP). This last exception is applicable here.

CoA grants an interim order for damages based on abuse of process pursuant to Art. 46 CCP (sufficiently special
circumstances)
o The conduct of the City to date has been prima facie abusive

“L’appelant est victime d’une guerrilla judiciaire…”
o He is given $12,500 in advance as a provisional payment of damages (Dalfond specifically orders a
certain amount of costs – saying that if he is wrong, the amount can be adjusted, or even reimbursed
later).

If he wins, and finds that the process was abusive, he will be given more

If he loses, he might have to reimburse
Pelletier

Strong Criticism of Government: Para 97-98: “…c’est une réalité largement reconnue, le Tarif judicaire des
avocats est nettement désuet et ne peut plus jouer le rôle traditionnel d’indemnisation assigné aux dépens. Les
sommes qui y figurent au titre des honoraires judiciaires des avocats n’entretiennent, la plupart du temps, aucun
rapport avec les coûts réels supportés par les justiciables.”
Ratio

Interim Costs may be awarded in circumstances of abuse of process

Court invokes 46 CCP

As we are going one way at the SCC with Okanagan and Little Sisters, we are going in a different way in Hétu in Québec

Is Hétu a public interest case (if Little Sisters is not for instance) Unjust dismissal  no public interest!

If not, what motivates Dalphond, J. to make this interim award? Abuse of procedure, “Victime d’une guerilla judiciaire”

Is Hétu getting interim costs (either Tariff costs or higher s. 15 Tarrif costs)? No – getting damages, b/c imterim “costs”
would be the tariff rate of about $1,000.

Is this justified? Cites Okanagan, but is he applying the test?

What is the Hétu test and how does it differ from Okanagan?
o He is grafting Royal Lepage(extra-judicial fees) onto Okanagan( interim costs).
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Greg Koenderman – JICP – Winter 2011
54.1 et al… allows him to give $ for abusive procedure, for example = damages. Decides to do this at the beginning
rather than at the end.
o So giving interim damages outside the public arena
o Seen as a very judicially creative case
o Although QC is civil law in substance, it has adopted the CML procedural system.

So precedent to be applied (Lebel is cagy about this).
How does Dalphond justify what he is doing (judicial creativity)?
o Art. 46 CCP  Court has discretion

Arts. 2,20,46  powerful trio
What happens if Hétu loses the case?
o He has to pay it back!
o So these are conditional advance damages.
o


CLASS ACTIONS




GUEST SPEAKER
What is a Class Action?
o A procedural vehicle, not a substantive area of the law.
o Allows people with small claims to assert a right, which would otherwise be unprofitable to do.
Class action legislation in Quebec?
o Only around for 30 years, which is relatively new area of law.
Purposes of class actions:
o Access to justice
o Judicial economy
o Right an industry wrong or a bad course of conduct
Criteria for class action
o Art 999-1051 CCP, Court authorization
o First Step is “motion for authorization” from Superior Court Judge.
o Requires judge approval to even begin
o
4 CRITERIA FOR MOTION FOR AUTHORIZATION (art. 1003 CCP) Require all four!

Recourses raise identical or similar questions (mass must want same conclusion at the end of the
motion)

Facts seem to justify the conclusions sought

Individual lawsuits are difficult or impractical (both for the courts and litigants) (Imagine if thousands of
people pursued the similar interest). Also prevents conflicting judgements for similar cases.

Petitioner adequately represents the members (has suffered similar damages compared to others in the
class)

This is a very important element

Option Consommateur can be a class representative. Acts as advocate to represent masses in
pursuing certain matters.

Who may bring a class action (Motion for Authorization)?
o Individuals
o Non-profit organizations
o Companies with less than 50 employees

All these serve the goal of improving access to justice.

Important Amendments as of Jan 03 for authorization hearing
o Before, motion for authorization was joined by affidavit which could be contested by defendant, etc. this clogged up
the process – trial mechanisms were imported pre trial. This meant that class action mechanisms were not often used.
The amendments aim to improve access to mechanisms.
o New changes mean…

Affidavit no longer required

No right to file a written contestation

No right to file expert report before hearing

Evidence is admissible only if judge considers it appropriate
o Judge still retains discretion to insist certain things must happen in order to satisfy art. 1003.
o These changes tipped the scales in favour of plaintiffs and made authorization much easier.
o Constitutional challenge to these amendments rejected by Quebec C.A.

Quebec came to be a class action heaven as legislation more permissive in allowing class action to proceed.
Defendants attacked constitutionality. In 2005, the C.A. confirmed the validity of all these amendments.
o As a result, in theory, if motion is serious on its face and all 4 criteria are met, then it will be authorized.
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Greg Koenderman – JICP – Winter 2011
o
o

Since 2005, QC Sup Ct now has a class action division because of this onslaught. Upon filing a motion, you should be
able to see a judge within months and not years.
Art 1001 – Case Management – one judge is designated from day 1, so you always deal with the same judge for all
preliminary matters.
After motion is authorized
o Notice requirements

Public must be properly notified that their rights may be affected

Could be province wide or where products are sold, for example

English and French

In locale of public affected or where product is located

Notice must be submitted to court and authorized by judge.
o Right of appeal of failed motion for authorization. Def cannot appeal a granted motion for authorization.

Df has no right to appeal motion of authorization

Pl can however appeal decision to dismiss the motion.
Individuals may opt out, but this is inefficient as single claim has a negative economic value. Why go down the path on your own
when there is a collective process? Opting out will only make sense when each individual claim is worth a significant amount of
money. If you do not opt-out, you have opted in.

Class action lawsuit
o See Art. 1011 +
o Continuity of judge hearing the case – judge sets out timetable.
o Often, class action representative may change (requires judicial permission)
o Any settlement requires judicial permission because the process could be abused if it is not monitored
o Costs and fees

In QC normally, each party pays its own judicial costs unless there is fraud or bad faith, in which case the
abusing party may pay the other party’s legal fees.

In Ontario, losing party must pay legal fees of winning party as well as costs.

In class actions – lawyers almost always (99%!) charge pursuant to a conditional fee arrangement (CFA) as
these actions are extremely costly.

New case where plaintiff’s objected to lawyers’ fees. Judge considered: Complexity, Fraud, forensic analysis,
challenge of facing major law firms/corporations, number of case managements conferences, examinations.
Judge ultimately approved the Plaintiff lawyers’ contingency fee agreement.
o Fonds d’aide au recours collectif (provincially-sponsored fund providing financial assistance for class
actions)

Downside: government becomes your partner so they must be continuously informed.

They want to get paid also – reversionary interest (ex: give back to charities, etc.)
o Collective recovery vs. individual recovery (1031 & 1037)

Divided in the code

Collective  if after process, the Dft are condemned for a sum of money, the court can allocate a sum to
each individual. Everyone gets the same amount, perhaps according to a grid.

Individual  each person has a particular claim – whoever files claim individually also gets compensated.
Think financial advisor scamming investors – share is related to amount invested.
o Issue of “First one to the Trough”

Unique to QC - First law firm who files for lawsuit gets to run with it.

Elsewhere in Canada – Motion for carriage (each of lawyers will make case as to why firm should advance
the case). Judge decides who is best equipped to handle the case

QC system is ripe for copycat issues and therefore prone for abuses (ex: people sit at their computers, see
what is going on in other jurisdiction, and file claims based on that; firms will “invent” class representatives in
order to be the first one).

