A1. The Court System
Ontario Courts
Court
Court of Appeal for Ontario
Superior Court
of Justice
Court of
Ontario
Ontario Court
of Justice
Jurisdiction
 Appeals from the Ontario Court of Justice and the Superior Court of Justice
 Divisional Court—Judicial reviews of government action, statutory appeals, and appeals
from certain decisions of the Superior Court of Justice
 Criminal and youth criminal justice trials with or without jury after preliminary hearing
 Family law matters including divorce and division of property but not child protection; in
those areas of the province in which the Family Court of the Superior Court of Justice has
been established, the Family Court has jurisdiction over all family law matters, including
child protection
 All other civil matters
 Appeals from certain decisions of the Ontario Court of Justice
 Small Claims Court—Civil matters under $10,000
▪
▪
▪
▪
Provincial offence trials
Criminal and youth criminal justice bails, trials, and preliminary hearings
Family law matters, including child protection but excluding divorce and the
division of property, in those areas of the province where the Family Court of the
Superior Court of Justice has not been established
Appeals in provincial offence matters where the trial was conducted by a justice of
the peace
Legislation Conferring Jurisdiction on the Federal Court of Appeal and the Federal Court
Long list of statues including: The Copyright Act, The Criminal Code, The Divorce Act, The Employment Equity Act, Farm Credit
Canada Act, First Nations Land, The Motor Vehicle Safety Act, The Pest Control Products Act, etc.
Handout with the BNA Act 1867 provisions
Overview of the courts with jurisdiction in Quebec
The jurisdiction of each court is determined by law on the basis of a number of factors, including the nature of the case, geographical
location and the amount in dispute.
Municipal Courts
 86 municipal courts established by the Act respecting municipal courts.
 Presided over by a municipal judge.
 Limited jurisdiction in civil matters, mostly with municipal tax claims.
 Hear cases involving offences under municipal by-laws and Québec statutes, and
 Hear offences under Part XXVII of the Criminal Code, criminal offences punishable on summary conviction.
The Court of Québec
 Court of first instance that has jurisdiction in civil, criminal/penal matters and matters relating to young persons
 Jurisdiction over administrative matters and appeals where provided for by law.
 A maximum of 270 judges, appointed by the Government of Québec for life.
 Directed by a chief judge assisted by a senior associate chief judge and four associate chief judges.
 Three divisions: the Civil Division (includes Small Claims Division), the Criminal and Penal Division, and the Youth Division.
The Civil Division
 Jurisdiction in all judicial districts in Quebec.
 Cases where dispute is less than $70,000,
 Exception of applications for child or spousal support and matters within the jurisdiction of the Federal Court
 Hears petitions for psychiatric examinations and proceedings concerning voluntary deposits and municipal and school matters
 Exclusive jurisdiction to hear appeals from certain administrative tribunals
The Small Claims Division
 All claims up to $7,000 made by natural persons, or by legal persons, partnerships or associations that have employed no more
than five people in the twelve months prior to the claim.
 Procedure in the Small Claims Division is simple and informal.
 The claimant cannot be represented by a lawyer, unless allowed because of the complexity of the case.
 The proceedings are conducted by the judge, who examines the witnesses and hears the parties.
 Judgments in the Small Claims Division are final and cannot be appealed.
The Criminal and Penal Division
 Jurisdiction throughout Québec.
 Unless specified by law, all proceedings under the Criminal Code, the Code of Penal Procedure and all other regulatory offence
statutes are heard by this Division
 Tries offences punishable on summary conviction under Part XVII of the Criminal Code
 Hears all criminal proceedings with the exception of those that take place before a court composed of a judge and jury or that are
within the exclusive jurisdiction of the Superior Court.
 In penal matters, the Division hears proceedings for offences under provincial and federal legislation.
The Youth Division
 Hears all cases involving minors and adoption cases.
 In criminal matters, the Youth Division applies the Youth Criminal Justice Act.
 Hears first instance cases of individuals aged 12-18 accused of offences under the Criminal Code and other federal statutes.
 In penal matters, applies the Code of Penal Procedure and hears cases involving individuals between the ages of 14 and 18 who
are accused of offences under Québec statutes and municipal by-laws.
The Superior Court
 Has jurisdiction throughout Québec and sits in all the judicial districts.
 144 judges, including a chief judge, a senior associate chief judge and an associate chief judge
 All appointed by the federal government.
 In civil matters, hears cases in first instance where the amount at issue is at least $70,000.
 Exclusive jurisdiction in family matters where the proceedings are heard in private with the parties’ names remaining
confidential.
 Hears applications regarding class actions and probate (homologation) of wills.
 Issues injunctions
 Decisions by courts or bodies in Québec are subject to the superintending and reforming power of the Superior
 In criminal matters, exclusive jurisdiction in first instance to try criminal cases, heard before judge and jury
 Jurisdiction in cases for which the accused elects trial by jury.
 Jurisdiction in matters of extraordinary recourse (
The Court of Appeal
 General appeal court for Québec and as such, is the highest court in Québec.
 20 judges appointed by the Government of Canada.
 It sits in the cities of Québec and Montréal.
 In civil matters, hears appeals from the Superior Court and the Court of Québec where the dispute is >$50,000
 Other final judgments of the Superior Court and the Court of Québec may be appealed if leave to do so is granted
 In criminal matters, the Court of Appeal hears appeals from verdicts of guilt or acquittal and sentencing appeals.
Handout of the Ontario Courts of Justice Act , Federal Courts Act
Re Residential Tenancies Act 1979 (Ontario), SCC
Facts:
 Legislature enacted act containing legislative code to govern landlords and tenants and create the Residential Tenancy
Commission to oversee and enforce rights and obligations of code.
 This includes orders evicting tenants from residential premises and to require compliance with obligations. The
Commission was essentially an administrative tribunal
 The whole of s.96’s court’s jurisdiction in a certain area was transferred to provincially appointed officials.
 Court of Appeal concluded it was not within legislative authority to take away power from Superior Courts and allow
Commission authority to give eviction orders
Issue: Can s.96 powers be given to an administrative tribunal? On what grounds?
Reasoning:
3-step test was created to determine if a province constitutionally gave an administrative tribunal s.96 powers.
1. Historical considerations: Is power identical or analogous to power exclusively exercised by an s.96 court at
Confederation? Emphasize the type of dispute rather than the type of remedy sought. If yes…
2. Is the function still ‘judicial’: Consideration of the function within its institutional setting to determine whether the
function is different than a judicial power? Subject matter rather than the apparatus of adjudication is determinative. Is the
power or jurisdiction exercised in a judicial manner (private dispute between parties; adjudication by application of a body
of rules; adjudicated in a fair & impartial manner)? If yes…
3. Function of the tribunal as a whole: Are the judicial powers merely subsidiary to general admin functions or are the
powers necessarily incidental to achieve a broader policy goal? Is the adjudicative function the sole or central function of
the tribunal? If yes…tribunal is operating ‘like an s. 96 court’ and is unconstitutional!
 In terms of step 2, the hallmark of a judicial power is a lis between parties in which a tribunal is called upon to apply a
recognized body of rules in a manner consistent with fairness and impartiality.
 In terms of step 3, a winning argument would be that the tribunal is an administrative body charged with supervision and
regulation of a certain jurisdiction and that adjudication is merely subsidiary to the greater policy goal.
 Applying facts to the test:
 1) Superior courts were the only tribunals which could make eviction orders. Part 1 of test is satisfied.
 2) Commission has authority to hear and determine disputes in accordance with rules of law, and by the authority of the law
 3) Central function of the Commission is that of resolving disputes. There was no broad policy or legislative scheme.
 The whole of a s.96 court’s jurisdiction in a certain area has been transferred to provincially appointed officials
Held: Appeal dismissed. Powers of s.96 jurisdiction cannot be assigned away.
Rule: Provincial legislatures cannot delegate judicial powers protected under S.96 to provincially-appointed tribunals.
Macmillan Bloedel Ltd. v. Simpson 1995, SCC (On Appeal from the Court of Appeal from British Columbia)
Facts:
Appellant, young person, charged with contempt of court. At trial, he asks to be tried in youth court pursuant to s. 47(2) of the
Young Offenders Acts and said that Superior courts have no jurisdiction to try him.
S.47 (2) states that youth court has exclusive jurisdiction over ex facie contempt of court committed by a young
Court of Appeal said that s.47(2) was unconstitutional, contempt power is within core jurisdiction of superior courts: beyond
parliament’s authority to remove core jurisdiction from superior court.
Issue: Can parliament give youth courts the power to try youths for contempt, to the exclusion of Superior Courts? Can a legislator
take away jurisdiction from a superior court?
Reasoning, Majority (Lamer CJ):
Two stage analysis is required:
Use Residential Tenancies Act test to determine whether grant of jurisdiction is permissible. If yes, the court must decide
whether court’s jurisdiction can be ousted. This second half arises only when the core or inherent jurisdiction of superior courts is
affected; the jurisdiction that is integral to Superior court’s operations. Core jurisdiction is beyond reach of legislators unless by
constitutional amendment
Superior courts are only court of general jurisdiction and become the foundation of the rule of law itself. The rule of law requires a
judicial system that ensures orders & process are both enforced and respected; these are functions of the Core which are essential to
the administration of justice and the maintenance of the rule of law.
They must retain supervisory power to ensure that the lower court’s disposition of the matter is correct which means you cannot
grant exclusive jurisdiction.
Applying facts: Contempt of court does not occur without court…part of core jurisdiction.
Youth Courts allow for transfer of s.96 power as it has institutional functions to accomplish broader policy goal. However, the
jurisdiction on ‘contempt of court’ cannot be granted to youth court at exclusion of provincial superior court because ‘contempt of
court’ is part of the core jurisdiction!
This case is not about granting Youth Court power, but taking away Superior Court power!
Dissent (MchLachlin)
Residential Tenancies Act test is sufficient. A new test would impede ability of legislator to create effective tribunals to ensure
compliance with regulatory schemes. To be effective, tribunals must have exclusive power to decide the matters at issue.
The Superior courts inherent power exists to complement statutory assignment, not override or replace them. Courts must abide by
legislators which follows logically that legislators can limit and define superior courts’ inherent power.
Transfer of s.96 jurisdiction to inferior tribunals does not impede Superior Courts’ right to review decisions and ensure that the law
is followed and fair process maintained.
Held: It was not within the jurisdiction of Parliament to grant exclusive jurisdiction to youth courts.
Rule: Legislators cannot grant exclusive jurisdiction on a core jurisdiction of the Superior Courts. Powers that are hallmarks of
Superior Courts cannot be removed from those courts
Crévier v. Québec (Attorney General) SCC, 1981 (On appeal from the Court of Appeal for Quebec)
Facts:
 Discipline Committee has authority by statute to impose sanctions on professional corporation if found guilty of violating
Professional Code. Two members were charged with offenses, and they appealed to the Professions Tribunal which found that
the Discipline Committee had gone beyond their jurisdiction.
 The Professions Tribunal’s only function is that of a general tribunal of appeal. It is essentially sitting on top of various
schemes with an authority detached from them.
 Superior Courts held that powers, review of law or fact and jurisdiction, given to the Professions Tribunal violated s.96. This
was because the power to determine if a body exceeded their jurisdiction is a power belonging solely to s.96 courts.
Issue: Who has the power to review decisions made by a body that has been delegated power by a legislature?
Reasoning:
 Professions tribunal cannot, in its final appellate form, be seen as part of a regulatory scheme for the governance of various
professions.

Reaffirms Residential Tenancies: It is possible for administrative tribunals to exercise powers and jurisdiction which once
were exercised by s. 96 courts; it all depends on the context of the exercise of power! The scheme is only invalid when the
adjudicative function is a sole or central function of the tribunal
 Privative clause: A legislator cannot insulate a statutory tribunal from review of its adjudicative functions IF THE
INSULATION ENCOMPASSES JURISDICTION
S. 96 does not allow a provincial statutory tribunal to determine the limits of its own jurisdiction without appeal or review.
In the Farrah case, the court finds that preclusion clauses against judicial review on QUESTIONS OF LAW are allowed!
However, the Farrah case decided that to give a provincially constituted statutory tribunal a jurisdiction in appeal on questions of
law without limitation, AND to reinforce the appellate authority by excluding recourse to Superior Courts was to create an s.96
court.
Held: Appeal allowed. Privative clauses cannot bar Superior Courts ability to review question of jurisdiction decisions from admin.
Rule: Provincially-constituted statutory tribunals cannot be immunized from review of decisions on questions of jurisdiction! There
is a constitutional prohibition on privative clauses that purport to exclude judicial review for jurisdictional error!
Séminaire v Cité de Chicoutimi
Facts and Issue:
 The crucial point is whether the impugned provisions are ultra vires the provincial legislature because they confer on a
provincial court jurisdiction to hear and decide on a matter which is in the exclusive jurisdiction of s.96
 The matter in question is a petition to quash a municipal by-law on grounds of illegality and not merely on grounds of
procedural irregularities
Reasoning:
The BNA confers exclusive jurisdiction on the provinces over the Administration of Justice in the province, and, more specifically,
the power to appoint judges to these provincial courts.
This clashes with the federal government’s exclusive power of appointing judges to s. 96 courts
Therefore, s.96 denies the provinces the power of bestowing upon provincial courts the jurisdiction found in s.96
Historical approach, s. 96 courts exercised this jurisdiction in 1867
Recognizes that s. 96 courts are the court of original general jurisdiction with special superintending and reforming power
Need to show that the jurisdiction was EXCLUSIVE though; brief discussion of Circuit court concludes that there was no indication
that the jurisdiction had been given to another court as well
The most that could be said is that the Circuit Court could decide on this matter, but the Circuit Court was essentially a branch of a
s.96 court; this matter stayed in the realms of s. 96
s. 96 court does have an exclusive jurisdiction in this case!
Held: Provisions are ultra vires as they confer s. 96 powers to an provincial court
Rule: First step of the Residential Tenancies 3-step test; historical approach to see if you conferred exclusive s 96 powers at the time
of Confederation!
AG of Canada v Law Society of BC, 1982, SCC
Facts and Issue:
 The Federal Courts Act has a provision stating:
17 (1): The Trial Division has exclusive original jurisdiction in all cases where relief is claimed against the Crown
 Law Society demands declaratory relief against the Crown through the BC Superior Court
 Attorney-General challenges the s.96 court’s jurisdiction on the ground that the Federal Court has the exclusive jurisdiction to
do so.
Reasoning:
 Two types of declaratory relief; ones that are independent v ones that are incidental to the court proceedings
 “The provincial superior courts have always occupied a position of prime importance in the constitutional pattern of this
country. They are the descendants of the Royal Courts of Justice as courts of general jurisdiction. They cross the dividing line in
the federal-provincial scheme of division of jurisdiction.”
 “Basic principle is that the s. 96 courts have jurisdiction over all matters federal and provincial.
 The federal Parliament is empowered to derogate from this principle by establishing additional courts only for the better
administration of the laws of Canada (s. 101)
 The Federal Court was established via s.101’s authority.
 The expression “laws of Canada” has been settled as meaning the laws enacted by the Parliament of Canada
 This does not mean that a s.101 court can take away the s. 96’s jurisdiction to rule on constitutional matters
 “It would leave s.96 courts with the task to execute federal law, whether or not they were valid
 S.101 cannot be read as the constitutional justification for the exclusion from the s.96 courts of the jurisdiction to pronounce
upon the constitution
Held: Federal Courts Act legislation is read down to exclude declaratory reliefs that are incidental to court proceedings. This means
that the BC Superior Court had jurisdiction.
Rule: Can’t create exclusive jurisdictions that takes away s.96’s original general jurisdiction. S.101 cannot grant this power
This paved the way to changing the Federal Courts Act to: 17. (1) Except as otherwise provided in this Act or any other Act of
Parliament, the Federal Court has concurrent original jurisdiction in all cases in which relief is claimed against the Crown.
Class notes
 CCP 953 on small claims is of public order
 959: No lawyers in Quebec small claims, it is optional in Ontario. You can give a mandate, but it must be gratuitous
 Quebec limit is $7,000; Ontario is $25,000
 977: judge examines the parties! Not really an adversarial system. Judge has to make sure procedure is followed as it will give
‘rise’ to substantive justice
 984: privative clause- the judgement is final and without appeal. Shielded from s.96 EXCEPT for when there is want or excess of
jurisdiction
 Federal Courts Act: s.17- concurrent jurisdiction; s.18- exclusive jurisdiction whenever reviewing a federal tribunal; s.20exclusive jurisdiction over patents; s.21- citizenship appeals;
 There are 30 days to appeal a s.96 decision; Filing an appeal suspends execution
 Court of appeal has 3 functions: a) Traditional appellate court, b) references made by the Lieutenant-General; created by the
Court of Appeal Reference Act, c) investigation into the conduct of provincially-nominated judges; established by Art 95 of the
Quebec Courts of Justice Act
A2. Appellate courts and the SCC
Farmer c New Hampshire Insurance, 1987, CA
 Fire burnt some stuff down, 15 insurance companies sues poor Mr. Farmer
 A judgment is rendered, and 5 of the companies’ were owed compensation valued at under $6000
 $6000, which includes interest, is the value needed for an appeal to be instituted (it’s now $50,000)
 Court confirms via CCP 27 that each individual claim has to be above $6000; the appellants cannot amalgamate their claims!
 Also violates CCP 494+523 combo for prescription over appeals (30 days or 6 months in exceptional cases)
Joyal, Gustave c Construction Raymond Villeneuve, 1987, CA
 When instituting an appeal, you must indicate the matter of which you are appealing
 The matter must have been in heard in the court of first instance
 In this case, the appellant failed to show the matter which needed appealing
 Furthermore, the cross-appeal is rejected because it brought up a new matter which was not discussed in the superior court
 These are all found in the first two paragraphs of CCP 494, 496, 509
Handouts for Constitution Act 1867 and the Supreme Court of Canada Act
Coca-Cola v Mathews, 1944, SCC
 The SCC will not decide abstract propositions of law, even if to determine the liability as to costs
 This may not be affected by the fact that the previous court has granted leave to appeal to the SCC
 Courts may impose terms as a condition of his being permitted to appeal to this court
 In the case at hand, after the ONCA decision, Coca-Cola paid the damages to Mathews; “no further lis exists between the parties
and that they leave nothing to fight over”; leave to appeal denied!
 The appeal was for an issue not presented in the previous judicial proceedings
 The appeal was to have the SCC merely express its view upon a legal question, i.e. a reference
 The court does not grant this except under exception cases as provided by legislation
 Examples of where there is no conflicts to decide: parties abiding by the executory orders in a judgment, ultra vires legislation
being struck
MacDonald v City of Montreal, 1986, SCC
 Quebec Court of Appeal denies leave to appeal
 Plaintiff applies for appeal to SCC on a constitutional issue of unilinguism in courts, contentious much!
 Issue: Does SCC have jurisdiction to hear a case where leave to appeal to a provincial court of appeal was denied? Yes, s. 41
(40.1)!
 SCC has jurisdiction to hear this case; it is a jurisdiction which should be exercised most sparingly, in very rare cases, where there
is a risk that a question of major constitutional importance might otherwise be put beyond the possibility of review by the SCC
 While the SCC should in general maintain an attitude of deference to the exercise of judicial discretion by intermediate appellate,
it should not hesitate to use its role as the ultimate appellate tribunal to take on cases with legal principles of grave national and
constitution importance!
Westar Mining, 1993, SCC
 Respondents move to quash application for leave to appeal brought by applicants; motion dismissed!
 In the absence of any restriction placed by legislation upon the jurisdiction of this Court to grant leave to appeal, the reasoning in
MacDonald applies such that this Court has a discretion to grant leave to appeal from a decision of a provincial appellate court
refusing leave to appeal to that court
Reference re Same-Sex Marriage
 The preliminary analysis of using the discretion to not answer reference questions cannot be predicated on a predicted outcome
 The reference jurisdiction vested in the SCC by s. 53 Supreme Court Act is broad and has been interpreted liberally; the Court has
rarely exercised its discretion not to answer a reference question reflecting its perception of the seriousness of its advisory role



