JUDICIAL INSTITUTIONS AND CIVIL PROCEDURE
PROC 124 Winter 2015
Professor Rosalie Jukier
Marika Giles Samson (DCL Teaching Fellow)
COURSE SUMMARY
Contents
Introduction .................................................................................................................................................. 7
Class 2: Overview of JICP, Purposes and Reform of Civil Procedure 1 ......................................................... 8
‘On the nature and purposes of civil procedural law’ – Jolowicz ........................................................... 11
J. Lachapelle et al, “Le monde judiciaire malade de sa justice” (Le Devoir, 27 mars 2008) and “Des
solutions pour la justice civile” (Le Devoir, 28 mars 2008) ..................................................................... 12
R. McMurtry, “We Are Not All Equal Before Law the Law” (2005)......................................................... 13
Jukier, “The Influence of Legal Traditions on Civil Procedure”, (2015) Canadian Bar Review
(forthcoming) .......................................................................................................................................... 14
Purpose and Reform of Civil Procedure 2: Expense of Litigation and Access to Justice,............................ 14
Class notes .............................................................................................................................................. 14
Access to Justice by Lord Woolf .............................................................................................................. 17
Hryniak v Mauldin, 2014 SCC7 ................................................................................................................ 19
Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59
(excerpt) .................................................................................................................................................. 20
British Columbia (AG) v Christie, 2007 SCC 21 ........................................................................................ 20
Corbeil v Gatineau (Ville de), 2009 QCCQ 10 .......................................................................................... 21
Legislation/Rules/Regulations ................................................................................................................ 23
Alternatives to Civil Justice ......................................................................................................................... 23
Class 4, Class notes (from Alison),........................................................................................................... 23
Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35 ................................................................. 26
Louise Otis & Eric H. Reiter, “Mediation by Judges: A New Phenomenon in the Transformation of
Justice”, (2006) 6(3) Pepperdine Dispute Resolution L.J. 351-403 .......................................................... 27
Leonard L. Riskin et al, “What Process is Appropriate: the Great Debate over Settlement and ADR”,
Chapter I.C of Dispute Resolution and Lawyers, Fifth Edition (St. Paul, MN: West Publishing, 2014), at
14-25. ...................................................................................................................................................... 32
Legislation/Conventions/Rules ............................................................................................................... 32
Publicity of Judicial Proceedings, Class 5, Jan. 20 ....................................................................................... 32
Dagenais v. Canadian Broadcasting Corp., [1994] 3 SCR 835 ................................................................. 35
Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC ................................................. 36
1
Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 ..................................................... 37
J.L. v. A.N., 2007 QCCS 3226 ................................................................................................................... 38
‘Super-Injunction, what’s your function?’ – Holly Hall (for discussion).................................................. 39
Legislation/Principles/Rules .................................................................................................................... 41
The Court System and Subject-Matter Jurisdiction, class 6, Jan 22............................................................ 41
Department of Justice, Canada’s Court System (Ottawa: Communications Branch-Department of
Justice Canada, 2005) ............................................................................................................................. 45
MacMillan Bloedel Ltd. v. Simpson, [1995] 4 SCR 725............................................................................ 46
R. v. Zolotow (2008), 89 OR (39) 321 ...................................................................................................... 48
Quebec North Shore Paper v. C.P. Ltd., [1977] 2 SCR 1054 (headnote) ................................................. 48
Legislation ............................................................................................................................................... 49
Appellate Courts and their Jurisdiction, Class 7.......................................................................................... 49
Yves-Marie Morissette, « Aspects historiques et analytiques de l’appel en matière civile », (2014)
59(3) McGill LJ 481 (excerpt) .................................................................................................................. 52
Housen v. Nikolaisen, 2002 SCC 33 (excerpt) .......................................................................................... 53
Paul J. Pape & John J. Adair, “Unreasonable Review: The Losing Party and the Palpable and Overriding
Error Standard”, (2008) 27(2) Advocates’ J. 6 ........................................................................................ 54
Legislation/Principles/Rules .................................................................................................................... 55
Judicial Appointment and Independence, class 8 ....................................................................................... 55
Class notes: ............................................................................................................................................. 55
Bastarache Commission, Executive Summary, (excerpt, §4.1-4.2.1) ...................................................... 59
Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21 9 (excerpt) ................................................. 59
J.A. Lanzinger, “A Personal Reflection on Judicial Elections”, (Summer 1998) The Provincial Judges
Journal 13-20 .......................................................................................................................................... 61
R. Posner, How Judges Think (Cambridge: Harvard University Press, 2008) (excerpt) .......................... 61
Reference re Remuneration of Judges of the Provincial Court (PEI), [1997] 3 SCR 3 (excerpt) ............. 62
Legislation/Conventions/Principles, etc. ................................................................................................ 65
Judicial Impartiality ..................................................................................................................................... 66
Class notes: ............................................................................................................................................. 66
Wewaykum Indian Band v. Canada, 2003 SCC 45 (excerpt) ................................................................... 68
Wightman c. Widdrington (Succession de), 2007 QCCA 1687, J.E. 2008-84 .......................................... 69
R. v. S.(R.D.), [1997] 3 SCR 484 (headnote)............................................................................................. 72
Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 (excerpt) ................ 73
Legislation/Conventions/Principles, etc. ................................................................................................ 74
Judicial Ethics and Accountability ............................................................................................................... 75
Therrien (Re), 2001 SCC 35 ...................................................................................................................... 77
2
Website: Canadian Judicial Council (www.cjc-ccm.gc.ca/), especially portions related to the
complaints procedure ............................................................................................................................. 79
Canadian Judicial Council, Report to the Minister of Justice in the matter of the Honourable Paul
Cosgrove (Ottawa, 30 March 2009) ........................................................................................................ 79
Carmen Hamilton, “Reasonable Doubt: Why we should care about Stephen Harper criticizing Beverley
McLachlin” (Straight.com, 23 May 2014) ............................................................................................... 81
Overview of Pre-Trial Procedure in Quebec ............................................................................................... 82
Class notes: ............................................................................................................................................. 82
Arguin v. Nault, 2007 QCCS 1767 ............................................................................................................ 85
Overview of Pre-Trial Procedure in Ontario ............................................................................................... 85
Pleadings and Service.................................................................................................................................. 85
Class notes: ............................................................................................................................................. 85
Statement of Claim ................................................................................................................................. 89
Beals v. Saldanha, 2003 SCC 72 (excerpt) ............................................................................................... 89
Scott Dodson, “Comparative Convergences in Pleading Standards” (2010) 158 University of