What if other firm has no class rep? Must actively find one or just put in someone’s name in the meantime!

So Ontario position may better deal with these problems

Recent decision overturned this as a hard and fast rule. The first filer was recently rejected as a
forum shopper and the judge ordered the second law firm filing would be authorized to lead the
lawsuit.

Types of class action lawsuits
o Pharmaceutical
o Credit cards
o Financial services
o Securities
o Consumer products
o Defective medical products
o Tobacco
o Importance of the Consumer Protection Act
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Greg Koenderman – JICP – Winter 2011

Growing importance of Class Actions
o In QC – there have been 872 motions for authorization between 1979 and 2006.

In QC only 30% of motions for authorization are authorized – shows a shifting away from QC as a haven.
o In Ontario – there have been 287 motions for certification between 1993 and 2001

What about National Class Actions?
o One of the most important areas now developing
o Ex: QC case seeks authorization on behalf of plaintiffs across Canada
o Problems

Every province has different class action procedure, CFA, procedure, etc.

So although wrong may be similar, implementations and laws may greatly differ.

How can we put common intention on a national track?
o New laws are being developed

Pfizer case – allowed authorization to proceed on a natural basis.

Test (for a judge to grant a National Class Action):
1. Is the claim factual or purely legal (and therefore only applicable in one province)?
a. Factual claim is the same across Canada
2. Efficiency vs. complexity – can it be managed better across the whole country?
3. Cooperation between lawyers and judiciary – must have partners in other provinces to implement
the class action; judge must ensure that what is being asked for is legally possible in other
jurisdictions.
a. Must properly disseminate notices.

Typically only granted where corporate entity admits liability and wants to solve problem.

Social purposes of class actions
o It is a good one! It helps as many people a possible in the context of one proceeding.
o Even if amounts awarded are low, at least this rights an industry wrong.

Quebec Tobacco Class Action
o Trial start on the merit this October 2011.
o Based on addiction, and diseases resulting therefrom.
o $5 Billion in claim.
o 14 day of hearing at the authorization level alone.
o All mechanism along the way were conducted at the Judge’s discretion, based on the costs involved, and the number
of Quebeckers involved. 1 Million people involved.

Class actions in Canada
o QC was first province to enact class action legislation in 1978
o All but one province current has class action legislation and many Acts are very recent (PEI has no legislation).
o Bulk of class actions take place in Ontario, Quebec, and B.C.
o Remains sole jurisdiction of Superior, s. 96 Courts.

Can you take a class action if you do not have class action legislation – common law class actions?
o “Common law” representative action – Western Canadian Shopping Centres v. Dutton (2001) cited in Hollick

You don’t need legislation to take a class action

Example: taken against Merck in PEI for Viox (“copycat” class action – took place in the US first).
o Class Action legislation is good b/c it shows judges exactly what they need to be looking for in order to authorize a
motion.
o CCP 59(2) Para 2 – when several persons have a common interest, any one may appear on behalf of all if he holds a
mandate  being able to sue on behalf of others.

“Representative actions”

Before class actions, this was the only way of getting a large group together to sue. This is a segway into
class actions.

Requires: consent and knowledge of every members of the class  different than class actions

Some class actions could actually have been taken as representative actions (ex: Toronto plane going off
runway – you know the people there).

Hollick (2001)  court says that you do not need class action legislation to take one. The court can take a “common law”
representative action. The disadvantage is that you do not know all the rules.
Requirements for Authorization
2 step procedure for class actions: (1) authorization, (2) trial
1.
AUTHORIZATION (OR CERTIFICATION IN ROC)
o Is not on merits
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Greg Koenderman – JICP – Winter 2011
o
QUEBEC  4 requirements (CCP 1003); must satisfy all four.
a) Recourse raise identical, similar, or related questions of law or fact (commonality)

Otherwise, would not be able to define the class.

Does not require identical harm, but the common story that is worthy of judicial economy.

Lallier (2007)  Court can be strict regarding commonality
b) Facts seem to justify the conclusions (prima facie cause of action) (Similar to Interlocutory motions)

Marcotte v. Longeuille (2009) dissent  “good colour of right”

Blurry line between this prima facie threshold and delving into merits of the case.

Malhab  Arab and Haitian taxi driver taking action against radio host. Some say this class
action should not have been allowed based on this criterion, since group defamation was not a
part of Canadian common law at the time. Class actions are not the place to make new law
based on merits, but rather to stop bad behaviour.
o Sup Crt – Authorization rejected (can appeal rejected authorization)
o CoA – Authorization Approved (cannot appeal approval)

Extremely rare for a Class action to go to trial on it’s merit. In 99% of cases
the litigants settle after the point of authorization.
o Sup Crt – Hears Class action on Merits – Group Defamation. Taxi drivers won at trial.
o CoA – Appeal on Merits – reversed decision – there is no Group Defamation
o SCC – Appeal on Merits – upholds CoA dismissal – No Group Defamation
c) Composition of the group makes individual lawsuits difficult or impractical

100 condo owners vs. 1000 taxi drivers (interesting twist in Marcotte – Don’t need a CL A b/c
this is about nullity of legislation. One person succeeding applied to everyone. Not that they
didn’t have a case, but they didn’t have a Class Action)

Not whether it is preferable or better, but difficult or impractical.

For example, you do not know who else out in society has the same problems.

When you know/can name every plaintiff you normally do not proceed by Class Action.
d) Petitioner is adequate class representative

Courts are applying more scrutiny on the Class Rep to make sure this is legit.
o
ONTARIO AND ROC  5th criteria
a) In Ontario, Act requires a fifth elemet, in addition to similar criteria to art. 1003, that the class
proceeding be the “preferable procedure” (Residual Discretion)
b) Ontario legislation is similar, but not identical to Quebec.

This is what Hollick hindered on – all previous criteria met, yet judge exercises residual
discretion

What does this mean?
o Courts have an overall residual discretion
o Is invoked at the end.
o “Preferable”  when it accomplishes 3 important policy objectives (Hollick):
1) Judicial economy (if individual recovery is so cumbersome, there is no real
benefit)
2) Access to justice
3) Modification of behaviour (Goal should not only be to compensate people, but
also to take bad products of the market, to stop bad practices, etc. However, does
payout really affect multi billion dollar corporations? Cf. efficient breach – part of
doing business)
o
o
Marcotte v. Longeuille (2009) dissent  Jutras says “It is true that the class action averts
the duplication of proceedings and is conducive to the effective resolution of common
issues. It also makes economies of scale possible and helps deter wrongful conduct. On
the other hand, a class action can also lead to procedural and administrative complications
— no one benefits from overburdening the courts with class actions that serve no positive
social or legal purpose… In every case, the anticipated benefits must be reviewed to
ensure that a representative proceeding would in fact serve the social purposes attributed
to it.” (Para 73)

In other words, do not automatically assume that a class action is a great thing.
Application to Hollick

Judicial economy  Court says that members of class all live at different
distances from the land fill, so the damages suffered are all different. Everyone
will therefore be required to prove damages, leading to no judicial economy.
Argument may however not be convincing because damages suffered will always
be different to a certain degree (i.e. overcharging interest by Amex – everyone
has a different credit card bill). We could always make a grid when deciding
damages. Flipside: maybe McLaughlin is just trying to limit the class here.)
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Greg Koenderman – JICP – Winter 2011


o

Access to justice  if there is another way these people can get justice, then
maybe a class action is not the appropriate route. Here, the wrongdoer had set up
a no-fault fund.
Modification of behaviour  environmental commissioner and inquiry by minster
is better route. Other possible argument would have been fact that fund set up
shows company holds itself accountable
Does the 5th criteria exist in Quebec?