The Court is allowed to reject either because the question lacks sufficient legal content or because attempting to answer it would
for other reasons be problematic, which is the case here
The ‘for other reason’s falls into two broad categories: 1) the question is too ambiguous or imprecise to allow an accurate answer;
2) where the parties have not provided sufficient info to provide a complete answer; this list is NOT EXHAUSTIVE
The reference is rejected in this case because:
o the government has already stated its intention to follow lower court decisions on same-sex marriages regardless of the
answer of the court; the reference serves no legal purpose
o the parties in previous legislation have relied upon the finality of their judgments and have acquired rights which in our
view are entitled to protection
o An answer would not only fail to ensure uniformity of the law, but might undermine it; if NO, this would not overturn
lower courts decisions but would add confusion as to whether they were wrong
Philip Slayton, “Justice is in the details”
 S. 40 gives large discretion to the court for allowing appeals; an appeal lies “the court is of the opinion that any question involved
therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed fact and law involved in
that question, one that ought to be decided by the Supreme Court.”
 There are no reasons given when an appeal to the SCC is rejected; lack of transparency
 Two problems: 1) In an individual application, justice is not seen to be done; we don’t know what happened and can’t evaluate it
 2) No guidance is given to the lawyers about what kind of applications are likely to be successful; about what the court considers
to be of legal or public importance; lawyers have to guess!
SCC Stats
2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
Applications for Leave
Submitted to the Court
640 668 498 609 559 575 477 629 509 518 465
Percentage granted
13
12
11
12
15
11
12
11
10
11* 11*
78
96
72
82
83
93
80
53
82
72
65
Total number
72
91
88
81
78
89
79
58
74
70
69
Percentage of unanimous judgments
72
82
69
76
73
73
80
62
76
63
75
Between filing of application for leave and decision on application
for leave
5.4
4.3
5.7
3.9
3.7
3.7
3.4
3.5
3.2
3.2
3.4
Between date leave granted (or date notice of appeal as of right
filed) and hearing
12.5 11.4 12.2 10.5 9.4
9.1
7.7
9.0
8.9
7.6
7.7
Between hearing and judgment
5.8
5.2
5.9
6.6
4.8
7.4
7.7
Appeals Heard
Total number
Appeal Judgments
Average Time Lapses (in months)
5.6
5.6
5.1
4.0
Eugene Meehan, SCC 2007 Statistics
Interesting to see statistics as to which type of cases the court is hearing; author suggests tailoring your case into an area of law that
the SCC does not deal with a whole lot as it will then be easier to say that this area of the law needs unifying!
There is continuing importance of the “palpable and overriding error” principle; courts of appeal are not to overturn trial judges unless
the trial judge has committed a palpable and overriding error
Eugene Meehan, The two articles on getting leave to appeal to the SCC
Be concise, coherent and structured in your appeals; make sure you spell out what you are contesting from the previous court decision
Some practical considerations for when deciding to appeal to the SCC:
If you've lost at the Court of Appeal in a particular province/territory, is there a risk that appealing to the Supreme Court of Canada
could mean losing there too, and thereby establishing a negative country-wide precedent?
is there a solid and substantive basis for the appeal with issues really suited for a determination by Canada's highest court?
Do chances of success warrant the cost and trouble?
Even if there is an error of law below, is it so substantial as to have affected decision?
Are there Court of Appeal decisions in opposition to each other that require settling by the S.C.C.?
Stress public importance!
A3. The Judge
Handouts on Constitutional Act, 1867 and Canadian Charter of Human Rights
Valente v. The Queen, [1985] 2 S.C.R. 673
Facts
 Appellant claiming provincial court (criminal division) was not an independent court within the meaning of s.11 of Canada
Charter of Rights and Freedoms
 Because of nature of:
1) Tenure of provincial court judges (especially those holding office under a post-retirement reappointment)
2) Manner in which their salaries and pensions are fixed.
3) Extent to which there were dependent for certain advantages and benefits.
 Specific facts on this particular court for a fact-pattern case comparison is on page 663-664
Issue:
 Is the provincial court an independent tribunal under Sec. 11 (d) of the Charter?
 What is the test for determining independence?
Reasoning:
 independence and impartiality are separate and distinct values or requirements
 Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case
 Independence involves both individual and institutional relationships: Individual independence as reflected in such matters as
security of tenure and the institutional independence as reflected in its institutional or administrative relationships to the
executive and legislative branches of government!
 Test for both independence and impartiality should be determined as to whether the tribunal may be reasonably
perceived as independent. Perception must be rooted in statute/law and not how it has acted in the past!
 Essential conditions of judicial independence must bear some reasonable relationship to the variety of legislative and
constitutional provisions in Canada;
 sec. 11 (d) refers to the essential characteristics, not ideal or the most stringent standards. Three conditions: security of tenure,
financial security, institutional independence
 Sec 11 (d) does not mean that provincial courts need the same constitutional guarantees as s.96 courts.
 S11(d) implies a standard that reflects what is common to the various approaches to judicial independence
 Security of tenure: A judge can only be removed for cause, subject to independent review by a process at which the judge is
allowed to be heard. Tenure must have a fixed term and is secure against interference by the Executive in an arbitrary manner
 Financial security: The right to salary and pension should be established by law and not subject to arbitrary interference by the
Executive
 Institutional independence: Independence is needed with respect to matters of administration bearing directly on the exercise
of judicial function. Judicial control over assignment of judges, sitting of the courts and court lists are the minimal standard.
 Unreasonable to apprehend that a provincial court judge would be influenced by the possible desire of perks to act less
independently in their adjudication, ex: vacation dates, extra-judicial employment.
 In this case, the only major issue was that judges, upon the age of retirement, can hold office at the pleasure of the Lieutenant
Governor. It was argued that this did not matter because the LG never used his power to kick out a judge. BUT tradition is not a
sufficient safeguard of judicial independence! Therefore, because a judge COULD be kicked out arbitrarily, this would violate
the minimal standard of security of tenure
 For financial security, the complaint was that salary was not fixed by the legislature as the LG determines the salary.
However, the min standard is met as the salary is established by law and no interference by Executive
Held: The provincial court meets the min standards of independence set out in s. 11 (d)
Rule: S. 11 (d) of the Charter sets out min standards for security of tenure, financial security, institutional independence. These
min standards are not the same as the s. 96 standards viewed to be the most demanding!
Therrien (Re) (2001) – CVL (SCC from QCCA)
Facts: In 1970, T was sentenced to 1 year imprisonment for unlawfully giving assistance to 4 members of the FLQ. He served his
sentence, and then became a lawyer. In 1987, T applied for and was granted a pardon. He applied several times to be a judge but was
rejected due ; ACJ of Court of QC discovered T’s shady past, and advised the Minister of Justice. Minister of Justice lodged a
complaint with the Conseil de la Magistrature; they investigated, and recommended to the MoJ that removal procedures be initiated
by making the request to the QC Court of Appeal, who also recommended removal.
Issues and Holdings:
1. Does the Supreme Court have jurisdiction to hear an appeal from the QCCA on their report? Yes.
2. Did the Conseil de la Magistrature have jurisdiction over the issue, as it happened before T was a judge? Yes.
3. Is Quebec’s procedure for removing a judge unconstitutional, because the removal is at the discretion of the Minister of Justice?
No (held that it’s not entirely discretionary).
4. To what standard of behaviour do we hold our judges? Extremely high.
Reasoning:
s. 95 Quebec Courts of Justice Act: “The Government may remove a judge only upon a report of the Court of Appeal made after
inquiry at the request of the Minister of Justice.”
1. Jurisdiction of the SCC
 Conseil argues that no appeal lies to SCC from QCCA’s report, because it isn’t a judgement but a recommendation that is not
binding on the MoJ
 An appeal lies to the SCC if:
o It involves a final judgement rendered by the highest court of final resort in a province/on a matter
o The court is of the view that the question is important and ought to be decided by the court
 Is the QCCA’s report a “judgement” or a “decision”? Does it determine any rights of the parties in dispute? Gonthier J. says the
QCCA’s report is a decision.
o Appellate courts are creatures of statute: their authority is solely conferred by legislation
o s. 95 CJA confers QCCA with the authority to consider cases of judicial ethics
o The QCCA’s report does not only assist the MoJ in making a decision; it is a mandatory step in the procedure that
leads to the removal of a provincial judge
 The fact that the QCCA’s report is a decision and not merely an opinion is what ensures the constitutionality of QC’s regime for
removal of a provincial judge (security of tenure)
 Since the QCCA’s report is a decision, SCC has the jurisdiction to review it
2. Jurisdiction of the Conseil de la Magistrature
 Since ethical breach occurred before his appointment, T argues Conseil has no jurisdiction to reprimand him
 Two conditions must be met for Conseil to have jurisdiction:
o 1. Must have jurisdiction over the person who is the subject of the complaint
o 2. Must have jurisdiction over the matter that is the subject of the complaint
 Any alleged failure to comply with the code of ethics fulfils this requirement
 The principle of judicial independence requires the Conseil to have jurisdiction in this matter – primary responsibility
for the exercise of disciplinary authority over a judge should lie with judges at the same level.
 To place such responsibility outside the judiciary would call its independence into question: needs to be judged by other judges.
3. The Requirement of an Address to the Legislature
 T argues that s. 99 CA1867 requires an address to the Legislature to remove a judge
o s. 99 does not apply to provincial judges, only superior court judges
 Valente sets out 3 essential conditions of judicial independence to fulfil s. 11(d) of Charter: Security of tenure, financial
security, and institutional independence
 Security of tenure: appointment must be made until age of retirement and must be secure against discretionary interference by
the Executive
 In federal judges, this means need an address to Parliament in order to remove a judge
 This is not a constitutional requirement for provincial judges – need only two criteria fulfilled:
o 1. The judge may be removed only for cause related to his or her capacity to perform judicial functions
o 2. There must be a judicial inquiry to establish that such cause exists, at which the judge must be given an
opportunity to be heard
 This judicial inquiry is performed by the QCCA in QC.
 The existence of the report by the QCCA is a sufficient restraint on the power of removal
o 3. The judicial inquiry’s findings have to be to some extent binding on the Executive (or at the very least, if it is
an exoneration it is binding)
 The recommendation is essentially binding on the executive (this is why it is a decision, not an opinion)
4. The Role of the Judge
 The judicial function is absolutely unique: judges are first and foremost the ones who state the law, grant the person rights or
impose obligations on him or her.
 Judge is the pillar of our entire justice system, and the rights/freedoms that system promotes/ protects
 Accordingly, the personal qualities, conduct, and image that a judge projects affect those of the judicial system as a
whole and the confidence that the public places in it
o Public confidence in the system of justice is essential; ensures its effectiveness, and thus maintains the rule of law
 Public demands virtually irreproachable conduct from anyone performing a judicial function
 What is demanded from a judge far exceeds what is demanded of a normal citizen: the greatest restraint, the greatest propriety,
the greatest decorum. We expect our judges to be almost superhuman.
 The test for whether a judge should be removed is: Is the conduct for which the judge is blamed so manifestly and totally
contrary to the impartiality, integrity and independence of the judiciary that the confidence of individuals, appearing before the
judge, or of the public in its justice system, would be undermined in him/it, rendering the judge incapable of performing the
duties of his or her office?
In This Case: a reprimand cannot restore the public’s confidence in the judge. He must be removed.
Ratio: The standard of conduct to which judges are held is almost superhuman; if they conduct themselves in a way that would
shake public confidence in their fitness, they must be recommended for removal.
Provincial Court Judges’ Assn. of New Brunswick v. New Brunswick (Minister of Justice), [2005] SCC
Facts: Provinces are losing money; they lower the judge’s salary!
Issue:
 Can a province lower judicial remuneration without violating the principle of judicial independence?
 Must there be a compensation commission process to change judge’s salaries?
Reasoning:
 Judicial salaries can be maintained or changed only by recourse to a commission that is independent, objective and
effective.
 The commission’s report is consultative, not binding. Its recommendations must be given weight, but the government
retains the power to depart from the recommendations as long as it justifies its decisions with rational reasons. Reasons
that are complete and that deal with the commission’s recommendations in a meaningful way will meet the standard of
rationality; there must be a reasonable factual foundation
 A reviewing court is not asked to determine the adequacy of judicial remuneration but must focus on the government’s
response and on whether the purpose of the commission process has been achieved.
 3-step test 1) Has the government articulated a legitimate reason?
 2) Are the reasons on a reasonable factual foundation?
 3) Has the commission process been respected and have the purposes of the commission (preserving judicial independence
and depoliticizing the setting of judicial remuneration) been achieved?
 Must check to see if the government’s recommendations have all these elements!
Rule: Follow the 3-step test! Legit reason, reasonable factual foundation, respected the commission’s process?
Canadian Judicial Council
 Federal body created under the Judges Act
 Mandate to promote efficiency, uniformity, and accountability, and to improve the quality of judicial service in the superior courts
of Canada.
 Reviews any complaint or allegation by members of the public and the Attorney General about the conduct of a s.96 judge.
 Council can make recommendations, including removing a judge from office.
 Chaired by the CJC; 38 other Council members, who are the chief justices and associate chief justices of Canada’s superior
courts, the senior judges of the territorial courts, and the Chief Justice of the Court Martial Appeal Court of Canada.
 Canadians rightly demand a high degree of professionalism and good conduct from their judges.
 They also need judges who are independent and able to give judgments in court without fear of retaliation or punishment.
 Main purpose is to set policies and provide tools that help the judicial system remain efficient, uniform, and accountable.
Reg. v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte
 A man shall not be a judge in his own cause, nemo judex in sua causa
 Principle is not confined to a cause to which the judge is a party, but applies also to a cause in which he has an interest; he must
recuse himself
 Not limited to financial interest, can be moral interest as well; can be a strong commitment to some cause/belief/association