Pennsylvania Law Review 441 ................................................................................................................ 92
Service ..................................................................................................................................................... 95
9026-8863 Québec Inc. v. Best Buy Canada Ltd, 2006 QCCS 6528 (C.S.) and 2007 QCCA 936 (C.A.) ..... 95
E.N. c. J.M., 2011 QCCS 3120 .................................................................................................................. 96
Legislation/Principles/Rules .................................................................................................................... 96
Jurisdiction, Choice of Forum Clauses, and Enforcement of Foreign Judgments ....................................... 97
Class notes: ............................................................................................................................................. 97
Geographic Jurisdiction......................................................................................................................... 101
Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (excerpt) ........................................................................ 101
Choice of Forum Clauses ....................................................................................................................... 103
Z.I. Pompey Industrie v. ECU Line NV, 2003 SCC 27 (esp paras 19-21, 39-40) ...................................... 103
GreCon Dimter Inc. v. J. R. Normand Inc., 2005 SCC 46 (excerpt) ........................................................ 104
Carnival Cruise Lines, Inc. v. Shute, (1990) 499 U.S. 585 ...................................................................... 105
Enforcement of Foreign Judgments ...................................................................................................... 106
Beals v. Saldanha, 2003 SCC 72 (excerpt) ............................................................................................. 106
Legislation/Conventions/Principles, etc. .............................................................................................. 107
Standing, Feb. 24....................................................................................................................................... 107
Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 (excerpt) ................................................ 109
Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012
SCC 45 (excerpt) .................................................................................................................................... 111
Alliance for Marriage and Family v. A.A., 3 [2007] SCR 124 ................................................................. 112
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For Discussion ....................................................................................................................................... 112
Canadian Bar Association v. British Columbia, 2006 BCSC 1342 and 2008 BCCA 92 (excerpts)........... 112
Legislation/Rules ................................................................................................................................... 114
Abuse of Access to Courts, Feb. 26, class 16 ............................................................................................ 114
Class notes: ........................................................................................................................................... 114
Vexatious litigants & SLAPPs ................................................................................................................. 118
Productions Pixcom Inc. v. Fabrikant, 2005 QCCA 703 ......................................................................... 118
Acadia Subaru c. Michaud, 2011 QCCA 1037 ....................................................................................... 119
Les poursuites stratégiques contre la mobilisation publique : les poursuites-bâillons (SLAPP)
(Gouvernement du Québec, 2007) (excerpt) ....................................................................................... 122
J. Brown, ‟Anti-SLAPP legislation reintroduced in Ontario”, Canadian Lawyer (online : December 8,
2014) ..................................................................................................................................................... 124
Legislation/Rules ................................................................................................................................... 124
Parties to an Action – Mar 10, class 17 ..................................................................................................... 124
Proper/ Necessary Parties .................................................................................................................... 125
Saint-Martin v. Fédération des enseignants des écoles juives, [2002] J.Q. no 1054 (CS) .................... 125
School of Dance (Ottawa) Pre-Professional Programme Inc. v. Crichton Cultural Community Centre,
[2006] O.J. No. 5224 (Ont. SCJ) ............................................................................................................. 126
Beardon v. Lee, [2005] O.J. No. 1834 (Ont. SCJ) ................................................................................... 126
Third Party Claims ................................................................................................................................. 127
Kingsway General Insurance Co. v. Duvernay Plomberie et Chauffage, 2009 QCCA 926..................... 127
Wilson Cartage Ltd. v. Carlisle, 2011 ONSC 1154.................................................................................. 128
Legislation/ Principles/Rules ................................................................................................................. 129
Protective Measures (I): Interlocutory Injunctions, Freezing Orders, Protection of Evidence, Mar 12 & 16
.................................................................................................................................................................. 130
Class notes: ........................................................................................................................................... 130
Interlocutory Injunction ........................................................................................................................ 132
RJR MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (excerpt) ............................... 132
Freezing Orders ..................................................................................................................................... 133
Tracy v. Instaloans Financial Solutions Centres (B.C.) Ltd., 2007 BCCA 481 ......................................... 135
Opera on Original Site c. China Performing Art Agency, 2005 Q.J. 8174 (CS) ...................................... 136
Greater Vancouver Sewerage and Drainage District v. Canadian National Railway Co., 2012 BCSC 1929
.............................................................................................................................................................. 137
Protection of Evidence .......................................................................................................................... 141
Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36 ......................................................... 141
Legislation/Principles/Rules .................................................................................................................. 144
4
Disclosure and Discovery, class 20 ............................................................................................................ 144
Class notes: ........................................................................................................................................... 144
Ben v. Gates, 2013 ONSC 5814 ............................................................................................................. 149
G.C. Hazard Jr., “Discovery and the Role of the Judge in Civil Law Jurisdictions” (1997-1998) 73 Notre
Dame L. Rev. 1017................................................................................................................................. 150
Lac d'Amiante du Québec Ltée v. 2858-0702 Québec Inc., 2001 SCC 51 ............................................. 151
Juman v. Doucette, 2008 SCC 8 ............................................................................................................ 153
The Sedona Conference Working Group 7, “At a Glance” (at iv) and “Introduction” (at 1-8), The
Sedona Canada Principles – Addressing Electronic Discovery (January 2008)...................................... 154
Legislation/Rules ................................................................................................................................... 156
Summary proceedings, class 21 ................................................................................................................ 156
Class notes ............................................................................................................................................ 156
R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 (excerpt) ................................................................. 158
Motion to Dismiss ................................................................................................................................. 159
Canada (Procureur général) c. Imperial Tobacco Ltd., 2012 QCCA 2034 (excerpt) .............................. 159
Canada (Attorney General) v. Confédération des syndicats nationaux, 2014 SCC 49 (headnote) ....... 160
Summary Judgment .............................................................................................................................. 161
Hryniak v. Mauldin, 2014 SCC 7 (excerpt)............................................................................................. 162
Simplified Proceedings/Summary Trials ............................................................................................... 163
Inspiration Management Ltd. v. McDermid St. Lawrence Ltd., (1989) 36 B.C.L.R. (2d) 202 (CA)......... 164
Homologation ....................................................................................................................................... 165
S.H. c. S.T.L. et al, 2008 QCCS 2853....................................................................................................... 165