Not on basis of CCP 1003: Courts are supposed to authorize the action if it meets all 4 criteria  no judicial
discretion

However, QC judges do want this discretion and therefore invoke CCP 4.2, guiding principle (proportionality
 refers to proportionality of costs, nature and purpose and of complexity of dispute).

“Guiding principles”
o Lallier (2007): “Par ailleurs, dans Agropur c. Bouchard[FN4], la Cour a reconnu au juge
une marge de manoeuvre discrétionnaire dans l'examen de chacune des conditions
fixées à l'article 1003 C.p.c. Il s'agit en quelque sorte du même type de pouvoir
discrétionnaire que celui que la Cour suprême a reconnu au juge dans le cadre de la loi
albertaine[FN5], à la différence qu'il s'exerce non pas de façon globale, une fois examinés
les critères pertinents, mais plutôt à la faveur de l'examen individuel de chacune de ces
exigences.” (Para 20)  discretion lies in interpreting the different steps, as opposed to
discretion at the very end, as an additional factor.

Marcotte v. Longeuille (2009)

Before Marcotte, QC did not have an overall discretion, but rather a discretionary margin within the
criteria (some may argue that it amounts to the same).

Brief summary of Marcotte: Tax payers contest law.
o Policy: Do we want class actions to be vehicle to quash a law? Think of the implications of
this – if we attack a law for being unconstitutional or contravening the Charter, we do not
institute a class action. Yet everyone who is affected by this law gets benefit of no longer
being subject to it. So why didn’t Marcotte not just challenge the law’s constitutionality?
o CA says it is not the appropriate procedure, SCC agrees

Marcotte gives us 2 different ways of looking at discretion
o Majority LeBel  Not as clear as dissent; Discretion
o Dissent – no right to invoke discretion to decide whether this is appropriate or not. Court
cannot throw out the case because of proportionality. Therefore, you cannot say that it is
not a preferable procedure.
Marcotte  2 distinctive way of looking at criteria vs. discretion are seen and lead to different
outcomes.

Marcotte maj  what they are really after is that one of 4 criteria is not met, but rather than
a class action would just not be appropriate

Dissent – should rather use discretion in applying the 4 criteria (there is not a fifth), but
they are met here regardless.
We do not have many class actions on the merits – why?
o So in most cases, when they are authorized, the get settled as all money, time and legal power is invested at the
authorization stage.
o Malhab also shows the very fine line between authorization and merits.

Malhab is about group defamation does not exist in Canada today. Dicey questions – defamation is aimed at
an individual, and there are other mechanisms to deal with what would otherwise be “group defamation” (cf.
Hate speech provisions).

The judge authorizes the class action, but says that she is not judging on the merits whether there is group
defamation. However, how can there be an appearance of right in the first place then?

Decision has been criticized – class action should not have been authorized at all.
Powers of the Court

Class actions are totally different from regular actions.

There is for example special case management (the judge who gets the case at the very beginning (authorization) is the judge
who sees the case through until the end).

Therefore, the powers given to the court are unusual.

The true adversarial process is eroded as so many powers are put into the hands of the judge as opposed to the parties.

Redifining the class (art. 1005): see Malhab
o Court has the right to redefine the class
o In Malhab, the class as defined by the parties was unworkable (all Arab and Haitian taxi drivers), however, the court
redefines it “all taxi drivers whose mother tongues are Arabic or Creole”.

Approve class action settlements and lawyers’ fee (Landry v. CSN and art. 1025)
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Greg Koenderman – JICP – Winter 2011
o
o
o
o
o
o
o
o
Usually when parties settle, no one cares (it is private)
In a class action, all settlements must be approved in all jurisdictions by a judge as there is so much opportunity for
abuse. Called a “fairness hearing”, and judge has COMPLETE discretion. Looks to fairness and substance to see
what case would get on the merits if it actually went to trial. Unlimately, is it good for the members of the class?
Unlike usual CFAs, amount at stake in class actions are huge.
Lawyers fees are not always approved. Landry reduced the lawyers fees despite no objections.
Landry case shows us that approval is not a mere rubber stamp  court seeks to protect payout to individuals.
Other view – it is not just about the individuals getting the most they can, it is about stopping the bad behavior.
Outstanding point in Landry  no one contested in class (so was judge being paternalistic?)
What about absent class memebers? Who protects them? At the settlement point they may not even know they are
class members? Judges approve Notices, to protect absentee class members.
Constitutional Issues

Why is there a 2-step process and is it wise?
o Good idea: funnels cases
o However, it adds time, costs, complexity  not always judicially economic

To what extent should it be limited?
o Can’t bring in testimony
o Can’t appeal if lose

QC  appeal is particularly draconian

Ont  allows plaintiff to appeal, but defendant can only appeal authorization with leave

On what basis were limitations challenged?
o Constitutional basis  right to full and fair hearing (open court principle)

S.23 QC Charter: “Every person has a right to a full and equal, public and fair hearing by an independent and
impartial tribunal, for the determination of his rights and obligations or of the merits of any charge brought
against him.”
Other issues

Policy Considerations
o Class Actions are all about Behaviour Modification of Defendant, not about compensating victims.

Appeal
o Can’t appeal if lose

QC  appeal of Authorization rehection is allowed, defendant cannot appeal authorization.

Ont  allows plaintiff to appeal, but defendant can only appeal authorization with leave

Costs
o If you lose motion to authorize, QC tariff makes you pay only $50!
o Kerr v. Danier Leather

Until then, no one really paid attention to costs in class actions; decision had chilling effect on class actions
and is a good reason for not taking a case on the merits.

Members of class  share holders arguing non-disclosure of information when Danier went public.

Kerr lost the case – who pays Danier Leather?

The class rep! (Here, sophisticated commercial party)

Yet what would happen if class rep was consumer?

This has had a chilling effect on class actions.

Notice requirements and “opting in”
o Canada: Opt-out regime, deemed opt-in. (if you fit description, you are in the class, unless you want to opt out (to take
a personal action for example)).

Ambit of class actions
o Not restricted, but should it be limited?

Relationship between arbitration clauses and class actions (Dell)
o Dell  not only did court enforce arbitration clause in an adhesion contract, but it overrode a consumer class action.

First to trough versus mortion for carriage
o QC  first to register
o ROC  who is best to carry the case – Motion to carry

National class actions
o Can have Parallel Class Action

When everyone in different jurisditions suffers same damage. Not a National Class Action.

Should we link these so we do not have contradictory judgements? Should but don’t. But this is usual, we
don’t have uniformity of law in Cadada.
o Multi-Jurisdictional

CL A in Ontario against ON defendant, but definition of class includes people from more than one
jusisdiction.

See Lapine v Canada Post. Cdn Post sold lifetime internet service for $9.99, and cancelled a few months
later. Class definded as anyone who bought internet service. Lapine argues that he doesn’t want to be a part
of the class, and he didn’t opt out b/c he doesn’t read the papers where notice was posted.