in this case, the judge is recused because he is involved in an Amnesty International chapter, and the main Amnesty International
organization is an intervener in the case; judge is committed to the well-being of the charity; judge did not even have an
governing member of the body, but the close relationship of director was enough!
 Cornerstone of the legal system is the impartiality of the tribunals by which justice is administered
 If the judge fails to disclose his interest in the case and sits in judgment upon it, the decision cannot stand
 Not enough that the judge insists/guarantees that he will remain impartial and unbiased; the appearance of impartiality is just as
important! Justice must seen to be done!
 This judgment must be based off the reasonable person standard; would the reasonable person be suspicious of a possibility of
bias?
R. v. S. (R.D.), 1997, SCC
Facts: A white police officer arrested a black 15-year old, R.D.S., who had allegedly interfered with the arrest of another youth.
Accused was charged with a number of crimes, including assaulting a police officer. Context - Nova Scotia - history of racial
discrimination. The police officer and the accused were the only two witnesses, and provided widely differing accounts of the events.
Youth Court Justice, Justice Sparks (she’s black), determined that the accused should be acquitted. While delivering her reasons, she
remarked that police officers had been known to mislead the court in the past, that they had been known to overreact with non-white
groups and that this indicated a questionable state of mind. Crown alleged that these comments created a reasonable apprehension of
bias.
Issue: Did the trial judge’s comments give rise to a reasonable apprehension of bias?
Holding: No
Ratio:
Dissent (Major, Sopinka and Lamer): disagreement with majority on the outcome; agrees with Cory J on the nature of bias and the
test to determine if there was a reasonable apprehension of bias.
Justice Sparks stereotyped police officers and applied the stereotype to the case in order to make a decision (i.e. concluded
that RDS was more credible and police officer was racist/lying)
Whether racism exists in society is not the issue; rather, it’s whether that particular police officer’s actions were motivated
by racism, and there was no evidence of this presented at trial. The trial judge’s comments were not based on proper
evidence.
Life experience is not a substitute for evidence. The judge is not allowed to be an independent investigator
In this case, there is a false stereotype created. Judges are allowed to use their life experience, but they cannot judge
credibility based on irrelevant witness characteristics (ex. occupation)
Concerned with the fairness and the appearance of fairness of the trial, the absence of the evidence is an irreparable defect
and is an error of law
Concurring opinion: (Judge Sparks unbiased, comments justified)
Disagree with Cory on the test for reasonable apprehension of bias and its application to the case
Test for reasonable apprehension of bias:
Apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the
question and obtaining thereon the required information.
o Person must be familiar with the circumstances of the case
There is no such thing as judicial neutrality (different from impartiality). Reasonable person isn’t looking for the judge to be
a neutral cipher
The reasonable person is not only a member of the Canadian community, but more specifically, is a member of the local
communities in which the case at issue arose (possesses knowledge of local facts and racial dynamics) - the reasonable
person has a complex and contextualized understanding of the issues
Application of the test to this case:
Judge must be aware of context in which a situation occurred; judicial inquiry into context provides the requisite
background for the interpretation and application of the law - judge can take notice of actual racism known to exist in a
society
Spark’s comments are justified and betray no bias. The judge did not rule that the overreaction was motivated by racism, but
rather, that there was reasonable evidence that the actions could have been racially motivated.
Majority: (Judge Sparks unbiased, but comments close to the line)
Preliminary issue: the standard of review.
o If circumstances gave rise to a reasonable apprehension of bias, she was in excess of her jurisdiction – appellate
courts have a duty to review jurisdictional error
Impartiality: a state of mind in which the adjudicator is disinterested in the outcome and is open to persuasion by the
evidence and submissions
Bias: a state of mind that is in some way predisposed to a particular result or is closed with regard to particular issues
If actual or apprehended bias arises from a judge’s words or conduct, it can be remedied by disqualification on application
to presiding judge or by appellate review of the judge’s decision
The Test for a Reasonable Apprehension of Bias
The threshold for finding a reasonable apprehension of bias is very high - must be a real likelihood or probability of bias. Is
always a fact-specific analysis.
o Need only find a reasonable apprehension of bias – impossible to determine if actual bias existed  but once
found, a reasonable apprehension of bias colours the entire proceeding: cannot be cured by subsequent
correctness of the decision
Judges cannot make comments based on generalizations or make findings that were not based on the evidence before them
The reasonable person who apprehends bias should be informed, and taken to be aware of social reality that forms the
background to a particular case
Application to the Facts
Assessment of credibility is a very subjective process that deals with a lot of intangibles (judge must be very careful to
appear neutral in assessing witness credibility); but presuppositions cannot be used to assess it
o Only after a witness has testified can the finding of credibility be made - all witnesses are given equal opportunity
to establish their credibility
The judge gave convincing reasons as to the veracity of the officer’s testimony.
-
Judge Sparks’ comments were inappropriate; they showed an offensive preconception
But they do not give rise to a reasonable apprehension of bias – she explicitly stated that she was not saying that the officer
in this case was lying or overreacting.
The remarks are “worrisome and come close to the line” but it’s necessary to read them in the context of all the
circumstances, and doing so would not lead a reasonable person to conclude that the judge was biased
Judge Ruffo’s Case
Judge Ruffo was a judge on the Cour du Quebec – Tribunal de la Jeunesse. She was pro-children’s rights and extremely vocal about
this. She openly, out of court and in, criticized existing laws and procedures in the child welfare system. She also talked publicly
about her cases. Tons of complaints had been brought against her, and she had been warned or reprimanded a few times. She lost her
judgeship because she was thought to be too partisan to be perceived as impartial. Some examples of her epic fails: bringing children
to the minister’s office (issuing an illegal order), making ruling/judgments on issues not brought to the court, appearing in
commercials, accepting gifts or token amounts of money, friendly relationships with parties in court proceedings without disclosing
interest to parties
Court’s inquiry and recommendation is guided by the four fundamental pillars of ethical framework: 1) the judge’s commitment to
the law, 2) his or her adherence to typically judicial modes of operation and thought, 3) the preservation of his or her impartiality,
and 4) the prohibition against using the prestige associated with the judicial function for purposes other than what it is meant to
serve.
Roderick A. Macdonald, “Parameters of Politics in Judicial Appointments” 1 September, 2010 Report produced for the
Bastarache Committee
 A centrepiece of the Rule of Law in democratic states is the concept of judicial independence
 A judiciary that is free from interest or partiality in deciding disputes is essential to the notion of decision
 A doctrine of separation of powers is necessary to provide an effective check on the abuse of power by the political branches of
government
 Judicial independence embraces four elements: neutral appointment, security of tenure, financial independence, and
administrative autonomy
 The principle of neutral appointment is contested. In some democratic states, the notion that judges should be accountable to the
people is invoked to justify the election of judges
 Can human decision-making be purged of subjectivity? No, it is impossible to be objective, we should accept it
 There is rarely, if ever, an objectively ‘best candidate’ for appointment; different criteria ranked differently
 The point is we can’t avoid this subjectivity, but we need to be transparent! We cannot create a process that hides this subjectivity
from public scrutiny/
 A distinction is drawn between ‘political considerations’ of the type that may legitimately enter into the appointments calculus,
and “Political considerations” that must be extirpated from the appointments process
 There is an undeniable human element to judging; by necessary implication, there is an undeniable human aspect to selecting
judges
 Appointing judges is not everything; there are moments in time where we can make sure that the judiciary is impartial and
independent; recusals, professional training, etc
Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate
 To receive lifetime appointment to the Court, a candidate must first be nominated by the President and then confirmed by the
Senate; an important role is played midway in the process by the Senate Judiciary Committee
 Since 1789, the Senate has confirmed 120 nominations out 154
 Politics has also played an important role in Supreme Court appointments. The political nature of the appointment process
becomes especially apparent when a President submits a nominee with controversial views, there are sharp partisan or ideological
differences between the President and the Senate, or the outcome of important constitutional issues before the Court is seen to be
at stake.
 This is a political decision!
Philip Slayton, “Canadians deserve to know who the next PM would put on the bench”
 Contrasts the American and Canadian judicial appointment process
 Appointing judges is the most important task for the PM as he will single-handedly shape Canada’s most significant governance
institution for a generation
 “Long after the prime minister has gone off to enjoy a well-earned rest, the judges he chose will be sitting in Ottawa, deciding
critical social, political and economic issues that confront Canada, perpetuating the views of the person who picked them.”

Judges make law. And their beliefs influence the law they make. We should know how the PM wants to shape the SCC
Summary of Bastarache Report
 It would go against democratic principles to disqualify candidates solely on the basis of their past political involvement
 Executive appointment has several advantages: efficiency, flexibility and protection of the confidentiality of candidates
 To prevent executive discretion from undermining public confidence in the quality and independence of the judiciary, the process
must be made as transparent as possible, and the executive must provide reasons for its decision to appoint a particular individual
 The limitation of executive discretion can only be achieved through the application of formal criteria to ministerial decisions
 Discretion must be limited by a requirement to choose from among a short list of candidates
 Transparency requires greater public access to all stages of the judicial selection process, the work performed by the selection
committees and the criteria used by the committee members
 Two recommendations: creation of a secretariat and selection committee
 Secretariat: administer the work of the selection committee, to choose members of the public who will sit on the committee and
to report on the committee’s proceedings to the National Assembly
 Standing Committee: 30 members appointed for 3-year terms operating 7-member panels; will have a delineated procedure for
selecting judges
A6: Open, Public Courts
Quebec Charter of Human Rights and Freedoms
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.
Sierra Club of Canada v. Canada (Minister of Finance) (2002) –(SCC)
Facts: Canada guaranteed a loan to China to support its use of a Canadian Crown corporation (Atomic Energy of Canada Ltd. –
AECL) to build two nuclear reactors in China. Legislation in Canada says that all governmental financial assistance to projects is
subject to the requirement that the projects conform to Canadian environmental standards; Sierra Club is an environmental group
challenging the loan guarantee.
In order to prove their compliance with Canadian environment standards, AECL is relying on an affidavit made by one of its senior
managers, which depends on a set of Confidential Documents.
Sierra demanded the release of the confidential documents so that it could cross-examine the senior manager, but AECL says they
can’t release them without a confidentiality order (are the property of the Chinese government).
Issue: Can the confidentiality order be issued? Holding: Yes.
Reasoning:
 The court must ensure that the discretion to grant the order is exercised in accordance with Charter principles because a
confidentiality order will have a negative effect on the s.2(b) right to freedom of expression. Two step test:
o 1. An order is necessary to prevent a serious risk to an important interest, including a commercial interest, in the
context of litigation because reasonably alternative measures will not prevent the risk
 The risk must be real and substantial, well grounded in evidence, posing a serious threat
 The interest must be one which can be expressed in terms of a public interest in confidentiality, where there
is a general principle at stake
 Must consider not only whether reasonable alternatives are available to such an order but also to restrict the
order as much as is reasonably possible while preserving the interest in question
o 2. The salutary effects of the order, including the effects on the right of civil litigants to a fair trial, outweigh its
deleterious effects, including the right to free expression, which in this context includes the public interest in open and
accessible court proceedings.
Must adapt the test to the particular circumstances of the case:
o The risk/interest = harm of AECL’s commercial interests by violating their contractual obligations of confidentiality; it
must be shown that this info has remained confidential at all relevant times, that proprietary/commercial/scientific
interests could reasonably be harmed, and that the info has been collected under the assumption that it would remain
confidential
o The confidentiality order would have significant salutary effects on the AECL’s right to a fair trial.
 If the order was denied, the AECL could not mount a proper defence as the info withheld is crucial to a proper
defence
 Allowing a confidentiality order would allow all parties to cross-examine the documents, assisting in the
search for truth, a core value underlying freedom of expression
 There may also be a substantial public security interest in maintaining the confidentiality of a nuke
Deleterious effects will be measured by these core values: 1) seeking the truth and common good; 2) promoting selffulfilment of individuals; 3) ensuring that participation in the political process is open to all persons.
 By not granting the order, we would miss out of these core values
 The only restriction relates to the public distribution of the documents, a fairly minimal intrusion into the open
court rule
 The narrow scope of the order coupled with the highly technical nature of the documents significantly temper
the deleterious effects that the order would have on the public interest in open courts
Ratio: Decision of whether or not to make a confidentiality order must be made according to the principles set out in
Dagenais/Mentuck. A confidentiality order may be made in order to protect commercial interests, if it can be related to the greater
public interest
o
Dagenais v. Canadian Broadcasting Corp (1994), SCC
Facts: 4 individuals who were members of a Catholic religious order were charged with the sexual abuse of young boys at Ontario
Catholic schools. CBC had put together a miniseries called “The Boys of St. Vincent” which was basically a fictionalized account of
the case currently being tried. The accused were worried that it would affect the jury, so as to make the trial unfair to the accused –
so they applied for an injunction to stop CBC from airing the show (seeking a publication ban).
Question: should the publication ban be ordered?
Holding: NO
Emphasis on importance of the freedom of expression and freedom of the press
Post-Charter, there is equal status given to ss. 2(b) and 11(d). This requires a consideration of both the objectives of a
publication ban, and the proportionality of the ban to its effects on protected Charter rights
A publication ban should only be ordered when:
(a) Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because
reasonably available alternatives will not prevent the risk
(b) The salutary effects of the publication ban outweigh the deleterious effects to the free expression of those
affected by the ban
The efficacy of a publication ban is also a relevant factor in this analysis
The party claiming bears the burden of justifying the limitation on freedom of expression.
Application to the case:
The objective of the ban was a legitimate one – directed at preventing a real and substantial risk to the fairness of the trial of
the four accused.
The initial band was far too broad; reasonable alternative measures were available
General comments on publication bans
Concerns about the efficacy of publication bans: jurors are not always adversely influenced by publications; judges are
effectively able to instruct juries to exclude certain information; technological advances have made it difficult to
meaningfully restrict flow of information
The court reformulates the Oakes test for balancing deleterious and salutary effects: There must be a proportionality
between the deleterious effects of the measures which limit the rights and the objective; there must also be proportionality
between deleterious and salutary effects of the measures
Re Vancouver Sun (2004) – CML (SCC)
Facts: Criminal Code allows for the conduct of a judicial investigative hearing. In this case, the hearing is related to two alleged acts
of terrorism (airport bomb, Air India crash). Crown wished to question the Named Person. Judge ordered that the hearing be held in
camera; gave no notice to accused, press, or public. Press found out the hearing was happening and challenged the secrecy orders.
Issue: What are the considerations governing the suspension of the open court principle?
Reasoning:
Majority (Iacobucci, Arbour JJ. + 4):
 “Open court principle” = hallmark of a democratic society; applies to all judicial proceedings
o Publicity is the soul of justice; guarantees integrity of the judicial process by demonstrating that justice is administered
in a non-arbitrary manner, according to the rule of law
o Maintains independence/impartiality, legitimacy, public confidence
o Is an important part of the freedom of expression (s. 2(b) Charter)
 Dagenais/Mentuck test: balances freedom of expression and other important rights/interests – a publication ban should be
ordered when:
o 1. Such an order is necessary in order to prevent a serious risk to the proper administration of justice (because
reasonable alternative measures will not prevent it)
o 2. The good effects of the ban outweigh the bad (the deleterious effects on the rights and interests of the parties/public)
o The test is applicable to all discretionary judicial decisions by a trial judge to limit freedom of expression by the press
during judicial proceedings
 The investigatory judicial hearing; analogy to application for search warrants  need to be held in secret in order to ensure its
usefulness?
The court rejects the notion of presumptively secret hearings – if Parliament wanted judicial investigative hearings, they
must have wanted these hearings to contain as many guarantees that come from judicial involvement as are compatible with the
task at hand
 The existence of the order/the hearing, and as much of its content as possible, should be made public
 In the case at hand, the level of secrecy was unnecessary; Named Person does not request confidentiality anymore; this person is
a potential Crown witness in which there are 3rd party interests; much of the info discusses is already public
 At the end of the hearing, judge should put in place a mechanism whereby its existence and as much of its content as possible
should be publicly released; judge should keep confidential only so much which is needed to not unduly jeopardize the interests
of the Named person.
Ratio: Court hearings, even if investigative, are presumptively to be held in open court unless the Dagenais test is satisfied