Legislation/Rules ................................................................................................................................... 167
Costs (1) – General Policy, class 22 ........................................................................................................... 167
Costs ...................................................................................................................................................... 167
Australian Law Reform Commission, “Costs Shifting — who pays for litigation”, (ALRC Report 75,
October 1995) (excerpt)........................................................................................................................ 171
Walker v. Ritchie, 2006 SCC 45 (excerpt) .............................................................................................. 172
Elevated/Special Costs .......................................................................................................................... 173
Royal Lepage Inc. v. 109650 Canada Ltd., 2007 QCCA 915 ................................................................... 173
Davies v. Clarington (Municipality), 2009 ONCA 722............................................................................ 173
SLAPPs ................................................................................................................................................... 175
Industries Lassonde inc. v. Oasis d'Olivia inc. 2010 QCCS 3901 (excerpt) ............................................ 175
Offers to Settle ...................................................................................................................................... 176
Kalish v. Rosenbaum, 2010 ONSC 3189 ................................................................................................ 176
J.D. v. Chandra, 2014 BCSC 1272 .......................................................................................................... 177
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Legislation/Principles/Rules .................................................................................................................. 178
For Discussion ....................................................................................................................................... 178
McKinnon v. Polisuk, 2009 QCCS 5778 (esp. para. 11ff) ....................................................................... 178
Costs II - Exceptional Costs Orders, class 23 ............................................................................................ 180
Class notes: ........................................................................................................................................... 180
Public Interest Costs.............................................................................................................................. 184
British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 ................................... 184
Chris Tollefson, “Costs in Public Interest Litigation Revisited”, (2011) 39 The Advocates’ Quarterly 197
.............................................................................................................................................................. 186
Hétu v. Notre-Dame-de-Lourdes (Municipalité de), 2005 QCCA 199 ................................................... 187
Carter v AG (Canada)............................................................................................................................. 188
Security for Costs .................................................................................................................................. 189
Sprinkles Cupcakes Inc. v Dlish Cupcakes Inc., 2013 ONSC 866............................................................ 189
Costs Against Solicitor Personally ......................................................................................................... 190
Beardy v. Canada (Attorney General), [2003] O.J. No. 3940 (SCJ) – please skim background (paras 250) ......................................................................................................................................................... 190
Legislation/Principles/Rules .................................................................................................................. 190
Class 24, Class Actions I............................................................................................................................. 191
Class notes ............................................................................................................................................ 191
Hollick v. Toronto (City), 2001 SCC 68 (excerpt) ................................................................................... 196
Vivendi Canada Inc. v. Dell’Aniello, 2014 SCC 1 (excerpt) .................................................................... 197
Bank of Montréal v. Marcotte, 2014 SCC 55 (headnote)...................................................................... 198
Legislation/Rules ................................................................................................................................... 198
Class 25, Class Actions II............................................................................................................................ 198
April 9, 2015, class 25 ............................................................................................................................... 204
LAST CLASS!!!! ....................................................................................................................................... 204
Landry v. Syndicat du transport de Montréal (Employés des services d'entretien) CSN, 2006 QCCS
1623 ...................................................................................................................................................... 207
Kerr v. Danier Leather Inc., 2007 SCC 44 .............................................................................................. 208
William McNamara, “Multi-Jurisdictional Class Actions in Canada” in Barreau du Québec - Service de
la formation continue, Développements récents en recours collectifs, vol. 312, (Cowansville, QC: Yvon
Blais, 2009) ............................................................................................................................................ 209
6
Introduction

This course is about institutions of civil justice provided by the state. NOT criminal law,
administrative law, or ADR.
 It has two big components: Judicial Institutions AND Civil Procedure
o JI: Structure of court system, levels, differences, types, where do you sue, judicial
appointments, ethics, independence, accountability,
o CP: the life of a case from its inception until trial: pleadings, standing, disclosure,
discovery, parties, provisional protection measures
Why JICP is important:
 Dynamic (both on judicial and legislative fronts)
o Lots of recent SCC decisions
o Legislation always changing
 New CCP. Was already a huge revision in 2002. (all decimal points are from 2002
reform).
 2006 big report on how 2002 reforms did.
 Reflects and/or impacts legal culture and basic values of society
o Principles of impartiality and independence, abuse of process, reasons
o Boring stuff comes up in really important fact scenarios
 Eg. Fact vs Notice pleading: Ashcroft v ?? US case. Post Sept 11 detainee – all
about sufficiency of pleadings
 Alliance for Marriage and Family case. Org sought standing to appeal ONCA
decision allowing a child to have three registered parents on birth certificate.
Major changes
 Exponential rise in self-represented litigants
o 37% at QCSC in civil matters
o Cost of litigation very high
 Taxpayer cost (every day of trial costs $10,000 to taxpayer)
 Cost to parties – court costs, lawyers costs. Oct 2013 statistic: from Roadmap for
Change report (Cromwell). Average cost of 7-day trial to litigant is $38-125,000.
PLUS pre-trial period.
o Lots of people choose to self-rep because of low opinion of lawyers
o Implications: cdn judicial council has put out a report on self-reps and has mandated the
creation of courses for judges to learn to deal with self-reps
 Judges can’t be as passive. Procedure can’t be as complicated. Vocabulary in
court has to be different.
 Judges have to be a lot more careful about the appearance of bias.
 Increase in ADR and JDR
o 30 years ago, no such thing as ADR
o Two impacts: 1. State has mandated judges to be mediators and conciliators! 2002 CCP
reform. QC judges made to be conciliators – CRA. Parties can stop their case and say “I
want to try judicial mediation” and it’s free.
o 2. It has affected legislation. Arts 1-7 of new CCP is ALL about ADR. Say parties MUST
consider ADR before going to court. Ontario has mandatory mediation. With a BIG stick
re costs.
 Explosion of class actions. QC was first province to adopt in 1978. Funny because CA is totally a
common law thing. Ontario adopted in 1992.
 Rise in the use of technology in the courts.
7
o
o
CCP 133-134
Open court principle. Means two things. 1. Anyone can walk into any courtroom any
time. 2. Anybody can have access to a decided case involving parties
 Widespread reforms in civil procedure
o This happening all over. Like, you are part of worldwide project!
o Lord Woolf. 1999. Woolf report in England – lecture 3.
Movie about SA constitutional court
 Think about the things that strike you and what it says about the process of justice
 Symbolism of building
“A tour of the constitutional court of South Africa”
 Transparency
 Inclusivity
 Access
 Cowhides – tension between impartiality and judges as their own people
 Eye level=
Class 2: Overview of JICP, Purposes and Reform of Civil
Procedure 1
Class Notes, January 8
 Judicial institutions = the procedural hardware, and the procedural law is the procedural software
 Distinguish the hardware and the software, But also distinguish procedural law from substantive law
 Jolowicz piece: procedural law is the handmaid, not the mistress
o What does that mean?
o Procedural law as the adjective and not the noun
o Definitely implies a hierarchy, with handmaid lower = 1. Some sort of hierarchy
o Notion of service. Procedural law is merely the helper. The enabler.
o “procedural law provides the means whereby decisions on substantive law are obtained”
 This has important consequences
 CPP has been recodified four times 1866, 1897, 1965, 2013. The code we are using
today dates from 1965. One of the big changes in 1965 was the insertion of art 2.
Art 2 codifies this notion of procedural law as handmaid, enabler
 Is this a good message?