SCC ruled the Lapine can be out.
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Greg Koenderman – JICP – Winter 2011

Individual versus collective recovery
o CCP 1031 (collective recovery)  have a good idea of number of people in the class (about 1000 taxi drivers in
Malhab x 2000 = 2 000 000 collective damage award. Victims can be divided into groups – yet they do not have to
come in to prove their individual damages)
o CCP 1037 (individual recovery)  We do not know how much each of the people who had an Amex card got screwed
on interest after they had paid their bills. Court says – let people come to clerk, prove individual damages, and
recovery will be given based on this amount.
CCP 999-1051
1000
1002
1003
- Class Action
The Superior Court hears exclusively, in first instance, suits brought under this Book.
A member cannot institute a class action except with the prior authorization of the court, obtained on a motion.
The motion states the facts giving rise thereto, indicates the nature of the recourses for which authorization is applied
for, and describes the group on behalf of which the member intends to act. It is accompanied with a notice of at least 10
days of the date of presentation and is served on the person against whom the applicant intends to exercise the class
action; the motion may only be contested orally and the judge may allow relevant evidence to be submitted.
The court authorizes the bringing of the class action and ascribes the status of representative to the member it
designates if of opinion that:
(a) the recourses of the members raise identical, similar or related questions of law or fact;
(b) the facts alleged seem to justify the conclusions sought;
(c) the composition of the group makes the application of article 59 or 67 difficult or impracticable; and
(d) the member to whom the court intends to ascribe the status of representative is in a position to represent
the members adequately.
Ont. Rules of Civil Procedure 12 – Class Proceeding
CML - Hollick v. Toronto (2001) SCC, p. 249; Requirements for ON Class Action, Rejected
Facts
Issue
Holding
Reasons
McLachlin
Hollick is suing Toronto for damages from a landfill. He is defining the class as all people who live within a certain
quadrant neighbouring the landfill.
Does this case meet the requirements for class action prosecution?
No, denied on 5th element of “preferable procedure”

Before the Class Proceedings Act, class actions were prosecuted under Rule 12.01 of Rules of Civil Procedure.
This was not enough in face of increase of class actions, and their complicated nature.

New CPA also recognizes the advantages inherent in the class action as a procedure.

Class actions provide 3 advantages:
1. Aggregate similar individual actions  serve judicial economy by avoiding unnecessary duplication in
fact-finding/legal analysis
2. Improve access to justice  distribute fixed litigation costs amongst a large number of class members makes economical prosecution of claims that any one member of class couldn't prosecute on his/her own
3. Serve efficiency and justice by ensuring that actual and potential wrongdoers modify their behaviour to
take full account of the harm they are causing, or might cause to the public.

Courts thus should not take an overly restrictive approach to the legislation, especially at the certification
stage.

The Ontario Law Reform Commission had suggested a 'preliminary merits test'  this was rejected.
o The certification stage is NOT meant to be a test of the merits of the action  only focuses on the form
of the action.
o The question is not whether the claim is likely to succeed, but whether the suit has appropriately
prosecuted as a class action.
ONTARIO'S REQUIREMENTS
A.
B.
Cause of action: Yes
Identifiable class: Yes
o The appellant defined class by reference to objective criteria (owned or occupied property inside a
specified area within a specified period of time).
o Class is bounded.
o Can objectively measure whether someone is member of class without reference to merits of action.
C.
Claims of class members raise common issues: Yes
o Underlying question: whether allowing the suit to proceed as a representative one will avoid
duplication of fact-finding/legal analysis

An issue is common 'only where its resolution is necessary to the resolution of each class
member's claim. substantial ingredient in each of class member's claims.
o If each class member has a claim against the respondent, some aspect of the issue of liability is common
within meaning of s. 5(1)(c)
o It's usually easy to see the rational connection (ie. defective product - it's everyone who used it and got
injured, plane crash - everyone who was there) . Here, it's harder - not clear that everyone who lived in
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Greg Koenderman – JICP – Winter 2011
o
o
o
o
Ratio
that area was injured
Hollick would have to show that the class was not unnecessarily broad (i.e. class could not be defined
more narrowly without arbitrarily excluding some people who share the same interest in the resolution of
the commercial issue
Sub-question: to what extent should the class representative be allowed or required to introduce
evidence in support of a certification motion?
o Class rep is required to come forward with sufficient evidence to support certification, and allow
opposing party opportunity to respond with evidence of its own.
This does not require affidavits from class members, just from the representatives
Class representative must show some basis in fact for each of the certification requirements set
out in s. 5 (except for 1st 'cause of action' one b/c there's a rule saying you can't strike a claim just b/c
there's no cause of action)
D. Class proceeding is preferable procedure for resolution of common issues: NO. [32]
o Here, you look at the 3 advantages: (a) judicial economy, (b) access to justice (c) behaviour modification
o "Preferable" meant to be construed broadly - (a) whether class proceeding would be a fair, efficient, and
manageable method of advancing the claim and (b) whether a class proceeding would be preferable (to
joinder, test cases, consolidation, etc.)
o Have to look at common issue in context  it's about the common issue and not just the common
claims (higher threshold than just 'best way of solving members' claims', but lower than in the US, where
it has to be the best way to resolve the 'controversy').
o Here: class action not preferable means of resolving class members’ claims:

Judicial economy: common issue is negligible compared to individual issues – some areas
were probably more affected than others  unsure whether resolution of common issue will
advance the action

Access to justice: if it’s true that the claims are so small that they aren’t worth pursuing
individually, maybe the Small Claims Trust Fund would be better (no-fault scheme that can
provide redress quickly). If the SCTF is too small to handle the claims, then they should just bring
individual actions. The existence of a class action scheme is one factor that the court should
consider when evaluating access to justice

Behaviour modification: without class actions, those who cause widespread but individually
minimal harm may not take into account full costs of conduct. Either SCTF or individual actions
will force the City of Toronto to absorb the costs/be accountable, so unnecessary for there to be
class action

Also, Ontario has policy mechanism allowing people to proceed to Environmental
Commission for remedies – class action therefore not preferable/best way of
resolving.

NB: Stipulations were not met here, but door is still open for env’tal class actions!
E. Representative plaintiff: Not considered.
F. Representative would faily and adequately represent the interests of the class.
Requirement for class actions in Ontario. Failed b/c not the “preferable procedure” for proceeding. This
element is not available in QC Class Action.
CVL - Malhab v. MetroMedia (2003) QC CoA, p. 256 – QC Class Action criteria – Group definition
Facts
Issue
Reasons
Rayle
J.A.
Malhab is a cab driver. He is requesting authorization to launch a class action suing Metromedia for defamatory
statements made against cab drivers whose mother tongue is Arabic or Creole. Andre Arthur was a radio show host,
and he had an open call-in that was crazy racist. The class action would be all people who were taxi drivers on the
island of Montreal on Nov. 17, 1998 and whose mother tongue is Arabic or Creole. The Superior Court refused to
authorize his class action. He is appealing
Does the class action meet the requirements for authorization? [YES]
Is Metromedia liable? [YES]
Superior Court held that he failed on steps (b) and (c) of Art. 1003 (facts alleged justify solution sought//composition of
groups makes it difficult to apply 59 or 67 CPC  recourse in defamation and recourse of class action are incompatible
(defamation supposed to be against individuals, which would be within purview of 59/67 – you can’t defame a big group
– no causation)
To determine the case, have to examine the following questions of law/fact:
1. Was the person who made the statements an employee of Metromedia?
2. Did he make those statements?
3. Were the impugned statements discriminatory?
4. Can Metromedia be exonerated because there was no reference to individuals, but just to the group?
5. What is the amount that each person gets?
Is a class action an effective form of recourse?