Toronto Star Newspapers Ltd. v. Ontario, [2005], SCC






Facts: The Crown brought an ex parte application for an order sealing the search warrants claiming that public disclosure of the
material could identify a confidential informant and could interfere with the ongoing criminal investigation.
Reasoning: The Dagenais test applies to all discretionary court orders that limit freedom of expression and freedom of the press
in relation to legal proceedings
Courts proceedings are presumptively ‘open’, and public access will be barred only when the appropriate court concludes that
disclosure would subvert the ends of justice or unduly impair its proper administration
The Dagenais test must be applied in a flexible and contextual manner.
A party seeking to limit public access to legal proceedings must rely on more than a generalized assertion that publicity could
compromise investigative efficacy. The party must allege a serious and specific risk to the integrity of the criminal investigation
“In any constitutional climate, the administration of justice thrives on exposure to light – and withers under a cloud of secrecy”
AB c Vaillancourt
 AB wants to use a pseudonym to pursue a case against his mentor doctor because he does not want to ruin the networking
capabilities in the small world of Montreal Medecine
 Courts rejects the claim; to override the principle of the open court, there must be more at stake than a simple, personal, subjective
interest
BB c Quebec
 Court affirms Dagenais case in Quebec
 Plaintiff demands use of pseudonym in an interlocutory judgment as the main case proceedings is political in nature; plaintiff
suggests that no harm is done if the confidentiality order is granted
 Courts disagree; must uphold the open court principle, was not shown that the private interest should override the public
interest/public order; furthermore, the info in which he wants to become detached from is already public!
“There are subtle behavioural changes when you know you may be watched by the public.”
A4. The Lawyer
Civil Code of Quebec on Mandates
Read CCQ 2130-237
Québec’s Code of ethics of advocates AND Law Society of Upper Canada Rules of Conduct, Part 2
Essentially, a summary of the Legal Ethics course
MacDonald Estate v. Martin [1990] SCJ No. 41
Facts: Dangerfield, a former solicitor for the appellant (Martin), transferred her employment to a law firm acting for the respondent
(Gray).
During her work with the appellant, Dangerfield was actively engaged in the case and was privy to many confidences disclosed.
Dangerfield and senior members of Thompson, Dorfman, Sweatman have sworn affidavits that the case has not been discussed since
Dangerfield joined the firm.
The appellant brought an application in the Court of Queen’s Bench in which he sought a declaration that the Thompson firm was
ineligible to continue to act as solicitors for the respondent.
Issue: What is the standard to be applied in the legal profession in determining what constitutes a disqualifying conflict of interest?
Holding: From public perspective ask: (1) Did the lawyer receive confidential information attributable to a solicitor and client
relationship relevant to the matter at hand? (2) Is there a risk that it will be used to the prejudice of the client? Here: (1) Yes, (2) Yes.
Reasoning:
Sopinka J: Legal Ethics—Policy Considerations-Begins by outlining the three competing values: (1) high standards of the legal
profession and the integrity of the system of justice; (2) a litigant should not be deprived of his/her choice of counsel without good
cause; (3) the desirability of permitting reasonable mobility in the legal profession.
Note that the profession is changing: movement towards larger firms and mergers are common practice. Thus, ethical practices have
to reflect these changes.
In Canada, the courts tend to apply a stricter test which reflects concerns for the appearance of justice, “in light of current attitudes
towards conflict of interest, justice and the appearance of justice and concept of fairness.”
The Appropriate Test—The “probability of mischief” standard is not high enough. The test must be that the public represented
by the reasonably informed person would be satisfied that no use of confidential information would occur.
Two questions: (1) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant
to the matter at hand? (2) Is there a risk that it will be used to the prejudice of the client?
Question 1 poses a problem because exploring the matter may reveal the confidential information sought to be protected. Instead it
should be shown by the client that there existed a previous relationship which is sufficiently related to the retainer from which it is
sought to remove the solicitor, the court should infer that confidential information was imparted unless the solicitor satisfies the court
that no information was imparted which could be relevant.
Question 2 is whether the confidential information will be misused. It is known that a lawyer with confidential information cannot act
against his client or former client, but questions arise where it is another partner or associate representing the client. The concept of
imputed knowledge is rejected (unrealistic in the era of the mega-firm).
But there is a strong inference that lawyers who work together will share, thus institutional measures should be taken (Chinese
wall/cone of silence).
Although, until the CBA has determined any institutional guarantees, the court is unlikely to accept the effectiveness of such
measures. Note: a fortiori undertakings and affidavits are not sufficient.
The Application to the Case-- (1) Dangerfield actively worked on the case and is in possession of confidential information. (2) There
is nothing beyond the sworn statement, which is not sufficient to demonstrate all reasonable measures have been taken.
Cory J: Would impose a stricter duty. The preservation of the integrity of the justice system is the most important value.
There should be an irrebutable presumption that lawyers who work together share each other’s confidences.
The desirability of permitting mobility should not dictate the course of legal ethics.
Finally, the requirement of change imposed on a client is a small price to pay for maintaining the integrity of the justice system.
Ratio: (1) The test must be that the public represented by the reasonably informed person would be satisfied that no use of confidential
information would occur. Two questions: (i) Did the lawyer receive confidential information attributable to a solicitor and client
relationship relevant to the matter at hand? (ii) Is there a risk that it will be used to the prejudice of the client?
BEYOND CONFLICTS OF INTEREST TO THE DUTY OF LOYALTY
 Author’s take on how R v Neil changed the duty of loyalty from the Macdonald Estate case
 Conflict of interest arises in situations of: disclosure of confidential info, divided loyalties between clients, fiduciary obligations,
client choice, conflicts requiring file transfer between lawyers, economic interests of the legal profession i.e. large national firms
 Nowhere in any codes of conduct is there a principle of absolute liability
 Basic rules: 1) simultaneous representation is permissible if there is informed consent; a prohibition on acting in the ‘same or
related matter’
 Views of the effect of the R v Neil case
 Revisionists emphasize: a) intertwining loyalty with the fiduciary nature of the lawyer-client relationship; b) emphasizing the core
proposition that there is a general prohibition against representing a client against a current client of the firm, even in fresh and
independent matters; c) expansive view of loyalty; d) legal profession’s interest in mobility is circumscribed by the duty of loyalty
 Concerns: strategically using Neil to block competitors from using a law firm; firms may not want to take on medium-sized
clients for fear of producing a future conflict of interest; how will this affect the national firm model?
 How have courts applied Niel? Priority must always be given to duty of loyalty when there are competing interests;
 Strother suggests this duty of loyalty continues well after retainership is cancelled
 Acceptance of gifts not allowed either, even if done voluntarily

Conclusion: Duty of loyalty and confidentiality must always be paramount!
---R v. Neil [2002] SCJ No 72
General issue: Proper limits of a lawyer’s “duty of loyalty” to a current client where no issue of confidential information arises in the
other matter that is potentially against the current client’s interest.
Facts:

Neil is the accused (scheme to defraud Canada Trust; also forging of documents in a divorce proceeding) and had solicitor-client
relationship with V law firm; L was part of V law firm. Neil alleges that his lawyers violated their duty of loyalty, and on that
account the conviction that grew out of their conflict of interest should be stayed.
The V firm and L were connected to Neil’s case in two ways, beside their solicitor-client relation:

(1) L brought a court application to regularize a divorce which had been obtained on the basis of documents allegedly forged by
Neil. At the suggestion of the trial judge in the divorce, L suggested to the husband that he report the forgery to the police. L in
fact steered him to the same police officer who was responsible for the Canada Trust file and other cases pending against Neil.

(2) With respect to the Canada Trust indictment which was factually unrelated to the divorce proceedings, Neil consulted the V
firm (including L) at a time when L, unbeknownst to him, was acting for Neil’s business associate whom L knew, or ought to
have known, would also be charged in the same proceedings.

Thus, same member of V firm (L) had a finger in each of the conflict situations.
Questions:

Did the law firm owe a duty of loyalty to Neil not to take the cause of one of his alleged victims at the same time as it
maintained a solicitor-client relationship in respect of other matters simultaneously pending (Canada Trust matters)?  Yes

Would a finding of conflict of interest give Neil grounds for a stay of proceedings for abuse of process?  No
Reasons (Binnie J):

The mandate to regulate a divorce obtained on documents allegedly forged by Neil, though factually and legally unrelated to the
Canada Trust matters, was adverse to Neil’s interest; the V law firm, and L in particular, put themselves in a position where the
duties they undertook to other clients conflicted with the duty of loyalty which they already owed to the accused (Neil).

The law firm, as a fiduciary, cannot serve two masters at the same time; assurance of undivided loyalty to client is necessary for
public (and litigants’) confidence in the legal system; duty of loyalty to client (fiduciary nature) includes putting the client’s
business ahead of the lawyer’s business.

However, Neil falls short on issue of remedy; law firm’s conduct did not affect fairness of the divorce action trial and no issue
of confidential information; falsification of the court documents came to light without the involvement of the V firm and the
independent investigation by the police militates against a finding of abuse of process.
Ratio:

A lawyer must do everything to avoid having two masters  the duty of loyalty to a current client (fiduciary nature) includes
the much broader principle of avoidance of conflicts of interest
Notes:

The duty of loyalty includes: the duty to avoid conflicting interests, a duty of commitment to the client’s cause, and a duty of
candour with the client on matters relevant to the retainer.

The general rule is that a lawyer may not represent one client whose interests are directly adverse to the immediate interests of
another current client — even if the two mandates are unrelated — unless both clients consent after receiving full disclosure
(and preferably independent legal advice), and the lawyer reasonably believes that he or she is able to represent each client
without adversely affecting the other.





Finney v Barreau de Quebec, 2004
Facts
Belhassen is a terrible lawyer. He was found guilty on several occasions by the Barreau’s Committee on Discipline and the
Professions Tribunal. The Professional Inspection Committee declared him incompetent in 1990 and recommended striking him
from the roll. The Barreau did not strike him, but instead put him on probation and appointed a tutor to watch over him
Finney hired Belhassen in 1990 but soon left after general dissatisfaction. Belhassen threatened and brought many abusive &
unfounded legal proceedings against Finney. To deal with the numerous claims in 1993, the superior court created a special hearing
which resulted in all the claims either being thrown out or withdrawn by Belhassen. Belhassen was also found guilty of representing
both Finney and her divorced spouse in the same case. The tutor resigned after being unable to contact Belhassen and reported to the
Barreau stating that an ad hoc committee was needed to deal with Belhassen in 1993. Finney (respondent) filed several complaints to
the Barreau against Belhassen between 1991-1993 demanding action. Finney’s lawyer withdrew from the case after being threatened
by Belhassen
The ad hoc committee finally finished their review in March 1994 and recommended to strike Belhassen from the roll. The Barreau
eventually responded in May 1994 by provisionally striking Belhassen from the roll
Belhassen was later found guilty on 17 counts in 1998 and was struck from the roll for 5 years
Action: In 1996, Finney filed a claim against the Barreau for breach of its obligation to protect the public in the handling of the
complaints made against B. She charges that the Barreau took no action on the complaints
Issue
 What is the nature of the civil liability rules that apply to the activities of the Barreau? What is the scope of its immunity while
exercising the duties and functions assigned to it by legislation?
Relevant Legislation
Professional Code
23. The principal function of each corporation shall be to ensure the protection of the public
For this purpose it must in particular supervise the practice of the profession by its members.
193. […] shall not be prosecuted for acts done in good faith in the performance of their duties.

















CCQ
1376. The rules set forth in this Book apply to the state and its bodies, […], subject to any other rules of law which may be
applicable to them.
1457. Every person has a duty to abide by the rules of conduct which lie upon him […] so as not to cause injury to another
Ratio
CCQ 1376 allows for different levels of liability for public bodies. Professional orders’ duty is to protect the public (s.23), and they
cannot be prosecuted for acts done in good faith while performing this duty (s.193). Bad faith is broad enough to encompass serious
carelessness and recklessness.
“In accordance with 1376 CCQ, the rules of civil liability that are applicable to the actions of the Barreau are the general rules set
out in 1457 CCQ, with the changes that reflect the nature of the faults that are required in order to establish liability that is limited by
the partial or limited immunity granted by s.193 Professional Code.
Reasoning
The Professional Code gives the Barreau a monopoly over the performance of its members. The monopoly was created to recognize
the social importance of the role of the lawyer in a democratic society, and it imposes significant obligations on the professional
order to monitor the competence and supervise the conduct of its members.
The Professional code establishes two mechanisms for monitoring competence: professional inspection by the Syndic and the
committees on discipline
Goal is to maintain and improve professional standards.
Professional inspection is concerned with lawyers’ competence, while discipline focuses on their conduct.
The role of professional inspection is preventive, while the role of discipline is punitive.
Recommendations are forwarded to the appropriate decision-making bodies of the Barreau. The action taken is necessarily governed
by a binding legal framework
However, because of the difficulties and risks to which the professional orders are exposed in performing their various functions, the
legislature has granted them immunity for acts engaged in good faith in the performance of their duties or functions, s. 193
In this case, the Barreau’s conduct did not meet their mandate to protect the public, and the conduct cannot be shielded by s.193
immunity
The lack of diligence and incredibly slow response to the complaints laid out in the Facts is unjustifiable in the face of
Finney’s exceptional situation. The nature of the complaints and Belhassen’s professional record made it clear that it was an urgent
case needing a timely response to follow their mandate and protect the public.
Despite the urgency of the situation the Barreau took over a year to request provisional disbarment, which was in fact quickly
granted by the Committee on Discipline. In the interim, Finney had repeated her complaints. The Office of Professions had more
than once asked the Barreau for an explanation. Even the Superior Court had to get involved!
The Barreau’s inaction amounted to gross carelessness and serious negligence characterizing it as an act of bad faith.
Recklessness implies a fundamental breakdown of the orderly exercise of authority, to the point that absence of good faith can be
deduced and bad faith presumed.
Bad faith can be found even where there was no intentional fault.
In short, Belhassen posed a grave and imminent danger to the public, the Barreau was aware of this danger and responded
recklessly and in bad faith
Judgment
The Barreau is civilly liable under CCQ 1457. The damage suffered by Finley is causally connected to the Barreau’s inaction and
must pay $25,000 in moral damages.
Parizeau c Barreau du Quebec
 Interesting case where Parizeau is applying for reinstatement after being banned from the bar for 5 years for a lot of shitty screwups
 The hearing committee rips Parizeau apart; a long inquiry into his past actions; introduces documents that deals solely with the
past guilty actions, even ones that were not ruled on
 He is ultimately rejected from reinstatement, so he appeals to the Professions Tribunal
 Professions Tribunal calls the Hearing committee a ‘kangaroo court’; it transformed its duty to assess the qualities of the applicant
at the time of his application for reinstatement, and it assumed the role of the Disciplinary Committee
 The goal of the committee changed from assessing reinstatement to prolonging the ban from practice