 Bad: If you can always fix it, that might cause delays, abuse
 Bad: Devalues, makes it seem optional. Maybe it is optional
 Good: the real purpose of art 2: the codifiers felt that procedural law had
become too formalistic and they wanted to lessen the formalism
 Ontario rules have something similar: Rule 2
 Prof Zuckerman, Oxford: one of the first academics to get into CP. It has only recently become
an academic discourse. Gave a guest lecture 5 years ago. He says that the idea that judges can
always excuse an error of civil procedure is the death knell of the civil justice system. That this
becomes a mismanagement of a public system.
o Who gets blamed for the problems? Lawyers!
o Who else can we blame? We can blame the adversarial system
o We can blame the rules we have
o We can blame lawyers for abusing the system and the litigation strategy they undertake
8
o
Some, (a very few, including Zuckerman) blame judges. He says judges can’t bear to
decide cases purely on procedural grounds.
 We will see a case when we talk about service, a case about Best Buy. Best Buy
was served and employee didn’t follow corporate procedure, instead put it in a
drawer. Best Buy was served again, and again did nothing. Generally, if you
don’t respond, you lose by default. So BB lost by default. And then tried to go to
court to undo default judgement. Judge says: sorry, rules are clear. CA says: eek,
there is a substantive defence here, this should be tried. Zuckerman says its
these kinds of decisions that actually is an improper management of procedure.
 Z says: you can have the very best case on the merits, but if that judgement
doesn’t come in a timely manner, what good is it to you, really?
Where do we go to look for procedural law?
 Code of Civil Procedure, The Rules
 Ali (American Law Institute)/Unidroit
 What do we know about instruments like unidroit? =soft law. What is soft law? Not law in the
sense that they are legislated by a legislature, and a court is not bound by them. How can they
be used?
o 1. As a model of law reform
o 2. A court can make reference to them as an indication of a generally accepted standard
o 3. Parties can, in their instruments like a contract,
o Note: conflict of laws: a court can apply laws from another jurisdiction in order to
resolve a dispute. But laws of procedure follow the jurisdiction of the court (the law of
the forum)
o There are movements towards transnational civil procedure. Anytime you try to
unify/harmonize rules, often the jurisdictions trying to do that belong to different legal
traditions.
Influence of legal traditions on civil procedure
 Readings: only first 7 p of her article
 What sort of procedural system do we feel comfortable with in NA? Adversarial system.
 What do we contrast adversarial system with? Inquisitorial.
 Some prefer different terminology. Investigative instead of inquisitorial. A judge-centred system
(Glenn’s term).
 QC started with an inherited judge-centred system.
 What are the things we think of when we think of adversarial system?
o Party-driven
 Different perception of role of judge in continental systems
o Judge is not meant to be passive umpire, sitting waiting for parties to give information.
Judge is director of the play. Interesting metaphors from Jukier piece.
o Civilian judge is in control of the case. Creates the file to be decided. Judge has primary
responsibility for the development of the evidence. The clearest example of this: the
role of experts. In the adversarial system, everything is a battle between the parties.
Who brings forth the better expert witnesses? Medical responsibility, often tort law,
these depend on expert witnesses. In France, judge appoints expert. Usually just one.
There is a list of court-approved expert witnesses. Judges can examine witnesses, decide
issues
o Important ramifications leading to very different conceptions of rules of civil procedure
o Very different conception of evidence and of truth
9
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Written forms of evidence, rather than oral pleadings. Judge convenes a witness to
come to chambers, asks questions, and reduces testimony to writing, writing goes in
file.
Different conception of truth. Is the role of adversarial judge to find truth? No. Just 51%.
Lord Wilberforce in 1983: “there is no higher or independent duty to ascertain some
independent truth. If the decision is in accordance with the available evidence and the
law, judge will have been fairly done”
 what is prioritized instead of truth? Procedural fairness.
 If parties have been given fair amount of time to make arguments, then justice
is seen as being done.
In French system, there is a conception of an objective truth, “une vraie verité”
Most controversial thing in new CPP: default positon is that there will be ONE, common
expert, and that the judge will have ability to impose a single expert on the parties.
Mission of the expert is to inform the court, not to answer to the parties. Default=one
common expert, and you have to convince judge why you need another
French system has a very different appeal system
Here: appeals. We can’t appeal everything. Usually just questions of law. In France the
whole thing can be appealed.
Here: sometimes you have to apply to appeal, and sometimes you have an automatic
appeal right. In France, second step of appeal is automatic.
Trivia question: how many cases does the cour de cassation in France hear in a year?
28,000. An astonishing figure to us. Our SCC hears around 75 per year. Last year they
heard 75 and rendered 45 judgements.
Different conceptions of judges: in Canada, judges come from former lawyers. Have to
be member of bar for 10 years. Usually judges are appointed (though in US they are
elected). In France, you go to judge school.
Here: first thing you seen in a judgement is name of the judge. Personalized
judgements. At appellate courts, there can be dissents. Here: judgements are very long
(clerks are blamed for that), and very discursive. They tell all, they tell a story. French
judgements very short.
We’re so used to our system of procedure. One of the things that comes with our
system is the thing we are studying in this course: the pre-trial period. No such thing in
France.
No discovery in French system.
Note that it is not the same across different systems within each tradition. UK and USA
very different, for eg.
QC: where does it fit in?
Values of a Civil Justice System
 Transparent, accessible, equal treatment, efficient
o Just/fair/equal
o Impartial/accountable/open/transparent=trustworthy
o Accessible: financial obstacles, cultural obstacles
o Efficient
 For the first two, we’re not doing too badly. But the last two: problems.
 There is no lack of reports written on civil procedure. But always the same problems. In every
single report for the past 20 years.
Problems with the Civil Justice System
10
 1. Cost. Cost to taxpayer and cost to party. A day in court costs $10,000 to taxpayer.
 2. Time. Delays.
 3. Complexity. Especially for self-reps (37% of litigants in QC)
Reforms
 Speed up civil justice
 Render it more accessible to ordinary people
 Simplify language of civil procedure
 Promote swift settlement
 Make litigation more efficient and less costly, and avoid excessive and disproportionate resort to
procedural device
Implementation of solutions
 This is the tricky question
 Some people have blamed the adversarial system.
 World justice index – ranks different countries in order of their civil justice. Top ten: many
civilian. So maybe the system is part of the problem.
 Case management system
 First thing to do: give judges more control. We call this case management by judges. Number
one move in Canada is to give judges powers over case management. Current code brought in
idea of case management in 2002, art…..
o Art 9 para 2 of new code, talks about mission of court. Includes ensuring proper case
management. Art 19 – moves from mission to a duty.
 Encourage settlement. Next thing we are going to do. First 7 arts of new CCP
o Art 9 para 2: mission also includes facilitating conciliation.
o Preliminary provision. Talks about this code being designed to provide accessibility
 Proportionality. Art. 4.2 of existing code. New code: preliminary provision, art 18 para 1&2.
Judges MUST observe principle of proportionality in managing proceedings. Parties’ actions,
pleadings, choice of oral or written defence, means of proof.
 This is the thrust worldwide, though implemented differently in different jurisdictions.