Existence of the Human Rights Commission does not preclude people from going straight to the courts if they want.

Courts can thus consider if this is a class action per 1003. NB: evaluation under 1003 does NOT permit courts to
109
Greg Koenderman – JICP – Winter 2011


Ratio
make judgments on the merits of the case. Procedural requirements only.
1003 has an imperative character: if the 4 requirements are met, then the authorization must be given
To see if the case meets 1003(b), have to do two things:
o
(1) Verify if the defamation is serious, if there can be group defamation

To have a defamation claim, have to show that the speaker committed fault  statement hurt
reputation, and that person suffered injury. This can be experienced by individuals as well as
groups (Prud’homme)

Per Ortenberg, there are three possible situations in ‘group defamation:
o Defamation is against a large group and gets lost in the crowd? No compensation
o Defamation is against a group, but some members are designated/easily
identifiable? Those members get compensation
o Collective defamation is against a smaller group – easy to assume that each person
is personally attacked. Here, all members get compensated.

Determine this on a case-by-case basis. Here, obviously, it’s the third one.
o
(2) Is there incompatibility between class actions and defamation actions? NO

Have to be able to show that you, personally/individually were targeted by the defamation

Here, any taxi driver who is Arabic/Haitian would be able to show that he had been targeted
by defamation (ie. each one could bring an individual case against this radio broadcaster)

Class actions are meant to improve efficiency & ameliorate access to justice

Class actions are a procedural remedy – do not add anything to substantive law

QC civil law doesn’t have any specific provisions on defamation

We allow physical injury to be the subject of a class action – there is nothing in 1457 saying
that we should moral damage any less seriously. Should thus be permitted to be topic of class
action if the injury is certain, direct, and real.

Moral injury can be more pernicious than physical injury, precisely because it is less apparent

Would permitting class actions for defamation affect freedom of expression? NO
o The defamatory nature of the statements still has to be analyzed from the perspective of the ‘ordinary
citizen’ (objective norm) – this limitation protects freedom of speech

Does the composition of the group meet 1003(c)? YES
o Judge has lots of discretion to authorize class action per 1005 CCP
o There are probably about 1000 taxi drivers affected – this is high enough number to make application of
CPC 59 or 67 difficult.
o Who is Arab or Haitian? Define it here based on the radio hosts’ own statements – define group as all
persons who held a taxi permit on Nov. 17, 1998 whose mother tongue was Arabic or Creole.
Group must be defined by objective criteria
Everyone in the group must have suffered a harm (as opposed to the group itself)
If the harm is individual by nature, class actions are difficult, but not impossible to institute.



CVL - Lallier v. Volkswagen Canada Inc (2007) QC CoA, p. 263; QC Class Action – Overbroad Class and Conclusion
Sought (Rejected)
Facts
Issue
Holding
Reasons
Ratio
Appellant buys a used Volkswagen in 2001. Soon after, the interior of the door starts falling off. He finds out that this is a
common problem in Volkswagens. He starts a class action suit, naming all people (physical or legal) who owned/have
owned a Volkswagen Golf or Jetta built between 1993-1999, in which the interior of the doors is falling off.
Does the class presented by the appellant: a) raise identical, similar or related questions of law or fact (1003(a) CCP)
No
Under 1003(a):

The trial judge made no error in law or fact. It's wrong to assume that you can just go to court with an overbroad
class, and have the judge correct it - the judge has this power, but it's discretionary, so overbroad classes can
be thrown out.

The class in this case is circularly defined - the class definition depends on the very issue being litigated – i.e. that
the class of people is those with "premature" detachment of the panels, BUT they are suing to determine what
premature means, leaving the class essentially undefined.

The class is not sufficiently narrow that identical results could be expected among the litigants - some people who
are members of the class could win, while others would not, depending on why the panels fell out prematurely.

It's simply too broad a category, raising too many potential factual scenarios.
Under 1003 (b):

Not technically necessary to deal with this since it didn't meet (a)

However, the wording of the class definition does not require that unsticking of the panels be serious, nor that it be
existing previous to the possible class-members' acquisitions of the cars.

The facts therefore do not justify the conclusions sought.
Under CCP 1003(a), class must raise identical, similar, or related questions of law or fact  interpreted
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Greg Koenderman – JICP – Winter 2011
narrowly.
The requirements of 1003 CCP do not allow for overbroad, heterogenous or circular definitions of the class.
CVL - Landry v. Syndicat du transport de Montreal (2006) QCSupC, p. 269 ; Class Action lawyers fees can be altered
by the Court
Facts
Issue
Holding
Reasons
Ratio
Landry started a class action against the STM for damages caused by striking janitorial workers (pressure tactics, illegal
protests, etc.). Landry went into a conference à l'amiable, and came to an agreement that the class would get $925,000.
Put a notice out in the paper calling on class members to come to the homologation, but nobody showed up. They
decided there that the lawyers should get $277,500 for their work (based on their CFA). STM appealed, saying the
lawyers should not get so much of the payout.
Can the court intervene in this transaction, and, if yes, is it reasonable?
Yes (but not quite)

Transaction as a whole was reasonable. Lawyers worked 1000 hours, put in considerable work, taking on a lot of
responsibility and risk (which can be considered), and are entitled to their standard $150/hour fee.

However, asking for an extra $125,000 is not reasonable - so the court decides to pare it back to $225,000 total.

Article 4.2 of the CCP applies, allowing them to do this: procedural acts chosen have to be justified considering the
circumstances.
Courts have the ability to intervene to render the division of awards judgments reasonable, even in settlements,
if they are unreasonable.
CML – (A)Kerr v. (R)Danier Leather (2007) SCC, p. 274, Class Action – costs awarded to Corporate defender ; Class
Rep held liable for costs
Facts
Issue
Holding
Reasons
Ratio
Danier Leather made a public offering based on projected numbers of its fourth quarter. When the public offering
opened, the projected numbers were an accurate representation of what the company had projected. However, before
the public offering closed, an internal analysis showed that fourth quarter numbers would be lower. Danier did not
modify prospectus containing public offering. The appellants bring a class proceeding for prospectus misrepresentation
under s. 130(1) of the Ontario Securities Act. Costs were awarded at CoA to Danier.
Did the Danier have an obligation to disclose?
Did the Court of Appeal err in rejecting the Kerr’s demand for costs?
No

s. 57 of the Act mandates disclosure of a change in a prospectus that is accurate at the time of filing in the case of
a ‘material change’, which is defined in s. 1 as a change that could reasonably be expected to affect the market
value or price

A change in intra-quarterly results does not qualify as a material change and therefore there was no breach of s. 57
by the respondents.

The Court of Appeal held that there was no more reason for the successful appellants (Danier) (as they then were)
to carry the costs than there would have been in any other commercial litigation. The appellants (Kerr) (as they
now are) argued that because this was a class action of public interest, and for general principles of
access to justice, they should be awarded costs—as per s.31 of Courts of Justice Act.