Tribunal admits that one must look at the entire history of the applicant, but this is solely to inform; this cannot be the main
point/object of the Hearing Committee; one must also look to see if the applicant is qualified to be a member of the bar again
The Hearing Committee solely looked at past action and did not even touch upon Parizeau’s current qualities
The tribunal found that Parizeau has reformed his way, and is fit to rejoin today; the main difference with the Committee is that it
assessed Parizeau’s capacity on the day of application, not when he committed the guilty actions
Wendy, Matheson “Civility: Ten Litigators to Watch Out For”
 We always need to keep a civil temperament when in court and dealing with opposing counsel; you can be a zealous advocate
while maintain a respectful attitude
Michael Code, “Counsel’s Duty of Civility: An Essential Component of Fair Trials and an Effective Justice System”
Standards of civility amongst trial lawyers appear to be in decline in Canada.
The courts have harshly criticized the rude, insulting and unprofessional conduct of counsel.
The tactic of making unfounded or irrelevant personal attacks on the integrity of opposing counsel has been impugned.
Enforceable right to be protected against the uncivil behaviour of opposing counsel; it undermines fair trials.
The public interest duties of all counsel, as officers of the court, is to protect and advance the proper administration of justice.
The court has remedial powers to enforce these duties, including reprimand, injunction, costs and contempt.
The bar has a duty to enforce their own professional standards, which include the duty of civility.
Incivility has become particularly prevalent in pre-trial motions practise causing increasingly long trials.
We all need to re-dedicate themselves to the ideals of civility, both for pragmatic reasons of trial efficiency and for normative reasons
relating to public respect for the administration of justice.
Counsel who engage in serious forms of “incivility” do so because they believe it is to their advantage.
GG David Johnston’s address to the Canadian Bar Association
“A professional lawyer is an expert in law pursuing a learned art in service to clients and in the spirit of public service, and engaging
in these pursuits as part of a common calling to promote justice and public good.”
These obligations constitute the social contract the legal profession has with society.
There are three principal elements to any profession’s social contract. First, the profession is characterized by specialized
knowledge that is taught formally and obtained by experience and under supervision. Second, the State gives it a right to have
a monopoly and to control entry and exit standards and competence and, to some degree, fees. Third, it has a responsibility to
society to serve beyond the needs of specific clients.
We enjoy a monopoly to practise law. In return, we are duty bound to serve our clients competently, to improve justice and to
continuously create the good. That’s the deal.
As lawyers, we must attend to our relationships with justice, trust, education, social need, the firm and public service.
Between 1992 and 2007, the average number of court appearances needed to complete a criminal case more than doubled. The
average duration of a case also jumped from 115 days to 205 days.
The World Justice Institute’s study that ranks Canada ninth out of the twelve European or American nations surveyed on access to
civil justice.
Notes
 Art 234-242 recusal CCP
 Rule 37 in Ontario
B1) The Role of Procedure
Hamel v Brunelle and Labonté, 1977, SCC
Facts: Plaintiff wins a civil suit for $35,000. The trial judge adds in his reason that if the plaintiff had asked for more in her claim, he
would have awarded $53,000.
Defendant appeals decision and the plaintiff applies for an incidental appeal under art. 500 to raise her claim to $53,000.
Court of Appeal denies art. 50 motion as ‘it would allow the Court of Appeal to rule on a matter not decided by the trial judge’.
Issue: Did the Court of Appeal correctly apply their discretion to not allow the amendment?
Holding: No! SCC overturns this decision as it goes against art. 2 and the legislator’s intention to eliminate strict formulism
Reasoning:
The motion to amend was made in accordance with art. 523 if the CCP: “The Court of Appeal may, if the ends of justice so
require, permit a party to amend his written proceedings…”
Art 523 is part of a reform with the general intention of which is expressed in art. 2 of the CCP:
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.
The Court of Appeal’s reasoning is entirely contrary to the legislator’s intention in enacting the new CCP; all amendments needed
in order to rule on the dispute objectively should be allowed; that procedure be the servant of justice not its mistress. The
intention was to repeal the old maxim that “form takes precedence over substance.”
When a decision on a question of form results in a litigant losing his rights, it ceases to be a question of form and becomes a question
of law. It is a question of form only as long as a remedy is possible, not when a right is lost.
It is true that this is a discretionary power, but as it is a judicial discretion, the Court is under a duty to exercise it and to refuse its
exercise is unfounded in law.
In the case at hand, there is no reason to believe that, if in the pleadings plaintiff had also claimed a higher amount, the defendant
would have introduced evidence that they have refrained from introducing.
Ratio: Art. 2 seeks to eliminate strict adherence to formalism where to do so would impede the pursuit of justice.
B2. Interest
Finlay v Canada (Minister of Finance) 1986, SCC (On appeal from the Federal Court of Appeal)
Facts:
 Manitoba resident defined as a person in need by the Canada Assistance Plan
 He receives payments from Social Allowances Act, but percentage was deducted for a certain time
 Plaintiff claims that Act is contrary to public policy to help persons in need outlined in Canada Assistance Plan
 Sues for a declaration that the federal cost-sharing payments are illegal and injunction to stop them because they contribute
to the cost of the provincial system of assistance to persons in need fails to comply with the conditions and undertakings
imposed by the Canada Assistance Plan; the Plan is giving $$ to a program that violates it
Issue: Does a private citizen have standing to bring a non-constitutional challenge to legislation?
Reasoning:
 1) Does the plaintiff have a sufficient personal interest in the legality of the issue? 2) If not, does the Court have a discretion
to recognize public interest standing?
 Traditionally, only Attorney General could bring claims of purely public right or interest, can private citizens do this now?
 Must consider merits of applications in order to determine the matter to which the application related (standing)
 The general rule of standing is that you must show a sufficient personal interest in the legality of the exercised authority.
To attack an exercise of statutory authority one must show: (1) that the interference with the public right is one that also
interferes with a private right of his or (2) where no private right is interfered with there still is a link with some special
damage he suffers. The link or nexus cannot be speculative or too remote.
 In Finlay, the relationship between the alleged prejudice caused by non-compliance to the Plan and alleged illegality of
federal payment plan is too remote or speculate to grant standing under the general rule!
 Public interest standing: Finlay establishes that it is possible to grant public interest standing in non-constitutional claims
by an action against a statutory authority for public expenditure or administrative action.
 Justiciability: The matter must be a proper one for the courts to deal with judicially. It must clearly be a question of law.
 Plaintiff must prove 3 things: 1) A serious issue raised
 2) the person must have a genuine interest in the issue. This screens out the mere busybody
 These address judicial concern about the allocation of scarce judicial resources.
 3) The court needs to have the adversarial process with people most affected by the case. Discretion to recognize public
interest standing if there is no other way in which the issue could be raised (A-G won’t bring claim)! Must ask whether
anyone has a more direct interest than the plaintiff to challenge legislation.
Held: Appeal dismissed. The SCC uses its judicial discretion to grant public interest standing
Rule: A private individual may have public interest standing to bring forward a non-constitutional challenge if the claim raises
justiciable issues, the issues are serious and the plaintiff has a genuine interest in them! If denied standing, no other way for issue to
be brought to court!
Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 SCR 236 (CML)
Facts: CCC wants to challenge the Immigration Act claiming that it goes against the Charter and the Bill of Rights
Question: Does the CCC have standing to do so?
Holding: NO
- The main concern in the grant of public interest standing to an individual/organization is the need to balance access of the public
to the Courts with the need to conserve scarce judicial resources
- Growth of interference of state in life of citizen means increased conception of public rights
 In order to get public interest standing, the plaintiff will need to prove:
o 1. There is a serious issue to be tried
o 2. Plaintiff is affected by it directly or has a genuine interest as a citizen
o 3. No other reasonable and effective manner in which the issue may be brought before the court
 For example, public standing is not required when it can be shown on a balance of probabilities that the measure will be subject
to attack by a private litigant.
- The Charter indicates that a generous approach should be taken to public interest standing; legislation should not be immunized
from challenge and Canadians have a right to governance in accordance with the law (Justified by the Rule of Law statement in the
preamble and s.52)
- However, the courts maintain their discretion to refuse standing to individuals/groups and that there is no blanket allowance for
public standing:
- Concern for: allocation of scarce judicial resources, the need to screen out busybodies, that the determination of issues in
the courts benefit from the contending points of view of those most affected, proper role of the courts
- In this case, CCC’s claim fails on #3; not only do refugees have the means to bring challenges to the legislation, they have already
done so.
- Public interest groups can be granted intervener status when they do not have private standing and are useful to the courts in
that capacity
Ratio: Public interest standing may be granted where there is a serious issue, the plaintiff is directly affected by it or has a genuine
interest, and there is no other way the issue will be brought to court.
Bou Malhab v Diffusion Métromédia CMR inc, 2011 SCC
 Radio host makes racial comments against Montreal taxi drivers whose mother tongue is Arabic or Creole
 Can the plaintiff seek compensation through the institution of a class action for all those who fall into the category of “Montreal
taxi drivers whose mother tongue is Arabic or Creole”?
 The SCC says NOT IN THIS CASE; there is insufficient interest! This is especially true in a claim of defamation which is a very
personal injury and hard to abstract to a group!
 Para 43-45: An action in defamation can succeed only if personal injury has actually been sustained by all plaintiffs.
 To have the necessary interest to bring an action, a person must have sustained personal injury.
 An action can brought only by a person who is able to be a party to an action and who has a sufficient interest
 A person does not, simply as a member of a group, have a sufficient interest to bring an action in damages for injury sustained by
the group as a group. An interest will not be sufficient unless it is direct and personal.
 The general provisions of the CCP apply to class actions to the extent that they are not excluded/inconsistent with the specific
rules governing such proceedings (art 1051 CCP)
Borowski v Canada (Attorney General) 1989, SCC (On appeal from the Court of Appeal for Saskatchewan)
Facts:
 Appellant attacked validity of criminal cod relating to abortion on grounds that they contravened life and security rights of
the fetus protected by s. 7 & 15 of the charter.
Issue: Does a private citizen have standing to bring a non-constitutional challenge to legislation?
Reasoning:
 Doctrine of Mootness: A court may decline to decide a case which raises merely a hypothetical or abstract question. An
appeal is moot when a decision will not have the effect of resolving some controversy affecting the rights of the parties.
 Two-step approach: 1) Has the tangible and concrete dispute disappeared rendering the issues academic? 2) If yes, should
the court exercise its discretion to hear the case in the interest of clarity?
 Stare decisis: To stand by decisions; precedence is binding; how do you balance the need for certainty/predictability and
the ability for law to be flexible? Is this affected if we accept case that is moot?
Rationale for mootness
 1) Adversarial context, in which both parties have a full stake in the outcome, is fundamental to our legal system
 2) Judicial economy: Court must examine circumstances of a case to determine if it’s a worthwhile allocation of resources.
 3) Need for courts to be sensitive to effective role of judicial intervention and the judiciary’s role in our political
framework. Pursuit of a moot claim as a private reference in the abstract
 With respect to judicial economy, Burowski would not yield practical side effects; it would not be repeated and reviewable.
It was not in the public interest due to potential uncertainty that could result from decision lacking legislative context.
 With respect to courts law-making function, this appeal would intrude on the right of the executive to order a reference and
pre-empt a possible decision of Parliament by biasing the legislation it should enact.
 Appeal is moot because there is no longer a concrete legal dispute: Challenge to constitutionality disappeared when s.251 of
the Criminal Code was struck down (no legislative context to stand on).
Held: Appeal Dismissed. Appeal is moot and the appellant lacks standing to continue appeal.
Rule: When the court determines that there is no longer an issue at stake, they do not comment on the constitutionality of the issue.
The Canadian Bar Association v HMTQ et al
 The CBA is claiming that the provision of civil legal aid in BC is inadequate and that these inadequacies amount to breaches of
the Charter, written and unwritten provision of the Constitution and international human rights law
 The defendants, Her Majesty the Queen, wants the claim dismissed preliminarily on the basis of no standing
 And now we go onto a review of standing: the post-Charter standard is Finlay
 Thorson ratio: the majority held that the constitutionality of legislation is always justiciable
 Finlay: judicial discretion, having regard to the particular circumstances of a case, whether to determine the question of standing
as a preliminary matter; must see if the submitted documents set out with sufficient clarity the nature of the plaintiff’s standing
 Problem with this case: The CBA does not challenge any legislation nor government action!
 Borowski sets the general rule: public interest standing should apply only where the party is seeking a declaration that legislation
is invalid
 Other cases have chipped away at that: Operation Dismantle was on executive’s decision; Finlay: public interest standing should
only extent where a challenge to administrative action was analogous to a challenge to legislation
 RATIO: Serious issue must be a challenge on the limits of statutory, administrative, or executive authority
 In the case at hand, not challenging the limitations; there is a challenge attacking a failure to legislate or to have a scheme in place
that meets appropriate constitutional criteria as contented by the CBA
 Finlay: standing is not merely the right to assert a legal claim, but the right to seek particular relief
 There is no available remedy here! The CBA has no standing to assert a claim on behalf of an amorphous group of individuals
whose Charter rights may have been breached by a public program
 This is essentially asking the court a purely abstract question which would in effect sanction a private reference!
 3rd step: “No other reasonable and effective manner”
 Citizens should not have to deliberately expose themselves to criminal or regulatory charges in order to challenge legislation
 Just because the CBA is in a great position to challenge (a lot of resources), it is not appropriate for a court to grant or deny
standing on the basis that some other individual could do a better or more effective job of presenting the issues to the court
 Stops private reference
B3. The Parties
Prud’homme c Rawdon 2009 QCCA 2046
 This explains CCP 211, and how a court determines if they should grant intervener status to a group
 Interveners cannot be superfluous or doubling another group’s position
 There no risk of a floodgate effect; each intervener status must be determined on its individual merit; there is no minimum or
maximum amount of interveners to a case if they satisfy the requirements
 The quality of debate must be increased; the intervener’s must bring a fresh perspective/view to the case
 Intervener status is entirely up to the discretion of the Court
 Courts look favourably on groups that are able to represent social groups or interests susceptible to be affected by the court’s
decision
 211’s goal is not to create another party to the judgment, but rather to limit the intervener to reflections on how the law should be
seen, and how it will affect social groups/interest
 Interveners are particularly relevant in public interest cases where the case’s object transcend the unique interests of the pleading
parties
 Burden of proof is quite low, but it is on the intervener to show that they will be useful
B4. The Court of Jurisdiction (CCP 68)
CCQ. 83. The parties to a juridical act may, in writing, elect domicile with a view to the execution of the act or the exercise of the
rights arising from it.
Election of domicile is not presumed.
TITLE THREE
INTERNATIONAL JURISDICTION OF QUÉBEC AUTHORITIES
CHAPTER I
GENERAL PROVISIONS
3134. In the absence of any special provision, the Québec authorities have jurisdiction when the defendant is domiciled in Québec.
3135. Even though a Québec authority has jurisdiction to hear a dispute, it may exceptionally and on an application by a party, decline
jurisdiction if it considers that the authorities of another country are in a better position to decide.
3136. Even though a Québec authority has no jurisdiction to hear a dispute, it may hear it, if the dispute has a sufficient connection
with Québec, where proceedings cannot possibly be instituted outside Québec or where the institution of such proceedings outside
Québec cannot reasonably be required.
3137. On the application of a party, a Québec authority may stay its ruling on an action brought before it if another action, between the
same parties, based on the same facts and having the same object is pending before a foreign authority, provided that the latter action
can result in a decision which may be recognized in Québec, or if such a decision has already been rendered by a foreign authority.
3138. A Québec authority may order provisional or conservatory measures even if it has no jurisdiction over the merits of the dispute.
3139. Where a Québec authority has jurisdiction to rule on the principal demand, it also has jurisdiction to rule on an incidental
demand or a cross demand.
3140. In cases of emergency or serious inconvenience, Québec authorities may also take such measures as they consider necessary for
the protection of the person or property of a person present in Québec.
Air Canada v Mcdonnell Douglas Corp., [1989] 1 S.C.R. 1554
 An explosion occurred in the auxiliary fuel tank of Air Canada’s aircraft in Dorval, Quebec
 Air Canada had acquired the aircraft from Mcdonnell Douglas pursuant to a contract concluded in California
 Mcdonnell Douglas has their place of business in the US and have no domicile or property in the province
 Using art. 68(2) CCP, an action may be instituted “before the court of the place where the whole cause of action has arisen”.
 Air Canada’s cause of action is quasi-delictual, therefore we do not look at the where the contract was formed
 The Quebec s. 96 court does have jurisdiction because “the locus of an omission to warn must be determined by reference to the
place where the pre-existing obligation or duty ought have been performed, either where the user is located or where the goods
are used
 Since Air Canada’s maintenance base is in Quebec and the damage occurred in Quebec, it follows that the “whole cause of
action” arose in Quebec as the 3 requirements of a quasi-delictual (fault, damage, causation) claim occurred in Quebec
B5. Joinder!
Boutique Lace inc. c Maison Ogilvy inc, 500-09-014648-042 C.A. 2004

Plaintiff has a case of contractual liability against the defendant, and then successfully impleads another defendant on a case of
extra-contractual liability.
 Even where the fault lies in two separate regimes, a joinder can be allowed where the evidence will be used against both parties;
we try to minimize the duplication of court proceedings and the danger of contradictory judgments
B6. Motion to Institute Proceedings, Notice of
Presentation and Service
Draft Bill to Enact the New Civil Code of Procedure
§2. — Notification by public notice
129. Notification by public notice is by order of the court. Notification by public notice can also be used by a bailiff who has tried
unsuccessfully to serve a pleading or document and has recorded that fact in the certificate of service.
130. Notification by public notice is the publication of a document or a summary of a document in any medium by which the person
concerned can be reached, such as on a website recognized by an order of the Minister of Justice or its publication in, or on the
website of, a newspaper circulated in the municipality of the person’s last known address or the municipality where the immovable
that is the subject of the dispute is situated.
A document published on a website must appear for at least 30 days, whereas a document published in hard copy in a newspaper can
appear only once, in French; however, if required by the circumstances, the court can order that a document be published in a
newspaper more than once or that it be also published in English.
A public notice concerning an originating demand must direct the defendant to take delivery of the demand at the court office within
30 days or any other time specified, and must mention the court order or the fact that the publication was requested by the bailiff.
131. Proof of notification by public notice is evidenced by the filing with the court of a relevant extract from the published document,
showing the date and the mode or place of publication. Notification by public notice is deemed to have taken place on the first day of
publication.
§3. — Notification by technological means
132. Notification by a technological means is the sending of a document to the address identified by the addressee as the address
where the addressee agrees to receive documents, or to the address that the addressee publicly represents as the address where the
addressee agrees to receive documents, provided the address is active at the time of sending.
However, notification of a document by a technological means to a party that is not represented by a lawyer or a notary is permitted
only with the consent of that party.
133. Proof of notification by a technological means is evidenced by a transmission slip or, failing that, by a sworn statement of the
sender.
The transmission slip must set out the nature of the document, the court record number, the names and contact information of the
sender and the addressee, and the place, date and precise time of sending; it must also contain the information needed to verify that the
entire document was sent. The transmission slip is filed with the court only if a party so requests.