‘On the nature and purposes of civil procedural law’ – Jolowicz

The doctrine asks that we recognize ‘the importance of procedure as the means through
which proceedings are brought before the courts, and the law thereby determined’ (60)
 Sir Jack Jacob said that substantive law is primary but procedural law is supreme – procedure
secures the rule of law because law is applied in the courts, regulated by procedure. It is the
means through which proceedings are brought before the courts and the law is thereby
determined
 Though settling outside of court may be more advantageous to the parties, a settlement is
more difficult to achieve where the law or its application in the circumstances is unclear: we
need a sufficient flow of judicial decisions that are adequately reported, this is essential if
most cases will not see a trial.
Procedural law: the law which governs the conduct of proceedings before the court, as well as
governs our procedural rights (the right to discovery, right to appeal, and right to invoke the
jurisdiction of the court). * A person always has the right to invoke the jurisdiction of the court
because the issue of originating process is not a judicial act, but his own.
Action & Invoking Jurisdiction
Action: civil proceedings commenced by writ or in any other manner prescribed by rules of court
11

It is not only in the application for judicial review that the right to invoke the jurisdiction is not
unfettered. There are three possibilities once a party has taken the first step in initiating
ordinary civil proceedings:
 The pleading can be struck out (the court will not consider the substance of the allegations)
 The proceedings run their course and end in a judgment for the plaintiff, giving him an action
and a substantive right
 Proceedings run their course but end in judgment against the plaintiff, he then has no
substantive right
Substantive v Procedural Law
 Subjection to substantive law is involuntary; subjection to civil procedural law is voluntary
o The initiation of proceedings remains voluntary – no one has to be subjected to it. Ex:
someone is not obliged to petition for divorce merely because grounds for divorce
exist
o Substantive law is different: even if subjection to some parts of substantive law
follows a voluntary act (ex: getting married), subjection to substantive law in general
derives from the fact of being born and living in society. To live in a society we must
obey its laws
 Substantive law is self-executing (produces its results of its own force without more), while
procedural law is not self-executing
o Ex: the legal consequences of an act/event occur pursuant to that event (ex. we are
held liable because we acted negligently
o The rules of procedure usually do little more than create a sequence of choices  the
choice is then left to the parties. A party can choose to bring an action or not, and if
the action is brought, the choice then rests with the judge
The Purpose of Procedural Law
 Primary purpose: Dispute resolution. Procedural law is supposed to provide institutions and rules
best fitted to the fair, economical, and expeditious adjudication of disputes submitted to the
courts
 Two secondary purposes:
1. To demonstrate the effectiveness of the law: civil action is civilization’s substitute for
vengeance and injustice; we supplant self-obtained justice with justice entrusted to authorities
and ensure that those who cannot afford to finance their own litigation receive help (legal aid)
N.B. most cases are disposed of without trial  effectiveness of law in society may have more to
do with society’s understanding of what courts do than anything else. This understanding
depends on the messages that come from the court
o Maintenance of the balance between access to justice and over-access to justice
2. Interpretation, clarification, development, and application of the law by judges
o Courts cannot meet their responsibility to the law unless the question of law at issue
is well-defined, well-researched, and well presented, and judges have the opportunity
to pronounce on questions of law of general interest and importance
o Procedural law should ease the tension between courts’ dispute-resolving role and lawmaking role (and ease the performance of the latter at the appellate level)
J. Lachapelle et al, “Le monde judiciaire malade de sa justice” (Le Devoir, 27 mars 2008)
and “Des solutions pour la justice civile” (Le Devoir, 28 mars 2008)

“le monde judiciare est malade”
12

Not as many cases are being heard. Cases are taking more time (many more than three days,
or weeks)
 The public no longer believes in tribunals, including those who have experience with them
 More than 80% of people think they could not afford to bring a case to court. Lawyers costs,
and charging by the hour. Lawyers setting their own rates, costs of justice being set by the
market.
 Most cases cost at least $35,000.
 People also don’t feel capable of representing themselves – “la mystification des justiciables”.
Most people claim to have no idea what is going on in court rooms (61%), or how to read the
law (79%). They feel like going to court means they lose control over what is happening (61%).
 This is because we keep people remarkably ignorant of judicial matters. “Nul n’est censé
ignorer la loi, mais qui peut raisonnablement pretendre la connaitre?”
 There is nowhere in school or in the media for people to learn about the law.
 Add to this problem the fact that the judicial system is pretty complex, especially with
separate courts for separate issues like family court and administrative tribunals.
 One of the problems is the fact that the judge is only involved very late in the process,
months or even years after the dispute arose. This results in costs of proceedings exceeding
the cost of the original dispute.
 Yet practitioners are opposed to the idea of clients being masters of their own files.
 Another issue is the lack of reliable information about the efficiency of the judicial system. We
study education, health care, and social services, but not the judicial system, what is up with
that?
This lack of reliable information in some ways shelters “the fortress of the judiciary” from criticism,
since no one knows what is really going on, and therefore what is really wrong with the system
R. McMurtry, “We Are Not All Equal Before Law the Law” (2005)
The high cost of civil litigation is denying justice to many, says Ontario’s Chief Justice
 Respect for the rule of law is fundamental to a democratic and just society; it ensures
that we are all entitled to equal treatment by the law. The dictates of expediency must
not overcome our collective allegiance to the law and respect for rights.
 Access to justice, meaning the challenge of assuring legal representation and access to
the courts for the less affluent, is a major concern related to the administration of
justice.
 These concerns are not limited to the very poor – the high cost of civil litigation is
increasingly preventing all but the very affluent from trial.
 The “disappearing civil trial” phenomenon means that highly experienced civil litigation
counsel may become an endangered species.
 There is an increase in unrepresented litigants in both criminal and civil trials
 A just society enables each of its members to have access to the kind of legal assistance
essential for the understanding and assertion of their individual rights. Those who can’t
assert their legal rights and obtain remedies are not truly free.
 Government must ensure adequately funded legal aid. As attorney general, McMurty
prioritized the expansion of legal aid, in particular of community based legal clinics.
 Law firms must recognize pro bono work as part of their mainstream practice, rather
that just on an ad hoc basis.
13

Lawyers are given a major public trust and therefore have special obligations to their
communities. As publicly-funded legal aid plans will never have sufficient resources, a
commitment to pro bono must be regarded as a core professional value. A profession
committed to justice must make justice more accessible.
Jukier, “The Influence of Legal Traditions on Civil Procedure”, (2015) Canadian Bar Review
(forthcoming)
Not done
Explanatory Notes and Preliminary Provision, Bill 28 (2014, c. 1): An Act to establish the new Code of
Civil Procedure
Legislation/Principles/Rules
ALI / UNIDROIT Principles of Transnational Civil Procedure
Purpose and Reform of Civil Procedure 2: Expense of
Litigation and Access to Justice,
Class 3, January 13, 2014
Class notes
Famous Lord Woolf Report: Three big problems, it costs too much, it takes too long, and it’s too
complicated
Costs
 When you see in a case “the whole, with costs throughout” what does that mean? (We will have
a whole section on costs)
 Should one party bear the costs? Or should they each pay their own?
o That’s not what we are talking about now. We will talk about that later
 The other type of cost is “the cost of justice”. Not who has to pay for it, but what are the costs.