The award of costs is at the discretion of the Court of Appeal, and the SCC should thus only interfere if
gross error.

Though many Canadian investors will undoubtedly benefit from the clarity established by the decision in this case—
this does not change the commercial nature of the litigation. Essentially, the Court held that we were not in this
case dealing with BOO HOO parties, and that there was therefore no need to derogate from status quo cost
allocation in the present case.
The award of costs is at the discretion of the Court of Appeal, and the SCC should thus only interfere if gross
error.
CVL – Marcotte v Longueuil, 2009, SCC p. 294 – QC Class Action requirements; Proportionality required; annulity of law
not Class Action.
Facts: Longueuil was amalgamated and under new city residents paid higher taxes as the tax rates were equalized. Marcotte seeks to
bring a Class Action against the city to have the tax increase struck out, and repayment of increased taxes. TJ and Coa held that Class
Action is not available to a litigant seeking to have a municipal bylaw quashed, since a declaration of nullity in one case would apply to
everyone, and therefore the same effect is achieved.
Issue: Does CCP art. 1003 give Marcotte the right to initiate a Class Action against municipality? [NO]
Maj (J. LeBel)(5): CCP Art 4.2 gives judge discretion to assess the appropriateness of action.

CCP Art 1003 requires the following conditions before a Class action is authorized:
1. Recourse of the members raise identitcal, similar or related questions of law or fact; [YES]
2. The facts alledged seem to justify the conclusions sought [Questionable]
3. The componsition of the group makes the application of art. 59 & 67 difficult or impracticable; and [Questionable]
4. Representative is in a position to represent the members adequately. {YES]

Conduct of Class Action remains subject to Art 4.1 and 4.2 requiring good faith and proportionality.
o
The principle means that litigation must be consistent with the principles of good faith and of balance b/w litigants
and must not result in an abuse of the public service provided. [43]

QC CoA has consistenly held that Class Action is not the appropriate procedure for seeking to quash a municipal bylaw.

The effect of proportionality casts serious doubts on the appropriateness of bringing class actions to achieve the purpose being
pursued in this case.
111
Greg Koenderman – JICP – Winter 2011

Not that this isn’t a valid claim, but a Class Action is not required b/c once the law is annulled for one person, it
applies to everyone.
Dissent (J. Deschamps)(4): Issue is whether QC Courts have a discretion to grant immunity to municipalities from class action suits
for the recovery of wrongfully collected taxes, and in so doing block ratepayers access to justice? [NO]. does not think judges have
additional discretion outside of art. 1003

Frames the question much differently from the majority.

Art. 4.2 does not add an additional condition to be satisfied for a Class action. Cites Beaudoin [75] that this judicial discretion
does not impose an additional fifth condition on Class Action proceedings.

Art. 4.2 was enacted pursuant to the recommendations of the Lord Woolf report in order to improve access to justice and to make
judges case managers. Judges as case managers was not meant to prevent a party from exercising a right.

Class Actions are also designed to improve access to justice. So it is ironic that two provisions designed to improve access to
justice are being used against eachother to ultimately prevent access to justice.

Held: Would have found all the requirements of art. 1003 satisfied and would have allowed the Class Action to proceed.
Ratio: Class Action in QC remains subject to the principle of good faith and proportionality and must be used properly in
order to be certified in Quebec. This amount to a degree of judicial discretion beyond the requirements of art. 1003.
CVL/CML - William McNamara, “Multi-Jurisdictional Class Action in Canada” p. 317 – Order and Fairness are the
rerequisites to enforce foreign judgements







National Class actions are prominent features of the Cdn landscape
Three types in Canada:
o Opt-in: out of province people are excluded unless the “opt-in”. Ab, BC, Nfld, NB
o Opt-out: out of province members are bound unless the “opt-out”. Man, Sask
o No set multi-jurisdictional legislation, but based on opt-out. ON, QC, NS.
Senesible to have questions of liability of defendents determined as far as possible once and for all in a single case. LaForest:
“defendents would not be any worse off” [318].
Promotes access to justice and judicial efficency by extending the application of Ontario’s class action legislation to province’s
without such legislation. Where On has properly assumed jurisdiction, other provinces should recognize the judgement on the
principle of comity.
The right to opt-out would be maintained as an important procedural protection. Proper Notice is of the utmost importance.
Lepine – SCC held notice was confusing and inadequate for QC residents, this offending the fundamental principle of fair
process.
The adequacy of the notice plan lies at the heart of the requirements of order and fairness.
CIVIL JUSTICE AND ITS ALTERNATIVES

The Civil Justice Systen (Review of What course has covered)
o Role of Institutions of Civil Justice
o Principles of Good civil Justice System
o Key Characteristics of judicial institutions
o Accessibility of the civil justice system (including class action)
o How to Sue, who can sue, and where to sue
o Today, is there an alternative to all of the above? – an alternative to the civil justice system?
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Some Thoughts
o “We’re running an antiquated system and people are fleeing it. People don’t trust the system because they find it too
expensive, too slow, and it doesn’t deliver justice” – Alan Lenczner, Toronto Lawyer.
o So where are people fleeing if not the civil justice system? Is the grass greener?

Philosophical Shift:
o Moved from prohibition to toleration to encouragement, why?

Before 1960, state had monopoly over resolution of dispute. Prohibition on arbitration.
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In 1960s, there was enablement for ADR (before, we considered it against public order to have a clause for
ADR in the K.
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1966, QC adds article to the CCP dealing with arbitration
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1980’s the SCC first recognizes arbitration as a recognizable form of dispute resolution.
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Some issues will always come before the courts: family, capacity, status
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Art. 2638 – areas that are not of public order can be arbitrated (however, some things are still considered so
important that they cannot be).
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Art. 940.1 CCP
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Now, there is actual encouragement, as a result of reports (ex: Woolf)
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Unidroit Principle 24 – Court should facilitate & encourage ADR. Solve dispute outside of court.
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Art. 4.3 CCP – Encourage parties to move away from adversarial system

Ont 49.10 – If you don’t accept the other party’s settlement, and the court gives reason to that party,
you are hit with extra-judicial fees.
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Cables cases shows that agreements to agree have too much uncertainty  courts need sufficient obiective criteria to
determine whether or not there is a breach of a clause to arbitrate (agreement to arbitrate must be clear)

Why is ADR a good thing?
o From the system’s point of view
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The system is clogged  ADR siphons cases away
o From parties’ point of view
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Control over the process

Confidential (avoids Globe and Mail, Dagenais, etc)
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Compromise
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Expert opinion may be required to solve the particular dispute…judge shop
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Simpler, which may reduce costs

Can enforce remedies the law wouldn’t give you (STCA v Microsoft)
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Flexible
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Encourages party autonomy
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Parties feel better about the outcome (STCA v Microsoft)
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Faster
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Can be less costly

Forms of ADR
o Arbitration (private justice)

Recently getting much support from SCC – See GreCon decision and Dell. In Dell arbitration trumped out
over Class Action and litigation.