In sum, the new CCP is really getting into new technologies, i.e. internet, websites, email
American Lemans Series L.L.C. c. Stroll 500-05-065528-018 C.S. 2001
 Case where its seemingly impossible for the bailiff to serve notice of proceedings onto the defendant
 Bailiff exhausts all normal measures to serve, and the plaintiffs submit a special motion for serving under CCP 138; all the CCP
articles leading up to this discretionary use is explained
 The general rule is that you must serve notice into the hands of the recipient, and, in his absence, the hands of a reasonable
alternative who resided in the domicile or residence of the intended recipient.
 If there is no known domicile/residence in Quebec, service can be done to a reasonable person at the recipient’s business or
workplace
 Domicile, as interpreted by art. 75 of the CCQ is the place of principal establishment; residence is the place where the person
lives usually
 Art 138 grants the judge the large discretionary power to prescribe his own method of service, different from that contained in the
CCP if justified. This power is only limited by a demonstration that the service prescribed was exercised judicially or judiciously
 In the case at hand, the defendant claims that the exercise of art. 138 was unreasonable due to its granting under false pretences,
and, as a result, the entire proceedings should be thrown out. This claim is REJECTED!
 The irregularities were minor, and by in large, the affidavit used to justify the special service was factually accurate. Furthermore,
any irregularity in service by itself is enough to throw out a case in its preliminary stage. Everything always falls back to Art. 2 of
the CCP; justice should be the master of procedure, not its mistress
Australian couple served with legal documents via Facebook” The Telegraph 16 December2008
In what may be a world first, lawyers from Canberra law firm Meyer Vandenberg persuaded a judge in the Australian Capital
Territory's Supreme Court to allow them to serve the documents over the internet after repeatedly failing to serve the papers in person.
Droit de la famille — 111764, 2011 QCCS 3120
 The ex-husband refuses to communicate with his ex-wife in terms of new contact info, but they are still Facebook friends. The
judge decides to use Facebook to serve notice of proceedings. The dirtbag guy acknowledges the receipt of the service by replying
that he won’t give his contact info to her. The guy refuses to show up at his court date. The judge upholds the service and awards
the case ex parte to the ex-wife.
B.7) The 180 Day Rule
You have 180 days from service of motion to institute proceedings to must be heard or schedule for proof and hearing in 180 days, or
the case is thrown out!
B.8-11) Appearance to Defence
Weinberg c. Cinar Corporation, 2005 QCCA 1147
 Complicated case where the chief judge appointed a special judge to handle the case via 151.11
 The judge had to leave for a bit, so another judge heard a couple of motions
 Plaintiffs argue that the judge was not competent, only the special judge can hear all the cases
 Courts cites Article 4.1: The court sees to the orderly progress of the proceeding and intervenes to ensure proper management of
the case
 The judge was competent and needed to ensure the orderly progress of the proceedings!
 Art 151.11 allows for the special judge to appoint another judge in his absence under his administrative power in special case
management; it’s his judge to ensure efficient proceedings
Attilio Raffo Design inc. c. Delhi-Solac inc., 2005 QCCA 633
 Judge cannot refuse a written defense if it falls into the categories prescribed in art. 175.2
 If the judge feels that the lawyer’s conduct is dilatory, he rule on this matter after the defence is presented
B12-14) Procedure
RJR-MacDonald Inc. v. Canada (1994) – CVL (SCC)
Facts: The Tobacco Products Control Act regulates the advertisement of tobacco products and what warnings have to be placed on
the packages. RJR has challenged the amendments to the legislation, and has applied for release from their obligations to comply
with the new packaging requirements until the disposition of their main actions challenging the legislation (interlocutory relief), and
for 12 months thereafter (interim relief).
Issue: Should the applications for relief from compliance with the legislation be granted? Holding: No.
Reasoning:
Jurisdiction of the Court:
 The Court is empowered, both by s. 65 of the Supreme Court Act and r. 27 of the Rules of the SCC to not only grant a stay of
execution or of proceedings, but also to make any order that preserves the matter between the parties in a state that will prevent
prejudice pending resolution of the controversy
 In interpreting rules for SCC application, regard should be had to the purpose of facilitating the “bring of cases” before the court
“for the effectual execution and working of this Act”
 A stay of proceedings and interlocutory injunctions are remedies of the same nature - they must be governed by the same rules
 The three-part American Cyanamid test (adopted in Canada in Metropolitan Stores) should be applied to applications for
interlocutory/interim injunctions as well as stays in both private law and Charter cases.
 First Stage: An applicant for relief must demonstrate a serious question to be tried
o Applicant here essentially needs to show that their case is not frivolous or vexatious
o Whether there is a serious question should be determined by the motions judge on the basis of common sense and an
extremely limited review of the case on the merits
 The fact that an appellate court has granted leave to appeal the main action is an important consideration for
this case
 Second Stage: The applicant is required to demonstrate that irreparable harm will result if the relief is not granted
o
o
o
Must be a harm that cannot be remedied by the eventual decision on the merits in favour of the applicant
“Irreparable” refers to the nature of the harm rather than its magnitude
In Charter cases, even quantifiable financial loss may be considered irreparable if it is unclear that such loss could be
recovered at the time of a decision on the merits
 Third Stage: Assessment of the balance of inconvenience to the parties – which of the two parties will suffer the greater
harm from the grant of an interlocutory injunction?
o Consideration of the public interest must be taken into account when assessing the inconvenience which it is alleged
will be suffered by both parties
o When the nature and purpose of legislation is to promote the public interest, a motions court should not be concerned
whether the legislation has in fact this effect
o To see if the granting or the withholding of interlocutory relief would occasion greater inconvenience, must also
examine the nature of the relief sought and the harm the parties contend they will suffer
 Application to this case:
o 1. QCA stated there were serious constitutional issues with a total ban on tobacco advertising, and leave to appeal to
further investigate these issues has been granted by the SCC  there is obviously a serious question to be tried
o 2. There is irreparable harm because RJR will have to spend a lot of money to change its packaging (maybe only to
have to change it back); This harm is irreparable because the action aims to strike down legislation as unconstitutional
– the government does generally not pay damages to the successful party in these cases.
o 3. The losses to RJR are large financial losses – but big companies able to bear the blow, can pass off the costs to their
customers
o The public interest here (in public health awareness and decreasing the incidence of smoking) strongly outweighs
RJR’s private interest
Holding: Their application for a stay is rejected.
Ratio: This case sets out the three-step test applicable to applications for stays, interlocutory injunctions, and interim injunctions.
Celanese Canada v. Murray Demolition – CML
Facts: Celanese is suing Canadian Bearings et al. for stealing technology discovered during the demolition of their vinyl acetate
plant and making unauthorized use of it in the construction of such a facility in Iran. Celanese brought an ex parte application for an
Anton Piller order against Canadian Bearings. In the process of seizure, some of Canadian Bearings’s privileged communications
with their lawyers got in the mix. Canadian Bearings moved to have Celanese’s lawyers (who had seen these privileged
communications) removed from these proceedings.
Issue: Was the Anton Piller order improperly carried out and do Celanese’s lawyers have to be removed from the case as a result?
Holding: Yes.
Reasoning:
 The purpose of an APO is to seize and preserve evidence; ensures that unscrupulous defendants are not able to
circumvent the court’s processes by making relevant evidence disappear
o These orders are now increasingly issued in ordinary civil disputes, which makes sense in the modern era of computer
technology in which documents are easily moved/destroyed
 It is a draconian order that allows a massive intrusion on the privacy of the targeted party
 An APO bears an uncomfortable resemblance to a private search warrant
o No notice is given to the party against whom it is issued – they learn about them on execution
o They have no opportunity to challenge the order or the evidence on which it was granted
 APO doesn’t authorize forcible entry (unlike a search warrant); but exposes the target to contempt of court proceedings unless
permission to enter is given  to targets, this is not a meaningful distinction
 Requirements for an Anton Piller Order:
o 1. Plaintiff must demonstrate a strong prima facie case
o 2. Damages to the plaintiff of the defendant’s alleged misconduct – potential or actual – must be very serious
o 3. There must be convincing evidence that the defendant has in its possession incriminating evidence
o 4. Must be shown there is a real possibility that the defendant may destroy such material before the discovery
process can do its work
 The strength of the APO is that is made ex parte and is interlocutory – motions judge has to trust the affiants  heavy obligation
on the moving party to make full and frank disclosure of all relevant facts
 Terms of the Anton Piller Order (have to be precise and safeguard the rights of the parties):
o Appointment of the supervising solicitor that is independent of parties – must be present to ensure integrity of search 
is an officer of the court
o Plaintiff should provide an undertaking/security to pay damages if the order is unfounded or wrongfully executed
 In this case, the APO was rushed and the evidence was examined by Celanese’s lawyers before they made sure it was not
privileged – they bear the onus of showing they were not tainted by the information therein found, and they have not discharged
it  using the reasonable person standard, they fail to show that no use of confidential information would occur
Ratio: Anton Piller orders must be taken extremely seriously for they are extreme measures; the order itself must safeguard the
rights of the target party. Anton Piller appears in both the common and civil law; combo use of CCP 20 and 46

Similar CCP article is 438; perpetuation of evidence; the big difference is that this motion is served upon the other party; similar
in that motion is served before proceedings begin
438. Anyone who, expecting to be a party to a legal proceeding, has reason to fear that some evidence that he will need may become
lost or more difficult to present may, by motion, ask:
(a) that the witnesses whose absence or incapacity he fears be heard before the hearing;
(b) that anything movable or immovable, the condition of which may affect the outcome of the expected legal proceeding, be
examined by a person of his choice.
AQLPA c AIM, 2006 QCCA
o Although they have the same practical effects of safeguarding the applicant’s rights and interests, Safeguard orders are
distinguishable from interlocutory judgments
o Its existence stems from and article 46: They may, at any time and in all matters, whether in first instance or in appeal, issue
orders to safeguard the rights of the parties, for such time and on such conditions as they may determine.
o Para 3 of CCP 754.2: If on presentation of the application for an interlocutory injunction the record is incomplete, the court fixes
the date for the proof and hearing and issues any order necessary to safeguard the rights of the parties for the time and on the
conditions it determines.
o The distinguishing factors is that an order to safeguard is initiated solely by the discretion of the court, there needs no motion to
safeguard rights.
o Also, there is no prescribed maximum time limit on safeguards; it exists until a court order says otherwise
o In the case at hand, AQLPA received a favourable safeguard order, but at the hearing for injunction, they lost the case. Their
position is that the safeguard order has not been extinguished via an extension of CCP 760.
o The court says bullshit; the safeguard order is tied to the hearing of an injunction; if the application for injunction fails,
there is no meaning to the existence of a safeguard order.
Fuoco c. Société générale de financement du Québec 2006 QCCA 1491
o 396.4. The court may, on an application, terminate an examination that it considers excessive, vexatious or useless, and rule on
the costs.
o Courts use this power to disallow discovery in several instances
o The applicant had already been allowed discovery where it was seen to be useless, vexatious
o Discovery was meant to be a procedure to accelerate judicial proceedings and bring about the resolution of conflicts
o This concept is given rather large discretion to the parties in the hopes that it will be used usefully
o The absence of pertinence and connectivity allows a court to exclude certain applications for questioning
o The exercise of discovery cannot be used as a fishing expedition!
o To determine the pertinence and relevance of the questions posed during interrogations after defence, one must identify the nature
and object of the case proceedings
o If it shown to be a CCP 396.4 case, judges can correctly use their discretion if it does impede on the ends of justice
Jones Equipment Inc. c. TLD Gauthier inc., 1997 CanLII 10103 (QC CA)
 Judge suggests that video-conferencing should be used instead of an interrogation because it will save money
 Court of Appeal slaps the judge on the wrist; you cannot disallow the use of discovery if it is done in a legitimately means; CA
finds that the judge’s suggestion was outside his jurisdiction! Lawyer is allowed to bring the other party in for interrogation!
B15) Pleadings

CCP articles deal with The Right to Amend (C.C.P. article 199-200); Motion to Institute Proceedings (Claim, Statement of Claim)
(C.C.P. article 110); Defense (Plea) (C.C.P. articles 172, 175.1); Answer (C.C.P. articles 182 -183); Inscription for Proof and
Hearing (C.C.P. articles 274 – 278)
American Plain Writing Act 2010
 The purpose of this Act is to improve the effectiveness and accountability of Federal agencies to the public by promoting clear
Government communication that the public can understand and use.

The term ‘‘plain writing’’ means writing that is clear, concise, well-organized, and follows other best practices appropriate to the
subject or field and intended audience.
B16) Costs


Important legislation: Tariff of Court Costs in Civil Matters and Court Office Fees
Tariff of judicial fees of advocates
Viel c. Entreprise immobilière du Terroir Ltée 2002 CanLII 41120 (QC CA)
 Case of extreme bad faith resulting in the vitiation of a contract
 Judge awarded exemplary damages to the winning party to compensate their lawyer’s fees
 Court of Appeal says this is not allowed; there is no causal link between the lawyer fees awarded and the abuse of rights; the
general rule is that no party can be compensated for hiring a lawyer to defend their rights
 The only time where exemplary damages may be awarded is in exceptional cases when the other party abuses their procedural
rights in a vexation, scandalous, abusive manner i.e. use of many useless procedural motions; the causal link here is that the
damages stem from the costs to use a lawyer to fend off needless procedural matters
 Affirmation that common law ‘lawyer-client expense’ does not exist in Quebec
 NOTE: Section 54 of the CCP and following: POWER TO IMPOSE SANCTIONS FOR IMPROPER USE OF PROCEDURE
British Columbia (Minister of Forests) v. Okanagan Indian Band (2003) – CML (SCC from BCCA)
Facts: Okanagan Indian band started logging on Crown land; Minister of Forests issued a stop-work order. Indian band argued that
they had aboriginal title to the land in question, but they did not have the funds to defend that view at trial. Trial judge refused to
award interim costs (i.e. refused to order the Crown to pay the Indian band’s costs); CA overturned and allowed it.
Issues: 1. What is the nature of the court’s jurisdiction to grant costs on an interim basis? 2. What are the principles that govern its
exercise? 3. Can an appellate court review trial court’s discretion as to costs?
Holding: SCC upholds the interim cost order made by the BCCA, with dissent.
Reasoning:
LeBel J. for the majority:
 Traditional Costs Principles: costs are awarded at the end of proceedings to indemnify the successful party for expenses they
sustained either defending an ultimately unfounded claim or pursuing a valid legal right
 Modern Costs Principles (Costs as an Instrument of Policy): court can also use costs to encourage settlement/penalize a party
who refuses a reasonable settlement offer, deter frivolous actions/defences, discourage unnecessary steps in the litigation, make
the legal system more accessible to litigants who seek to vindicate a legally sound position
 Access to justice – where individual litigants of limited means seek to enforce their (especially Charter) rights, courts can
exercise their discretion – in RARE cases – to mitigate the harshness of the traditional cost principles
 Interim costs and the jurisdiction of the court: power to order interim costs is inherent in the nature of the equitable
jurisdiction of the court as to costs
 Test for when the order for interim costs can be made:
o Impecunious party: without the order, party will be deprived of opportunity to go forward with the case (i.e. no other
options to get the case funded)
o Meritorious case: claimant must establish a prima facie case of sufficient merit to warrant pursuit
o Special circumstances: court must be assured that this case falls within extraordinary class where this exercise of
powers is appropriate
 In public law cases, these “special circumstances” must be that case is of sufficient public interest  i.e.
concerns public at large and not just individual litigant
 All these requirements are met in this case: The Bands are broke as shit and cannot proceed to trial without an order for interim
costs. The case is of sufficient merit; the issues are of profound importance to the BC people; the determination would be a
major step towards setting unresolved problems in Crown-aboriginal relationship
 The Band must ensure that they try to negotiate the issue, so as to not be tempted to the drag out the process unnecessarily in
court through the Crown fees
Major J. for the dissent:
 Sees discretion of courts with respect to costs as residing almost exclusively at the trial level
 Precedent shows that interim costs have almost exclusively been awarded in family cases, where the parties have special
relationships justifying that
 Awarding costs in advance can be seen as prejudging the merits – the objectivity of the court that does so will be questioned
(Majority deals with this by saying that costs can be awarded independently of the outcome of the case)
 This is a form of “judicially imposed legal aid”  responsibility lies with legislature

Says that the majority’s test for when this remedy ought to be used doesn’t provide trial judges with enough guidance – public
law cases are almost always in the public interest
Ratio: Interim costs may be awarded to an impecunious party with a meritorious case that, in cases of public litigation, engages the
public interest.
The Canadian Bar Association v. Her Majesty the Queen et al
 The Ontario Law Reform Commission to determine the circumstances in which costs should not be awarded against a person who
commences public interest litigation. These are:
 (a) The proceeding involves issues, the importance of which extends beyond the immediate interests of the parties involved;
 (b) The person has no personal, proprietary or pecuniary interest in the outcome of the proceeding, or if he or she has an interest it
clearly does not justify the proceeding economically;
 (c) The issues have not been previously determined by a court in a proceeding against the same defendant;
 (d) The defendant has a clearly superior capacity to bear the costs of the proceeding;
 (e) The plaintiff has not engaged in vexatious, frivolous or abusive conduct.
 In Okanagan Indian Band the SCC held that to succeed in an application for advance costs a claimant must establish:
 (1) That the claim to be adjudicated is prima facie meritorious;
 (2) Public interest, in the sense that the issues raised transcend the individual interests of a particular litigant, are of public
importance, and have not been resolved in previous cases; and
 (3) That it genuinely cannot afford to pay for the litigation, taking into account the scope of the litigation and that no other
realistic option exists for bringing the issues to trial.
 In the case at hand, the case has already been ruled out as having no merit, therefore no public interest litigation costs can be
awarded; if a case cannot survive a motion to strike, it should not be considered on an access-to-justice basis
B17) Ontario Rules of Procedure
