 While the cost of civil justice is seen as the main issue regarding accessibility, cost is linked to
delay and complexity
 Costs are not just financial. Costs a lot of time, lot of lost opportunity costs, tremendous
emotional costs
 Different components of costs (judicial and extra-judicial).
o Hardware (buildings, judges, other staff) – about 2000 judges in Canada. These costs are
born by the taxpayer
o Judicial costs=associated with judicial infrastructure: court filing fees, hearing fees (if
there are some), stenographer fees, service fees. These can be important (see BC Trial
Lawyers case), but usually they are not the bulk of the fees
o Extra-judicial costs: legal fees. Self-reps don’t pay these. Expert fees would be here too.
These are usually the real impediment to access to justice.
Access to Justice
 Interesting where we see reference to this. Used to be in academic articles and reports. Never
used to hear these words from judiciary itself, in decisions. In this way it is startling
 “greatest challenge to the rule of law in Canada today” (Hryniak, para 1)
 “access to the courts is essential to the rule of law” (BC Trial Lawyers)
 These are statements by the SCC in 2014
 Are these statements helpful? Consistent?
14


AGBC v Christie, 2007 SCC, (no constitutional right to legal services)
o Constitutional limitations vs “greatest challenge to the rule of law”
o We would find constitutional protection in s 7
o Issue in Christie is a provincial tax on legal services making legal services more
expensive. Court says we don’t have a constitutional tool to deal with this
o Some people interpreted this as a blow to access to justice
o What does Christie really stand for? Can we distinguish it from other cases or is there a
new trend?
Trial lawyers Association of BC v AG BC (hearing fees imposed by province may be
unconstitutional if they are such as to deny people access to the courts)
o Outside the sphere of extra-judicial fees.
o How do we usually declare things unconstitutional? One way is via the Charter. Another
is ultra vires. Is either way applicable here? No Charter right being infringed. And court
fees are very within Provincial powers. Administration of Justice in the Province.
o S 96: judicial component of constitution. SCC uses s 96 to render a provincial provision
unconstitutional. This is what Rothstein says is a “novel” use of s 96. BC s 96 is really
about the powers of the federal govt wrt the appointment of judges and such. Provincial
legislation can’t take away powers of federal courts. But does this do that? No.
o Court distinguishes Christie, but still, this could be a new trend.
Lawyers’ fees – often seen as the main culprit
 So what do we do?
 Look at public avenues to funding
 Rethink methods of private funding
 Change the procedural rules
Alternatives to self-funded litigation
 Public avenues:
o More Legal Aid will solve all our problems!
o Is Legal Aid the answer?
 Maximum Annual (Gross) Income for Free Legal Aid (QC) 2014
o This is a significant increase since 2011
o Single: $16,306
o Families: $19,948–$26,737
o In June 2015, people working full-time at minimum wage will be covered
o There is also a regime for those earning slightly higher wages to obtain legal aid with
some contribution
 Gross Income Requirements for LegalAid in Ontario
o Single person: $11,448
o 5 person family: $28,317
o One of the things Ontario has done is provide different LA services. Above are the
amounts for people entitled to a “full certificate”. But there are higher levels for which
you are entitled to duty counsel or summary legal advice assistance, and legal aid with
contribution
o These amounts represent huge increases in recent years
o Yes, “publicly-funded legal aid plans will never have sufficient resources to meet all of
societal needs” (McMurtry)
15
Other Public Avenues
 Eg. No-fault insurance – means you can’t sue in court for death or bodily injury. This takes it out
of the civil justice system, but may still provide justice?
 Administrative tribunals – may be easier to access
 Government Funding
o Former federal Court Challenges program
 Fund killed by Harper about 4 years ago. Helped fund some very impt cases,
though: Gay marriage case, voting by prisoners case, criminal code ban on
spanking children
 Could receive up to $60,000 to take a case to trial.
o Class Proceedings Funds (Fonds d’aide aux recours collectif) – in ON and QC.
 Self-help centres (BC as an example)
o BC Self-Help Information Centre. Right across the street from the Court. There for nonrepresented litigants. To help learn about court system and procedures. Help people
locate and fill out relevant forms.
Alternatives to Self-Funded Litigations: Private Avenues
 How do lawyers normally charge? Hourly rate. This contributes to the problem. Lawyer has no
interest in speeding up the case or simplify procedure. Contra-incentive.
 Changing the structure lawyers’ fees: Conditional fee arrangement. Relatively new arrangement
in Canada. Made legal in ON in 2002.
o Different ways of having a conditional fee arrangement. Typical=if the side you
represent wins, you get a %, and if the client loses, you get nothing. Movie or book A
Civil Action. In England, it is different. If you win, lawyer gets hourly rate fees they would
have gotten (not a percentage)
o Historically, this was seen as undesirable – don’t want lawyer to have financial interest
in the case. Restrictions on types of cases (no criminal or family).
o Good: it opens the doors to access to justice. Discourages frivolous or unreasonable
cases. Incentivizes efficiency.
o Bad: “cherry picking” – no advancing the law because no risky cases; ambulancechasing; creates a conflict of interest; only helps plaintiffs, not defendants; doesn’t help
in cases where you get the help in Legal Aid (family law, for eg)
o In her view: what class actions do best is change bad behaviour
 Pro Bono: means working for free. Lawyers should be offering legal services PB. CBA encourages
each lawyer to do 50 hrs per year PB. Pro Bono QC started a couple of years ago.
 Insurance for legal fees. Very few people do it.
 Intervenor funding
 Class Actions
 Publicly traded law firms?
o How does this help?
 Third-party financing (legal fees financed by Financial Services Firm)
o Eg. Lexfund management
 Is one of the problem the monopoly on legal services?
o Deregulation of lawyers – not requiring membership in Bar
o Paralegals providing more legal service
o Desperate measures – “Man wants to sell his kidney for legal costs”7
16
What else can we do?
 Work within the system to make it more efficient, quicker and therefore less costly
 How? Lord Woolf approach
 Legislate stricter rules, timetables, give more responsibility to judges/courts, create rules of
proportionality, summary judgement (Hryniak), encourage settlement (through carrots and
sticks)
o Note: QC does not have a summary judgement
o Summary judgment: prevents people going to trial
o Proportionality: Corbeil case. Court grapples with what it means to give courts power
over proportionality. Can you have a partial dismissal of the case? Court says
proportionality gives extra push to say yes, you can.