Seidel v Telus, 2011 SCC 15, fundamental shift in arbitration law, court may be moving a a bit back from the
pro-arbitration position. Court held arbitration was not the appropriate course for a B.C. consumer issue.
Where there is no Arbitration Clause, you cannot read it in. “The Court’s position is neither to promote or
detract from arbitration”

Similar to court process

Adjudicative process – decision is made by an adjudicator (usually a lawyer or a retired judge) (like
a court, an independent and impartial 3rd party (or panel) makes the decision)

The decision is also binding. (Non-binding arbitration is an oxymoron, does not exist)

Decision is based on law and legal principles. (or can also be based on softlaw, like UNIDROIT)

Can be given the status of a court decision (homologation) (CCQ 2633 – court stamps it with the
judicial enforcement of any other judgment. Becomes Res Judicata)

Different from court process

Judge shopping – parties have a say in choosing the arbitrator

Confidential - Some arbitral decisions are published, some are not – so we do not have an equal
bank of arbitral decisions.

Faster, b/c you don’t have to wait your turn to get a court date.

Parties have a say in both the procedure and substantive law applied (can include soft law
instruments)

Costs – in court system, the parties do not pay the judge. Arbitrators can be expensive (arbitration is
private justice). So may or may not be cheaper than court system.

Decision cannot be appealed (decision is final) – can review an arbitral award in the courts, but only
based on process or jurisdiction (not on merits of case) (947 CCP – only option is application for
annulment based on error in process or jurisdiction).

Enforcement – basic information contained in Ouimet below. – You must homolgate the decision –
takes a non-judicial decision and gives it the force of judicial decision for enforcement.
o
Mediation

Not adjudicative – mediator does not impose a binding decision/solution. The mediator is there to assist the
parties in coming to their own conclusion.

Solution the parties come to may have nothing to do with the law.

Non-binding arbitration is mediation, and binding mediation is arbitration.

Mediators are not judges and often come from social work, psychology backgrounds (not exclusively law)

Mediation has always existed in an ad hoc way (i.e. on the steps of the Palais).

However, like arbitration, it is private (outside realm of civil justice system), paid for by the parties.

Some jurisdiction offer a certain number hours of free mediation (Quebec – 6h of free mediation for divorcing
couples who have children under the age of majority – keeps divorces out of the court system; court must
provide its approval).

Settlement can be homologated (becomes public), if you need court approval to help execute the solution.
o
Conciliation (Judicial mediation) (JDR) (Conférence de réglement à l’amiable) (aka Judicial Settlement
Conference)

Only difference with mediation is the mediator itself – conciliator is a judge.
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Alternative form of justice offered by judges for free. Paid for by the Public!! Look how far we’ve come since
prohibition of ADR.
Now we are moving from encouragement to “we’ll do it!”.
151.14 + CPP
Statistics show that in a short period of time, process has become very popular. The number of files is
increasing each year. Is successful in about 75% of cases. In 2006-2007, 1155 court days were saved.
Older judges may be apprehensive about this shift as they see it as a change in their roles. Younger judges
are more open to it.
Easy to apply for the process – just fill out a short form!
Judges must be careful not to arm twist, to advise parties privately (caucusing), or to tell parties what
outcome would be in court.
Never runs for more than a day – if it is not settled, it goes to court
What about legal precedent? If all cases are settled, how is the law to advance? The issues solved by
mediation are those that would not be taught in law school! Merely talking away some garbage in the system.
3 questions
1) Should the state be offering judicial mediation for free (at its costs)?
Conciliation still requires judges, so it is just taking him out of the courtroom and into the conference
room. This is the state offering an alternative to its existing dispute resolution mechanism of the
courts.
2)
Should judges be doing this?
All jurisdiction in Canada offer Judicial Mediation.
Some systems in the world offer free mediation to cases that are on the rolls, but mediators do them.
Louise Otis (QC CA) is poster child for judicial mediation – judges are suited for this rule because of
the perception of the parties (gravitas). Parties will listen to them and will be well behaved. They also
have specific skills as they know the law, and will thus be able to lead the settlement.
Ethical dilemmas – what does a judge answer when asked what will happen if this goes to court? A
judge is suppose to answer they do not know what a court will say.
The judge you see in settlement conference will never hear your case again will not hear the case in
court.
Judge can “caucus” and take a party aside and advise one party alone.
3)
Which judges should be doing – all of them? Trial level? Appellate level?
Most jurisdiction use Superior Court level judges.
QC CA does a lot of judicial mediation (re: Louise Otis). However, a lot of people say that this is not
the role of the CA. The CA has a law making function – not about the parties anymore.
CCQ 2631, 2633, 2638-2643 – Arbitration Agreegments
CCP 151.14 - 151.23, 508.1, 940, 940.1, 941-951.2 - Settlement conference, Judge presiding
Rules of Civil Procedure Ontario 24.1, 77
ALI/Unidroit: Principle 24 - Settlement
24. Settlement
24.1 The court, while respecting the parties’ opportunity to pursue litigation, should encourage settlement between the parties when
reasonably possible.
24.2 The court should facilitate parties’ participation in alternative-dispute-resolution processes at any stage of the proceeding.
24.3 The parties, both before and after commencement of litigation, should cooperate in reasonable settlement endeavors. The
court may adjust its award of costs to reflect unreasonable failure to cooperate or bad-faith participation in settlement endeavors.
CML - Cable & Wireless plc v. IBM UK, [2002] UK, p. 322, Court repects K’ual agreement to pursue ADR prior to trial.
Facts
Issue
Holding
Reasons
Colman
J.
IBM UK party to a dispute applied for orders that claim should be stayed pending the dispute being referred to
Alternative Dispute Resolution (ADR) under a clause to this end in their contract
Should the claim be stayed pending ADR?
Yes

C&W submits that the mediation clause is unenforceable because it lacks certainty, and that reference to ADR was
never intended to have binding effect on the facility to commence proceedings

Parties intended litigation to be a last resort – but they also provided means to initiate proceedings before the
“escalation process” was complete, so as to be able to protect business interests

Parties have not just agreed to attempt to negotiate a settlement; they have identified a particular
procedure, and the mediation clause envisages a certain minimum participation

Report to the specific type of ADR and participation in its recommended procedure are sufficiently certain for a
court to judge compliance
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
Reference to ADR is analogous to an agreement to arbitrate  free-standing agreement ancillary to main contract,
capable of being enforced by stay of proceedings or by injunction absent any pending proceedings

Here, C&W has declined to participate in any ADR; must show strong cause before a court would be justified in
declining to enforce the agreement; strong case management grounds for referring the parties to ADR

There may be cases where there has been so much delay that mediation clause enforcement would be unfair – not
here
Ratio

Where parties agree to a contract containing a mediation clause of sufficient certainty (not just an
“agreement to [try to] agree”), they will be held to it

Reference to mediation is analogous to an agreement to arbitrate  free-standing agreement ancillary to
main contract, capable of being enforced by stay of proceedings or by injunction absent any pending
proceedings

Agreement to agree has too much inherent uncertainty  court needs sufficient objective criteria to determine whether or
not there is a breach.

There are 2 clauses
o 41.1 – Agreement to agreement (agree to settle)  court says this is too uncertain
o 41.2 – Court does not have a problem with this clause (although it seems just as uncertain – does not specify what
kind of ADR, what type of rules, etc.). However, to strike this clause down would “fly in the face of public policy”
o Shows that in a short period of time, both legislature and courts have moved from prohibition, to toleration, to
encouragement
CMN/CVL – Ouimet & Cote, Enforcement of Arbitral Awards in Canada. (2008) p. 328 – ADR is parallel to courts, but
may require courts help to enforce

Arbitration has many advantages, but when it comes time to enforce a decision, the assistance of the judicial
authority of the state may be required.