Check out the attached document with the Ontario Rules of Procedure
Check out rule 2.01(2): The court shall not set aside an originating process on the ground that the proceeding should have been
commenced by an originating process other than the one employed.
Rules of joinder; rule 5-6 v CCP 66-67, 270Commencement of proceedings; rule 13 v CCP 68; Ontario does more, thought up more possibilities
Service of Document; Rule 16 v CCP 138
Summary judgment; rule 20 v CCP 54.3, 165
Pleading in action; rule 25 v CCP 76, 85-86
Amendment rules; same for both
Discovery; rule 29 (establishes proportionality) v 396.1
Discovery after defence; rule 31.04; huge difference with Quebec; avoids the defence from fishing for an argument; Quebec is
one of the only jurisdictions that allow it
Motions in the court; rule 37 v CCP 88; Check out 57.03(1) as well on how to control vexatious motions
Listing for trial/inscription; rule 48 v CCP 274.1; once this happens, you can’t make any more motions; it’s ready for trial! Check
out in Ontario that there are different lists for types of cases
Pre-trial conferences; rule 50 v CCP
Security for costs; rule 56 v CCP 152, 165, provisional costs; scope to receive costs is greater in Ontario
Simplified procedure; rule 76 v CCP 175.2- ; Quebec’s dealio is oral v written argument; Ontario first asks if we go to summary
trial; Ontario’s small claims court is <$100,000; Ontario has much stricter time limits
Civil Case Management; rule 77 v CCP 151.11, 4.1; parties are in control at all times
B18) Class Actions

In CCQ, 4 requirements: 1) identical, similar, related; 2) facts alleged seem to justify; 3) composition of group; 4) class rep
Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534
 231 investors are not paid the interest due to them under a government program; they commence a class action
 The defendants contest the composition of the group as well as the damage suffered








SCC states that in the absence of comprehensive class action legislation, the courts must fill the void under their inherent power to
settle the rules of practice and procedure as to the disputes brought before them
Class actions should be allowed in common law if: 1) the class is capable of clear definition; (2) there are issues of law or
fact common to all class members; (3) success for one class member means success for all; and (4) the proposed
representative adequately represents the interests of the class.
The court must also be satisfied, using their discretion, that there are no countervailing considerations
The court must strike a balance between efficiency and fairness; a class action should be struck only where the deficiency is ‘plain
and obvious’
On procedural matters, all potential class members should be informed of the exercise of the suit, of the common issues that the
suit seeks to resolve, and of the right of each class member to opt out
The court also retains discretion to determine how the individual issues should be addressed, on a flexible case-by-case basis
In the case at hand, while differences exist among investors, the investors raise essentially the same claims requiring resolution of
the same facts. IF material differences emerge, the court can deal with them when the time comes; simply asserting the possibility
of differences does not negate a class action
Defendants should be allowed to examine the representative plaintiffs as of right but examination of other class members should
be available only by order of the court, upon the defendants showing reasonable necessity
Guimond v. Quebec (Attorney General), [1996] 3 S.C.R. 347
 This case did not satisfy art. 1003 b), that “the facts alleged seem to justify the conclusions sought”
 The judge is not called upon to determine the merits of the case, but instead must exercise discretion to decide whether the
application has a “serious colour of right”; this condition will be met simply by showing a prima facie right.
 An action for damages under the general law of civil damages will not generally lie against the government for damages arising
from the enactment or enforcement of laws subsequently determined to be unconstitutional
 The respondent based his claim on a bare allegation of unconstitutionality; the facts do not warrant a departure from the general
rule; application for class action denied!
Bou Malhab v. Diffusion Métromédia CMR inc., [2011] 1 S.C.R. 214
 Here, the composition of the group and injury sustained by each member is called into question!
 An individual will not be entitled to compensation solely because they are a member of a group about which offensive comments
have been made. Each member of the group must have sustained personal injury.
 The requirements of proving the existence of the elements of fault, injury and causal connection in respect of each member is not
dispended with the context of a class action
 The plaintiff must prove an injury shared by all members of the group. Proof of injury suffered by the group itself and not
by its members will not in itself by enough to rise to such an inference.
 The plaintiffs is not required to prove the exam same injury; they must prove that an ordinary person would have believed that
each of the persons personally sustained damaged to his or her reputation
 Generally speaking, the larger the group, the more difficult it is to prove that personal injury has been sustained.
 The more strictly organized and homogeneous the group, the easier it will be to establish that the injury is personal to each
member; the imputing of a single characteristic to all members of a group that is highly heterogeneous would make an allegation
of personal injury implausible
 For defamation, can take into consideration the context in which it said, what is said, to whom, historical perspective
 In the case at hand, an ordinary person would not have believed that the racist comments made by A damaged the reputation of
each member of the group of taxi drivers working in Montreal whose mother tongue is Arabic or Creole
St. Lawrence Cement Inc. v. Barrette, [2008] 3 S.C.R. 392
 Company violated art. 976 by producing a lot of dust; Barrette institutes a class action
 The common injury felt by each plaintiff is rooted in the same fault; just a matter of varying levels of injury
 Trial court used his discretion to vary damages awarded based from zone to zone and year to year
 SCC upholds judge’s discretion; reasonable and flexible approach to complex damage assessment
C.1) Proportionality
Professionalism and proportionality, the Honourable Warren Wrinkler
 The justice system fails to be accessible to many. The number of people who cannot afford a lawyer and who are forced to
represent themselves in important legal proceedings has ballooned in the last ten years.
 Access to justice simply connotes the laudable notion that people can and should resolve conflicts fairly, affordably and quickly
through a court process.
 In Ontario, >60% of civil lawsuits proceed under simplified procedural rules. These provide faster, less expensive mechanisms for
getting cases to trial.
 Advances also made through the increased availability of contingency fees and class actions.
 The time and expense devoted to a proceeding ought to be proportionate – that is, relative – to what is at stake
 a lawsuit should be planned and carried out in a manner that reflects the monetary value, complexity and importance of the
dispute
 Proportional litigation is pivotal to ensuring true access to justice.
 the most effective cross-examinations and the most persuasive legal submissions are the most straightforward ones.
 Good lawyers do not let their clients take carriage of the case. They listen to and act on cues from the bench about how a case is
going. They have enough experience and self-confidence to concede losing arguments and to focus on the winner.
 Expert lawyering includes bringing critical judgment to bear, and giving clear and candid advice about settlement options early
on, before limited resources are eaten up by unproductive litigation steps.
 Not every case is winnable. Lawyers need to explain realistically, at the outset, about the prospects of the case.
 Judges who “get to the point” are the ones who provide the cues and guidance required to keep counsel and parties focused on the
real trial issues and, at the same time, keep a truly open mind.
 movement toward increased intervention by the courts case manage. Although judges may know more about the system than
clients do, counsel invariably have a more detailed and nuanced understanding of the lawsuit.
 Courts are not institutionally equipped to micro-manage every lawsuit in the system.
 Reforms should aim to simplify procedures; reduce litigation steps and costs for litigants; ensure legal leadership from the
bar; achieve dispute resolution more expeditiously; afford the judiciary more time to preside over irresolvable cases.
Onyx Industries c Alcan Inc. 2005 Sp Ct
 Onyx tries to change court hearing from Montreal to Chicoutimi; he bases this on the fact that although both parties live in
Montreal, it would be easier if it would be heard in the jurisdiction where his business is
 He bases this claim in art. 4.2; changing jurisdiction will make things run more smoothly
 Court finds that the article 4.2 intent was to ensure a smooth and proper administration of justice by respecting the other rules
stipulated in the Code.
 Article 4.2 is limited to procedural acts and does not affect other rules in the CCP
 As the court was properly chosen pursuant to article 68, it cannot be overruled! Article 68 gives the plaintiff the right to choose,
article 4.2 can’t take that right away

Article 75.01 allows in exceptional cases for the chief justice to designate another district for court proceedings only if it is in
the interest of all parties
Dunn v Wightman, 2006 QCCS
 This case has been going on for ten years. Defendants make a motion to allow for even more evidence!
 I agree with Plaintiffs’ counsel that the mere possibility of introducing new evidence on common issues would impose on the
presiding judge or judges of the coming trials a monstrous learning curve. In my view, this proposal, if accepted, would quickly
turn into a Pandora’s box. To all intent and purposes, this would be almost the equivalent of retrying the common issues.
 There are limits (or there ought to) on the amount of cumulative evidence a party to a legal proceeding may produce at trial. The
law of diminishing returns applies to evidence gathering. And after 10 years worth of evidence, the benefits of any additional
proof would likely be dismal while the costs to the parties and to the courts resources would rise
 Moreover, there are also limits on what can be asked of trier of fact, may he or she be a Superior Court judge, without risking
cognitive overload. Repetition and protraction are counterproductive in helping the trier of fact arrive at the right conclusion.
 A so called bonified or revised version of the evidence in the other Castor related cases would neither protect the principle of
finality of judgments, nor serve the interests of justice
 Delays and costs are Justice’s worst foe; Defendants’ argument would have the effect of giving this adage another grim
illustration in a case already stricken by this disease. And this, as we have seen, is simply unacceptable.
C.2) Vexatious Pleaders & Abuse of Procedure
Acadia Subaru c. Michaud, 2011 QCCA 1037
 An example of SLAPP: strategic lawsuit against public participants; large corporation trying to silence a small activist
 Even in connection with a petition under article 54.1 C.C.P., the quantum of punitive damages cannot as a general rule be decreed
as excessive or unreasonable in the abstract.
 In the absence of proper evidence, the motions judge was not in a position to measure the preventive purpose of the claim.
 By reducing the amount of punitive damages claimed by each plaintiff from $5,000 to $200, the judge inappropriately made an
order that would bind the trial judge hearing the case on the merits
 There may be a further opportunity, as relevant evidence comes to light, to attack the amount of punitive damages claimed in
accordance with the criteria of article 1621 C.C.Q.
 At this early stage, the conclusion of the motions judge that the amount was improper cannot be sustained.
II The Cross-Appeal
 1) Mr. Michaud's allegation that the action is clearly unfounded in law pursuant to article 54.1 C.C.P. begs the question, as a
preliminary matter, whether it should be dismissed under article 165(4) C.C.P.
 Assuming the facts alleged in the motion to institute proceedings to be true, the car dealers' claim properly alleges the grounds for
an action in civil liability. Given that the suit cannot be dismissed under article 165(4), it cannot be considered to be clearly
unfounded in law under article 54.1;
 2) the fact that the car dealers' claim has colour of right does not, in itself, preclude a declaration that the action in defamation is
improper or appears to be improper under article 54.1 as an attempt to defeat the ends of justice;
 3) Mr. Michaud acquitted the primary burden of establishing summarily that the action may be improper under article 54.2. He
did so by indicating how, at this preliminary stage, the car dealers' motives appear to be aimed at silencing Mr. Michaud rather
than obtaining compensation for a civil wrong.
 4) the car dealers did not meet the reverse onus that fell to them under article 54.2 by showing that the action was not excessive or
unreasonable and justified in law;
 5) the appearance of abuse justifies an order for relief pursuant to article 54.3. As the action proceeds, security for costs should be
ordered in favour of Mr. Michaud to protect him from the untoward financial consequences of what appears to be, at this
preliminary stage, an abuse of process.
3834310 Canada inc. c. Pétrolia inc. 2011 QCCS
Facts
Issue
Holding
Rule
Notes:
Mr. La Pointe was interviewed in Le Soleil and criticized the royalties of Petrolia
Petrolia sues La Pointe for $300,000 and $50,000 for what he said.
Brings a 54.1 motion to dismiss suit
Can the case be thrown out under art. 54.1 CCP?
Yes. The court throws out the whole case on the motion.
To dismiss a case under art. 54.1 the court must look at the context under which the defaming comments were
said.
Entire case thrown out via 54.1; clearly used to shut up LaPointe; “Worse things have been said about better people”
Québec c Babin, 2010 QC CQ 785
Facts
Issue
Holding
Rule
-
Tenant and landlord made an agreement in which the tenant was going to respect each condition.
The tenant did not respect the agreement, the landlord demanded the resiliation of the lease  the Regie allowed
this.
Defendant files hundreds of motions to either delay judgment, execution of judgment and appeal of judgment 
hence the request for a declaration of abuse of procedure before this court.
Can the Regie de lodgement use art. 54.1 + to declare a litigant vexatious?
Yes.
The Regie de Lodgement has the power to apply articles 54.1 and following in cases of abus of procedure. This
follows from art. 46 which gives judges and tribunals all the powers necessary for the exercise of their
jurisdiction.
C.3) Unrepresented Litigants & Legal Aid
Attorney General of British Columbia v. Christie [2007] 1 SCR 873
Facts: British Columbia’s Social Service Tax Amendment Act (No. 2), 1993 imposed a 7 percent tax on the purchase price of legal
services ostensibly to fund legal aid in the province. Christie, a litigation lawyer, challenged the constitutionality of the legal service
tax, claiming that the net effect of the tax was to make it impossible for some of his low-income clients to retain him to pursue their
claims. The Act required him to submit tax to the government even though the fees on which the tax had been levied were not paid.
The legal profession is the only professions in BC whose services are taxed in this way.
Issue: Is the legal service tax unconstitutional? Is there a constitutional right to access to justice?
Reasoning:
Christie’s claim is for a general right to legal services, namely, “access aided by a lawyer where rights and obligations are at stake
before a court or tribunal”. Respondent must show that constitution mandates this particular form or quality of access to justice.
The proposed right is a broad one  “would cover almost all cases that come before courts or tribunals where individuals are
involved
 it would also cover not only court proceedings, but related legal services and costs
 the “logical result would be a constitutionally mandated legal aid scheme for virtually all legal proceedings, except where the
state could show this is not necessary for effective access to justice”.
Financial implications would be significant  alter the legal landscape and impose a considerable burden on taxpayers
Two arguments are made in support of this right:
1) Access to justice is a fundamental constitutional right that embraces right to have a lawyer in relation to court and tribunal
proceedings  based on BCGEU v. British Columbia (1998), where this Court affirmed a constitutional right to access to
courts, which was breached by pickets impeding access.
However, the right affirmed in BCGEU is not absolute  legislature has the power to pass laws in relation to administration of
justice, which implies the power to impose at least some conditions on how and when people have a right to access the courts.
2) Right to have a lawyer in cases before courts or tribunals is constitutionally protected as an aspect of the rule of law or as a
precondition to it.
Rule of law foundational to our constitutional structure  explicitly recognized in preamble to Constitution Act, 1982 and
implicit in “prescribed by law” requirement in s. 1 of the Charter.
Rule of law embraces at least three principles that have been recognized:
1) law is supreme over officials of government as well as private individuals so as to prevent arbitrary exercise of power;
2) requires creation and maintenance of an actual order of positive laws;
3) the relationship between the individual and the state must be regulated by law.
General right to legal services is not currently a recognized aspect of the rule of law, but in Imperial Tobacco this Court left
open the possibility that it could be expanded. Should it be?
A review of the constitutional text, jurisprudence, and the history of the concept of the rule of law suggests that such an
interpretation is not supported.
First, text of Charter negates such a general right  it provides for a right to counsel in one specific situation under 10(b) in
criminal matters  if a general right were allowed, this section would be redundant.
Furthermore, it has been found that 10(b) doesn’t preclude the finding of a right to counsel in other situations  e.g. s. 7 has
been found to imply a right to counsel as an aspect of procedural fairness where life, liberty and security of the person are
affected  but this does not support a general right.
Historically, right to counsel has been understood to be limited in that it’s only extended to the criminal context.
Holding and Ratio: There is no general constitutional entitlement to legal services in relation to proceedings in courts and tribunals
dealing with rights and obligations.
Statement of Claim of the Canadian Bar Association in Canadian Bar Association v HMTQ
 Legal aid is the means by which Canadian Governments ensure that Poor People are equal beneficiaries of the rule of law and
enjoy the equal benefit and protection of the law.
 However, in BC, publicly funded and provided civil legal aid is characterized by exclusions and severe restrictions
 These inadequacies are particularly pronounced in the areas of family law, poverty law, and immigration and refugee law, and
effectively deny access to justice to people who cannot afford legal counsel in matters that threaten their fundamental interests:
life, liberty, livelihood, equality, health, housing, safety, security, sustenance
 Proposes that BC Legal Aid does not comply with the Constitution because it is a) inconsistent with the rule of law which
guarantees meaningful and equal access to the courts, and b) it violates the Charter as per the fundamental interests delineated
above
 In sum, BC Legal Aid results in a systemic denial of access to justice to, and systemic discrimination against, Poor People
who cannot afford legal assistance and representation in matters that threaten their Fundamental Interests.