Access to Justice by Lord Woolf
The Importance of Civil Justice
-A system of civil justice is essential to the maintenance of a civilised society. The law itself
provides the basic structure within which commerce and industry operate. It safeguards the rights
of individuals, regulates their dealings with others and enforces the duties of government
-Effective access to the enforcement of rights and the delivery of remedies depends on an
accessible and effective system of civil litigation. Every citizen has constitutional right of access to
means of effecting a just/peaceful settlement of disputes
The basic principles that should be met by a civil justice system are:
Fair ie. equal opportunity to assert/defend legal rights regardless resources, costs proportionate to
nature of issues, reasonably speedy, understandable to users, responsive to users’ needs, provision of
certainty (treat like cases alike), effective and adequately resourced and organized
The Problems with the Current Civil Justice System
 Problems concern the processes leading to decisions (not the decisions themselves)
Despite the implementation of many procedural reforms there is an urgent need for further fundamental
reform and modernisation. Underlying themes in the 1993 Report are:
early settlement of disputes;
Obliging lawyers to prosecute and defend their proceedings with efficiency and despatch;
Ensuring procedures are simple and easily comprehensible
The Major problems facing civil justice today: too expensive (cost), too slow (delay), too complex
(complexity)
o These stem from the uncontrolled nature of the litigation process
Adversarial environment:
The main responsibility for conduct of proceedings lies with the parties – role of the judge is to
adjudicate on issues selected by parties when they present them in court. Without effective judicial
control, this is likely to encourage an adversarial culture and to degenerate into an environment in
which the litigation process is seen as a battlefield where no rules apply. The consequence is that
expense is often excessive, disproportionate and unpredictable; and delay is frequently
unreasonable.
 Present system allows timetables that are set out to become generally ignored + other requirements
to be complied with when convenient to the interests of one of the parties .
 The delay in being able to obtain effective intervention by the court both
encourages rule-breaking and discourages the party who would be prejudiced from applying for
preventive measures.
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-Discovery is pursued without sufficient regard to economy and efficiency in terms of the usefulness of
the information
-The principle of full, candid disclosure has been devalued.
Excessive cost of litigation deters people from making or defending claims. It is often cheaper to
pay up, irrespective of the merits, than to defend an action. Large corporation who defend a claim must
are burdened with a diversion of executives and other employees from their normal activities
Disproportionate Costs: costs of litigation, for one side alone, frequently equal or exceed the value of
what is at issue. Disproportionate costs are most severe at the lower end of the scale
Uncertain costs: due to inevitable uncertainty as to the outcome of litigation; management of the case
is primarily a matter for the parties and either side can influence not only its own costs but also its
opponents
Delay: Time that it takes to get a court date, reach a settlement, time of the hearing itself (no predetermined program for the length/conduct of a hearing, no effort to focus on key issues or evidence) is
problematic: postpones compensation, interferes with parties’ normal existence, makes it more difficult
to establish facts
 Delay benefits legal advisors, not parties
Complexity-The complexity of the present procedure for conducting litigation impedes access to the
courts. The problem is greatest when a party is not represented by counsel
Unavailability of Legal Aid: The higher costs of litigation, fewer people that can be helped by legal
aid (more people deemed ineligible)
 Most of those who are ineligible, however, still can’t afford legal assistance
A low priority for civil justice: historically civil justice received less attention than criminal law
Summary of problems: lack of control over system of civil litigation, inadequate attention which
system gives to control of costs/delay and need to ensure equality of the parties, complexity of the
present system, absence of any satisfactory judicial responsibility for the effective use of
resources in the civil system
The Major Reforms Necessary
 Must fundamentally shift the responsibility for management of civil litigation from litigants
and their legal advisors to the courts  involves a radical change in culture litigants must
accept that, once they commence proceedings, they no longer have sole and unfettered control over
the way in which they take the case forward. It will place a greater
responsibility on the judges and the courts for the way in which a case proceeds through the
system to a final hearing and for the form of the final hearing itself.
 The achievement of the “right result” needs to be balanced against the resource expenditure needed
to achieve that result
-Civil justice is not ideal – need to pay attention to practical considerations in its administration
Working objectives for a reformed system of civil justice: parties should be able to easily get
information that will help them resolve the case economically, should be encouraged to settle early, use
ADR, should have a reasonable estimation of costs from the get-go, issues should be identified before
the hearing, evidence should be agreed on where possible, trials should have pre-determined
timetables, only necessary discovery allowed, rules of procedure should be simple and non-technical,
etc.
Introduction of judicial case management is the key
The most complex and important cases will be heard only by High Court judges and not by
deputies. Other cases will be managed and heard by the appropriate level of judge and will be
able to move flexibly within the system to ensure this.
18
The procedural judge will: conduct the initial scrutiny of all cases to allocate them to the appropriate
management track; generally monitor the progress of the case and investigate if parties are failing to
comply with timetables or directions; and encourage ADR where appropriate;
There will be a senior judge to ensure the effective use of resources within the entire administration of
civil justice
Better information and advice should be provided by the Court Service or by advice agencies, funded
by legal aid.
The court will control the nature and scale of discovery having regard to the size of the case,
the cost of discovery and the likely benefit.
To provide greater transparency of costs, solicitors will be required to inform parties their method of
charging at the outset and at key stages
Hryniak v Mauldin, 2014 SCC7
Facts: A group of American investors (the "Mauldin Group") placed their money in the hands of
Tropos Capital Inc., a company incorporated in Barbados that traded in bonds and debt instruments.
At the end of June 2001, the group wired US$1.2 million to Cassels Brock (a Canadian law firm), which
was pooled with other funds and transferred to Tropos.
A few months later, Tropos forwarded more than US$10 million to an offshore bank, and the money
disappeared. Hryniak (the principal of Tropos) claimed that at this point, Tropos’s funds, including the
funds contributed by the Mauldin Group, were stolen.
The Mauldin Group brought an action for civil fraud against Hryniak. The group brought motions for
summary judgment.
Issue(s): Was the evidence submitted during the pre-trial period enough to satisfy a motion for
summary judgement under Rule 20.04(2.1) of the Ontario Rules of Civil Procedure?
Held: Yes. A trial was not required for Hyrniak; a summary judgement was sufficient.
Reasoning: Karakatsanis J. “Ensuring access to justice is the greatest challenge to the rule of law in
Canada today.”
Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to
the affordable, timely and just adjudication of claims.
She warns that a push towards summary judgements could end up creating delays and increasing
costs if it is ultimately decided to move to trial, so she directs judges to mitigate those risks.
To give judges that authority, she offers a new test for summary judgement asking whether there is a
“genuine issue requiring trial” instead of whether the case presents “a genuine issue for trial”.
Emphasis is placed on the insufficiency of a summary judgement as justification for moving to a full
trial. A trial is not the default. It should be justified.