Unlike extra-judicial decisions, the enforcement of arbitral awards from foreign jurisdiction benefit from deferential attitude of
international tools (i.e. Model Law) which encourages enforcement by the domestic judicial authority.

SCC has rendered 4 major arbitration-friendly decisions: GreCon, Dell, Sport Maska, and Desputeaux.

Arbitration is now seen as a dispute resolution mechanism parallel and not inferior to courts.

Courts should enforce arbitration decision, and should only interfere on the basis of Public Policy.
o
Enforcement varies by province.

Homolgation is the act of judicial confirmation of an arbitration award. It can be sought at any time (usually when it appears like
the other side is not going to respect the decision of the arbitrator) and the grounds for resisting homolgation are limited to CCP
arts. 946.4 and 946.5.
o
Court seized of a motion for homolgation is prevented from revisiting the merits of the case.
o
Art. 947: “the only possible recourse against an arbitration award is an application for annulment” Must be presented
within 3 months of the arbitration award.
o
Art. 948 – applies to arbitration awards granted outside Quebec
o
Art. 949: “foreign arbitration awards shall be recognized and executed if the matter in dispute is one that may be
settled by arbitration in Quebec and if its recognition and execution is not contrary to public order.
o
Art 950 – grounds on which recognition and execution of a foreign arbitral award may be resisted in Quebec. Burden is
upon the party resisting the enforcement of arbitration award.
CVL – STCA v Microsoft, p. 333; Mediation, can fashion creative solutions beyond the power of a court.
Microsoft steals zip file technology software.
Solution 1 – Microsoft pays $43 Million to avoid litigation and settle dispute.
Solution 2 – Microsoft pays $39.9ish million to buy 15% shares of company and become co-developers of zip technology.
Comments: demonstrates that solution 2 offers dispute resolution that courts could not order. Court can only offer damages.
Empowers parties and makes them feel good about the outcome. They feel like winners b/c they helped craft the solution together.
CMN/CVL – Otis & Reiter, Mediation by Judges (2006) p. 335 – Summary of changes brought by Judicial Mediation

ADR is a fundamental change to our legal system – available in 8 provinces and 3 territories

QC integrates judicial mediation at every level in every area of law, including: family, commercial, civil, admin, and criminal

ADR is participant centered; QC has 75 to 80% settled at ADR stage

Raises questions concerning the relationship b/w state sanctioned and private forms of normative ordering [337].

Judicial mediation advantages – faster & cheaper - p. 340

Why a judge – p.341 – independence, impartiality, knowledge, and all the respect people have for judges

Process: conflict, consent to mediation, opening of mediation, communication and negotiation, Decision (written by lawyers and
agreed to by parties, and Closure.

Ethical issues: confidentiality, party autonomy, fair treatment, lawyers ethics governed by provincial code,
PULLING IT ALL TOGETHER
Exam: 3 hours, with reading time, past exam will be posted. 3 major questions with sub-parts, trying to cover as much of course as
possible. Be very specific, and demonstrate a taking of macro ideas and linking micro procedural level. Wants citing of cases,
articles, and rules.
PULLING IT ALL TOGETHER
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Understand the role of institutions of civil justice
Principles of a good civil justice system
Key characteristics of judicial institutions
Who can sue and where – geographic and subject-matter jurisdiction, standing
Making civil justice more accessible (including via class action)
Who are the parties
What is the pre-trial process
LINKING MACRO AND MICRO
 Legitimacy of judicial institutions (open court principle) linked to discovery
 Access to justice linked to interim costs, class actions, discovery
o Fact pleading vs. notice pleading
 Effectiveness and efficiency of civil justice system linked to procedural rules (time delays, 180 days, simplified procedure)
 Concerns of ultimate fairness (macro) linked to service and form of pleadings (Micro)
Q&A
What comes first, 1003 or 1005  meaning, once 1003 fulfilled, doesn’t judge have to authorize it even if he would like to redefine
the group?
Judge can refuse authorization  as claimant, you can appeal
OR authorize BUT not based on definition put forward by applicants
o Done at time of authorization
Choice of Forum
Real and substantial  forum must have legitimate link
THAN you can argue forum non conveniens to oust jurisdiction
o (so first, you want to try and argue no real and substantial link, than next forum non conveniens)
Subject Matter jurisdiction
In QC, declinatory exception
o On the basis of no jurisdiction
o Not 2.13 (case management courts)
o Would go to 2.08
180 day rules
QC: 180 days for all cases (except family)
ONT: different tracks  a variety of delays
Opting out of Class Actions – question from last year’s exam
Can opt out
But how can you stop the class action?
o Group should meet with defendant school and say let’s work together to create arguments so that it is not
authorization
A member of the class HAS no standing
Which arguments under 1003 would apply here?
o Plaintiff not representative  not representing views of majority
Can petition be used? Valid evidence somewhere?
One of the big changes – no longer affidavit, no cross examining at authorization
o Bottom of art. 1002 – would judge have discretion to allow petition in?
In Marcotte,
o All 1003 applied
o But judges didn’t think that class action appropriate for class action

Majority: discretion within each criteria
So judge here could say not appropriate given that class here doesn’t want it:
o Won’t change behaviour
Article 4.2  could apply to not grant class action (following Marcotte)
SCC – decisions from cml – are they binding in QC?
Lac d’amiante:
o C of A says QC has adversary system, same procedure, so confidentiality applies

Lebel: says b/c from a civilian point of view, that is the right answer
Hollick: not applicable to QC
o ONT act different from CCP
Juman: not based on particular statutory provision – so maybe more applicable than something like Hollick
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Greg Koenderman – JICP – Winter 2011
Stay versus dismissal:
Dismissal: case goes off the roll
Stay: holding until something is decided, in abeyance
o Typically ordered in family law
o Or forum non conveniens
Say prescription hasn’t run, you miss your 180 days, what happens?
In Ontario:
Status notice – have amount of time you can go back to court to get case resurrected
In QC:
110.1: preemptory delay
Effect is that the case is dead (unless you got extension)
Court visit
o A lot of parties asking for delay
o Granted when both parties agreed – even without compelling reasons

First request, short delays – judges not tough
o So you don’t want to miss 180 delay b/c then you can go and ask for delay
Mandatory mediation versus pre-trial conference
MM: Takes place after the defence has been filed
o Not before a judge, before a mediator
o MM occurs after the defense in the hopes that it will settle the case, and not be set down for trial
PTC
o Mandatory in all cases
o Done by a judge/master
o Done after the case is placed on trial list
o Second kick at settling – occurs after mandatory mediation was not successful
Most important difference: TIMING
Setting down for trial is at the end!
o That is why it is so hard to comply with 180 day rule in QC
Discovery
In QC, all you have to disclose are documentary evidence you will use in your case
o Discovery always oral
In ONT: any documents relating must be disclosed
o Much broader o Either oral or written not both

Simplified procedure: only oral
o Affidavit given with list of all relevant documents
o You can either choose 7 hours of oral discovery or you can opt out and say: “I will submit 20 questions that I want
you to answer instead” – that is written discovery
How do you discover documents orally?
o Show document and say could you pls explain this email etc?
Intervenors:
If intervenors become parties: they can appeal
Amicus curiae: can appeal only if they get public issue standing
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