Poor People are vulnerable because they disproportionately belong to societal and/or demographic groups that have historically
been disadvantaged and continue to be discriminated against; they lack economic security and must struggle to ensure that their
basic needs are met first at the expense of all other interests
Poor people are subject to extra layers of regulations thereby increasing the legal needs of Poor People
In addition, Poor People are exposed to the same type of civil legal problems as people who are not living in poverty but with
greater frequency because of inherent vulnerabilities caused by their poverty
Canadian Bar Association, “Canada’s Crisis in Access to Justice” April 2006
Governments’ attempts to characterize access to justice as unaffordable are not persuasive.
Deficiencies in legal aid result in a high proportion of unrepresented litigants trying to make their own way through complex legal
proceedings. This reality bogs down the court system/
Judges are asked to assist unrepresented litigants to ensure a fair trial, but also maintain independence and impartiality.
Disadvantaged people may not have faced incarceration if they had legal counsel and access to adequate social programs.
Failing to facilitate legitimate claims for family child support, division of matrimonial property, access to social programs increases
poverty.
It denies poor people access to domestic remedies when denied benefits and services entitled under Canadian law.
C.4) Other Means of Resolving Disputes
Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, [2007]
Facts
Issue
Holding
Rule
-
Man bought a computer at a very low price that had been a mistake on the part of Dell.
Dell would not honour purchase so man and Union des consommaturs decided to launch a class action against
Dell.
Dell said that the contract of sale specified that disputes should be referred to arbitration, so the class action should
be dismissed.
Can Dell set an arbitration clause in their contract of sale with purchaser?
Yes.  class action dismissed.
In challenging an arbitrator’s jurisdiction, look to whether questions of fact or law are at issue:
1) Fact: Court should normally refer case to arbitration
2) Law: Court does not need to refer case to arbitration (940.1 CCP)
3) Mixed Law and Fact: Court must be refer case to arbitration
Martin Teplitsky, “The Privatization of Adjudication”
 Adjudicative ADR will never be more than a supplement to the civil justice system
 useful role in providing alternatives for those who seek privacy, a speedy hearing or less formal procedure, or a particular judge.
 Non-adjudicative ADR techniques should be used on a discretionary basis, either where an ongoing relationship is involved—for
example, family law—where the dispute is polycentric, or where there are many parties and complex issues.
 No assistance should be the norm—ADR the exception
 Private judging—or “rent-a-judging”—has expanded over the past decade in California into a multimillion-dollar industry. Unlike
arbitrators or mediators, rent-a-judges are officially part of the state court system, and their judgments have the same effect as
judgments of any other state court. Superficially, a rent-a-judge differs from his public court colleagues in only one respect: the
source of his paycheck.
 Rent-a-judging has prompted worries about the propriety of privatized justice. Despite its touted efficiency, the rent-a-judge
system is marred by constitutional and policy concerns. Opponents have especially decried the creation of a two-tiered system of
justice—one for the wealthy and one for the poor.
 Rent-a-judge justice, though speedy, is also quite expensive. The most popular, and presumably the best, rent-a-judges command
$5,000.00 a day. Consequently, only the wealthiest litigants can afford a rent-a-judge—a result that is not only inequitable but
quite possibly unconstitutional under California law.
 About 25 years ago, the profession changed from value billings to timebased billings. Clients are now charged based on time
spent with little or no regard for success or efficiency. The result is that lawyers earn more money the more they do and the longer
it takes. This system clearly discourages settlements.
 Time-based billings have had the effect of increasing the cost of litigation, the length of trials, and exacerbated the problems of
delay. Accordingly, ADR, which theoretically promises less cost and less delay, appears very desirable.










Other reasons: less confidence in the larger district courts; plethora of advertising for ADR programs; more lawyers and less work
means ADR is viewed as a growth industry; mandatory pre-trials institutionalized thought that all cases should at least get to pretrial
The power to select one’s judge is the principal advantage of proceeding to adjudicative ADR. The parties can select a person in
whom they repose confidence.
The advantages of an adjudicator who is both well-suited to the task at hand and whose conduct of the proceedings will ensure
satisfaction of the principle that justice must not only be done, it must be seen to be done, cannot be overstated.
ADR adjudication can usually be arranged within a few months, even quicker if there is greater flexibility in the choice of
adjudicator.
The case will start on the day scheduled unlike in the court system. The additional cost and inconvenience of uncertain trial
commencement times is very high. The parties can tailor their own
A possible disadvantage is that one must pay the adjudicator. I consider the cost worthwhile even if it is not wholly offset by the
savings and fixed start times and finish times and greater overall efficiency.
A second and real disadvantage is in the area of appeals. If the adjudicative ADR is a reference under the Rules of Civil
Procedure, the problem is one of too many appeals. The loser is entitled to a motion to oppose confirmation, which is equivalent
to an appeal to a single judge. One concern that parties have with appeal rights where they have agreed to adjudicative ADR, is
the substantial delay in having an appeal heard in the Court of Appeal
Does not believe that the publicly funded civil justice system will disappear. A multi-tired system has always existed! Most
disputes are now also being diverted to admin tribunals where they have particular expertise for the problem
The rich/poor concern: It is no more expensive in my opinion, and probably overall cheaper to arbitrate or proceed to a reference
than to remain within the court system. Any client who can afford to litigate, can afford “rent-a-judge.” As well, the availability of
mediation (extended pre-trials) services at ADR Chambers produces settlements— in malpractice cases where most plaintiffs
could not afford to take their case through a trial, for example.
Another concern is if the ADR system becomes swamped: this will not be a problem unless we force parties to mediate as a
condition of obtaining a state paid oral trial. Universalized mandatory settlement initiatives do not work; you can only help parties
who want to settle, you cannot force settlements
Professor Frédéric Bachand’s overview of arbitration
Consensual arbitration is a dispute resolution process whereby the parties confer on one or more persons, the arbitrator(s), the power
to resolve a dispute by making a decision which -- in principle -- is final, binding and enforceable, just like a court judgment.
Think of arbitrators as private judges.
Consensual arbitration has to be distinguished from mediation - a dispute resolution process whereby the parties attempt to settle their
dispute with the help of an independent third party, the mediator.
The mediator's task is limited to helping the parties to resolve the dispute in an amicable manner; unlike a judge or an arbitrator, the
mediator does not have the power issue a final and binding decision.
All jurisdictions have adopted legislation based on a model law on international commercial arbitration prepared by the United
Nations Commission for International Trade Law (UNCITRAL). Statutes facilitating and encouraging resort to arbitration to resolve
domestic disputes have also been adopted by Canadian legislatures.
The court system usually fails to offer procedures that are well-suited to the resolution of commercial disputes: going to court takes
time; going to court is very costly; business operators resent the fact that they have little control over the applicable procedure; going
to court entails that the dispute will become public; the outcome of litigation is often quite unpredictable, especially in complex
commercial disputes.
In international disputes, there is the concern of forum shopping. The existence of such a choice increases uncertainty, as litigation can
be very different from one country to the other; it creates additional risks which raise the costs of doing business on an international
scale.
For arbitration to take place lawfully, a valid arbitration agreement must have been concluded in writing between the parties. The
effectiveness of the arbitration agreement depends on whether the dispute is one which is capable of being submitted to arbitration.
Not all disputes can be resolved by arbitration
The parties are free to agree on the number of arbitrators. In practice, the choice is most often between one or three arbitrators.
Arbitration with a sole arbitrator has the advantage of being cheaper; it also tends to be faster. Arbitration with three arbitrators has the
advantage of allowing each party to appoint one arbitrator, which tends to increase the parties' confidence in the arbitral tribunal.
Arbitrators enjoy an immunity which is similar to that afforded to judges; in other words, they cannot -- as a general rule -- be held
liable for their acts and omissions. Such immunity is necessary to guarantee the integrity of the process and to ensure that arbitrators
will be in a position to render a decision without fear of later being sued by the losing party.
Resorting to a competent and experienced dispute resolution institution will often increase the chances of the process running more
smoothly. But the services rendered by these institutions are not free; therefore, resorting to institutional arbitration increases the costs
of the process.
Furthermore, the parties' freedom to agree on the applicable procedural rules is not absolute. The law of the jurisdiction where
arbitration takes place always contains some public policy limitations to their freedom; these limitations are essentially aimed at
guaranteeing the parties' fundamental right to a fair hearing
Most jurisdictions -- including Quebec -- respect the finality of the arbitral process and prohibit appeals from awards.
judicial review is not entirely excluded. Such review is usually limited to essentially three things: i) ensuring that the arbitrators had
jurisdiction over the dispute; ii) ensuring that the procedure was conducted in accordance with the parties' agreement and the
requirements of fundamental procedural fairness (due process); and iii) ensuring that the award does not disregard rules of public
policy,
Finally, arbitrators do not have the same powers that judges have to compel witnesses or to issue injunctions during the proceedings
Me Azim Hussain, “Quebec Courts confirm the autonomy of arbitral procedure” 6 April 2010,
 Quebec courts have confirmed that parties cannot seek to have the courts intervene in order to review procedural decisions made
by an arbitrator.
 There are limited ground to intervene in arbitration cases; procedure is not one of them
 This affirms the main purpose of arbitration: expeditiousness in arriving at a definitive resolution of the parties’ dispute. To allow
court intervention in procedural decisions would render arbitration no different from proceedings before a court of first instance
with all the appeals and delays that come with it
C.5) The “crisis” in JICP and Civil Law Reform
Initiatives
Dominique Forget, « Une Justice for the happy few » 15 April 2011 L’actualité
 System only serves those who are involved in high stakes claims with a lot of money
 People with smaller claims are being discouraged to use the courts because the high costs associated with litigation
 This has resulted in a loss of confidence; the number of cases heard by the s.96 courts has dropped by 48%
 This is not because there are less conflicts; the rich monopolise the court system now
 There are now more and more cases of unrepresented litigants; this seems unfair when they go against major corporations
 Needed to improve the use of ‘plain english’ in judgments and procedural matters
 The more people understand what’s going on, the less they feel alientated, and the more they feel confident and understanding of
the justice system
 Promotion of ADR and mediation conferences help; Quebec encourage and pays for some of these sessions
 This reduces the cost, but it must be instituted much sooner before the parties have already dug in for litigation
 The billable-hour atmosphere does not help either; lawyers are pushed for hours, not results; they don’t promote these settlement
tools as much as they should
Patricia Lee Refo, “The Vanishing Trial” in The Journal of the Section of Litigation (American Bar Association) vol. 30
no. 2 Winter 2004
 In the states, federal court trials have plummeted; they hear less cases then they did in 1962; the percentage of federal civil cases
disposed of by trial has dropped from 12% to 2%
 On the criminal side, legislation imposes a substantial penalty on a defendant who chooses to exercise his right to trial; it has been
designed as a way to encourage/coerce defendants to enter a plea bargain; fewer people take the risk to go to trial
 In many jurisdictions, judges are evaluated based on their case disposition rates
 Trial lawyers are partly to blame as they have made the process of getting to trial longer and more expensive







Movement to a system where the court gives each side a fixed amount of time to present its case. The lawyer is free to allocate his
time as he thinks’ best
ADR also contributes to the declining rates; virtually every consumer contract now requires that a consumer waive her rights to
adjudicate any dispute in courts, and courts have enforced such arbitration clauses
The certainty of a known result drives litigants to compromise and settle rather than risk the unknown of a jury trial
Decline of trials = decline of jury service = loss of a very important democratic institution in society
ADR has the negative consequence of shielding the decision and proceedings from public view; also contributes nothing to the
common law as there is no jurisprudence or precedence set
Private arbitration is also pulling away highly qualified judges away from the bench to the much more lucrative position of
arbitrator; private judges have no protection of an independent judiciary and is therefore subject to pressures from which a judge
with life tenure is immune
Trials are useful! Trials can bring about catharsis and healing, educate and enlighten, can bring light of public scrutiny
The Honorable Warren K. Winkler, “The Vanishing Trial” 27 (Autumn 2008) The Advocates’ Society Journal No. 2,
3-5
 That cases are not being taken to trial is a tangible indication that public cannot or chooses not to gain access to the justice system
 Two reasons why trials are disappearing: 1) the system fails to meet the needs of ordinary persons who require a fair, timely and
affordable resolution to their legal conflict; 2) transfer of cases to other regimes, i.e. ADR
 Arbitrators are less formal, less convoluted and more straightforward to navigate
 Arbitrators offer more flexibility in timetabling, and are more sensitive to the parties’ scheduling needs
 Arbitrators have ‘areas of strength’ in relation to the subject matter in dispute
 Move away from trial has a negative impact on common law. Its strength is the evolution of societal values through the
development of jurisprudence; we have none of that in arbitration!
 With less trials, we need less trial lawyers; we are losing out a valuable resource needed in a free and democratic society
 Some improvements to the trial system: different avenues and streams that allow for decisions to be made on a real time basis, i.e.
The Toronto Commercial List
 S. 96 judges are also more diversified, coming from different backgrounds; different point of views is a strength to the legal
system
 Simplified Rules of Procedure and Plain English has helped a lot too!
 Proportionality must become THE key consideration in trial litigation; must design reform that furthers counsel’s ability to carry
out litigation in a manner proportionate to the monetary value, complexity and social impact
 Judges should use costs to reward parties who approach cases in ways that reflect the actual amounts in dispute and to sanction
those who needlessly, vexatiously or unreasonably complicate lawsuits
Lord Woolf’s Overview for Civil Legal System Reform
 A civil justice system must meet the following to ensure access to justice: It should:
a) be just in the results it delivers;
(b) be fair in the way it treats litigants;
(c) offer appropriate procedures at a reasonable cost;
(d) deal with cases with reasonable speed;
(e) be understandable to those who use it;
(f) be responsive to the needs of those who use it;
(g) provide as much certainty as the nature of particular cases allows; and
(h) be effective: adequately resourced and organised.
The current system is too expensive in that the costs often exceed the value of the claim; too slow in bringing cases to a conclusion
and too unequal: there is a lack of equality between the powerful, wealthy litigant and the under resourced litigant. It is too uncertain:
the difficulty of forecasting what litigation will cost and how long it will last induces the fear of the unknown; and it is
incomprehensible to many litigants. It is too fragmented in the way it is organised since there is no one with clear overall
responsibility for the administration of civil justice; and too adversarial as cases are run by the parties, not by the courts and the rules
of court, all too often, are ignored by the parties and not enforced by the court.
The courts should have the final responsibility for determining what procedures were suitable for each case; setting realistic
timetables; and ensuring that the procedures and timetables were complied with. Defended cases would be allocated to one of three
tracks:
(a) an expanded small claims jurisdiction with a financial limit of £3,000;
(b) a new fast track for straightforward cases up to £10,000, with strictly limited procedures, fixed timetables (20 30 weeks to trial)
and fixed costs; and
(c) a new multi track for cases above £10,000, providing individual hands on management by judicial teams for the heaviest cases, and
standard or tailor made directions where these are appropriate.
Litigation will be avoided wherever possible.
(a) People will be encouraged to start court proceedings to resolve disputes only as a last resort
(b) Information on sources of alternative dispute resolution (ADR) will be provided at all civil courts.
(c) Legal aid funding will be available for pre litigation resolution and ADR.
Litigation will be less adversarial and more co operative.
(a) There will be an expectation of openness and co operation between parties from the outset, supported by pre litigation protocols on
disclosure and experts.
(b) The court will encourage the use of ADR.
(c) The duty of experts to the court will be emphasised.
Litigation will be less complex.
(a). The rules will be simpler, and special rules for specific types of litigation will be reduced to a minimum.
(b) All proceedings will be commenced in the same way by a claim.
(c) The claim and defence will not be technical documents.
(d) the court on its own initiative will be able to dispose of individual issues or the litigation as a whole where there is no real prospect
of success.
(e) Claimants will be able to start proceedings in any court. It will be the court's responsibility to direct parties or to transfer the case,
if necessary, to the appropriate part of the system.
(f) Discovery will be controlled
(g) There will be special procedures, involving active judicial case management, to deal with multi party actions expeditiously and
fairly.
The timescale of litigation will be shorter and more certain.
(a) All cases will progress to trial in accordance with a timetable set and monitored by the court.
(e) The court will determine the length of the trial and what is to happen at the trial.
The cost of litigation will be more affordable, more predictable, and more proportionate to the value and complexity of individual
cases.
(a) There will be fixed costs for cases on the fast track.
(b) Estimates of costs for multi track cases will be published by the court
Parties of limited financial means will be able to conduct litigation on a more equal footing.
(a) Litigants who are not legally represented will be able to get more help from advice services and from the courts.
(b) Procedural judges will take account of the parties' financial circumstances in allocating cases to the fast track or to the small claims
jurisdiction.
(c) Limited procedures and tight timetables on the fast track, and judicial case management on the multi track, will make it more
difficult for wealthier parties to gain a tactical advantage over their opponents by additional expenditure.
There will be clear lines of judicial and administrative responsibility for the civil justice system.
The structure of the courts and the deployment of judges will be designed to meet the needs of litigants.
(a) Heavier and more complex civil cases will be concentrated at trial centres which have the resources needed, including specialist
judges, to ensure that the work is dealt with effectively.
Judges will be deployed effectively so that they can manage litigation in accordance with the new rules and protocols.
(b) Judges will be encouraged to specialise
The civil justice system will be responsive to the needs of litigants.
(a) Courts will provide advice and assistance to litigants through court based or duty advice and assistance schemes, especially in
courts with substantial levels of debt and housing work.
The reforms of civil procedure which I am proposing will be more effective if:
(a) legal aid funding is available for pre litigation resolution and (b) public funding is available for in court advice services, especially
on housing issues;
(c) legal aid is available for solicitors and barristers providing 'unbundled' legal services to parties conducting their own cases on the
fast track;
(e) the legal aid reforms recognise the importance of ensuring the survival of efficient small firms of solicitors, particularly in remote
areas.