Test: Summary judgment motions must be granted whenever there is no genuine issue requiring a
trial. There will be no genuine issue requiring a trial when the judge is able to reach a fair and just
determination on the merits on a motion for summary judgment. This will be the case when the
process
(1) allows the judge to make the necessary findings of fact,
(2) allows the judge to apply the law to the facts, and
(3) is a proportionate, more expeditious and less expensive means to achieve a just result.
Ratio: A summary judgement should be used liberally in processing cases.
Takeaway: Lower bar for summary judgment motions, motion judge to take more active role, extensive use of
oral evidence is justified to avoid moving to trial, and appeals of summary judgements have a higher threshold.
19
Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014
SCC 59 (excerpt)
Facts: Originally a child custody matter. V asked at the beginning of trial to be relieved of paying the
hearing fee. The judge reserved judgment on that until the end of trial. 10-day trial. Total was $3,600
for hearing fees, which the family could not afford. The judge asked for submissions on the
constitutionality of hearing fees. Though both parents were unrepresented, The TLABC, the CBA and
the BC AG intervened in the matter. The appellants (V) argue that the fee schedule is unconstitutional
based on rule of law and access to an independent judiciary. BC argues that it is a valid exercise of
provincial power under s 92(14) of the Constitution.
Issue(s): (1)Is BC’s hearing fee scheme constitutionally valid? (2) If not, what is no appropriate
remedy?
Held: It is unconstitutional, it must be struck down.
Reasoning: S 96 of the Constitution restricts the ability to abolish or remove any part of the core or
inherent jurisdiction of superior courts. By imposing hearing fees that prevent some individuals from
having their private and public law disputes resolved by the courts of superior jurisdiction – the
hallmark of what superior courts exists to do, it does just that and impermissibly impinges on s 96.
Access to justice is also necessary for the rule of law, so a fee scheme which prevents access is against
the rule of law.
When hearing fees deprive litigants of access to the superior courts, they infringe the basic right of
citizen to bring their cases to court. That point is reached when the hearing fees in question cause
undue hardship to the litigants who seeks the adjudication of the superior court. A hearing fee
scheme that does not exempt impoverished people clearly oversteps the constitutional minimum (the
BC provision does exempt ‘indigent’ people). A fee that is so high that it requires litigants who are not
impoverished to sacrifice reasonable expenses in order to bring a claim may, absent adequate
exemptions, be unconstitutional because it subjects litigants to undue hardship, thereby effectively
preventing access to the courts.
Hearing fees have two purposes: to prevent frivolous use of the courts, and as a source of revenue.
The BC fees go beyond these purposes and limit access.
BC would have exemptions for those who cannot afford the fees “read in” to the legislation, but this
remedy is not available because it an interpretative stretch and would be impractical in practice. Only
remedy is to strike down the scheme to have the province enact another.
Dissent (Rothstein): this is making up a meaning for s 96 that did not previously exist. This legislation
is well within provincial jurisdiction. It is dangerous to rely on RofL for this kind of reasoning.
Ratio: Legislatures are allowed to charge hearing fees, so long as it does not prevent access to the
courts. The fees must have exemptions for the impoverished at the minimum. Exemptions must cover
non-impoverished litigants as well if the fees are high enough to cause undue hardship.
British Columbia (AG) v Christie, 2007 SCC 21
Facts: The Social Service Tax Amendment Act (No 2) of 1993 imposed a 7% tax on legal services.
Christie worked with very low income people who often could not pay his bills. He had to pay the tax
to the Province even when he did not get paid by his clients. After he had $5000+ seized by the govt,
he stopped practicing for a time. He also said there was a cost associated with setting up the
accounting system required to pay the tax. Christie claimed that the net effect was that his clients
could no longer afford counsel.
20
Judicial History: the trial judge was convinced that the tax resulted in a loss of access to justice for
Christie’s clients. She further found that there was a fundamental constitutional right to access to
justice, that this access was breached by the tax, and that the tax was not saved by s 1. The BCCA
agreed, defining the constitutional right of access to justice as “the opportunity to obtain legal
services from qualified professionals, that are related to the determination and interpretation of legal
rights and obligations by courts of law or other independent tribunals”. The dissent rejected this
conclusion.
Issue(s): Is the legal services tax constitutional?
Held: Yes – there is no
Reasoning:
 “What is sought is the constitutionalization of a particular type of access to justice – access
aided by a lawyer where rights and obligations are at stake before a court or tribunal.” The
constitution does not support this type of access
 First: what does the proposed right entail, second: is it supported by the constitution
 The proposed right would cover most, maybe all, cases that come before a court or a tribunal.
This would basically be a constitutionally mandated legal aid scheme for virtually all legal
proceedings. This would cost a lot.
 Also, it might result in more cases being brought forward. Some might applaud this result,
“but the fiscal implications of the right sought cannot be denied” (para 14).
 “What is being sought is not a small, incremental change in the delivery of legal services. It is
a huge change that would alter the legal landscape and impose a not inconsiderable burden
on taxpayers” (apra 14)
 BCGEU v BC (picketing case) found a constitutional right for access to court, but this right is
not absolute. Provinces can still legislate imposing some limitations on access to courts. So
BCGEU can’t stand for the idea that every limit is unconstitutional.
 The Rule of Law is a foundational principle (para 19). Three principles of RoL: (1) law is
supreme over govt officials and preclusive of arbitrary power, (2) requires positive order of
law (3) requires that the relationship between state and individual is regulated by law
 These principles don’t include access to lawyers. Lawyers do play important roles in
maintaining the rule of law, but a general access to legal services is not a fundamental aspect
of the rule of law.
 The Charter provides for a right to legal services in only one, specific situation: on arrest or
detention (s 10b). S 7 has also been found to include a right to counsel as a matter of
procedural fairness when life, liberty or security of the person are at stake. But still no general
right.
 Historically, rule of law has not meant right to a lawyer, except in limited (criminal) cases.
 “We conclude that the text of the Constitution, the jurisprudence and the historical
understanding of the rule of law do not foreclose the possibility that a right to counsel
may be recognized in specific and varied situations.“ (para 27)
Ratio: There is no constitutional entitlement to legal services in relation to proceedings in courts and
tribunals dealing with rights and obligations.
Corbeil v Gatineau (Ville de), 2009 QCCQ 10
Facts: C (and L) are suing the city of Gatineau for a total sum of $18,000 related to a zoning and
construction dispute. They are claiming $16,000 in damages for the city’s alleged faults in (a) giving
them false/inaccurate information and (b) imposing an unfair condition of land consolidation in return
21
for a permit for minor derogation. They are claiming an additional $2,000 for the reimbursement of a
deposit to apply for the minor derogation permit. The $16,000 is clearly prescribed under the Loi sur
les cités et villes. The other $2,000, however, is not damages and is therefore not prescribed. The part
dismissal of claims at a preliminary level is in principle prohibited in Quebec but this would mean that
a claim for $18,000 is very clearly only for $2,000, and should be in Small Claims Court rather than
Superior Court.
Issue(s): Can the principle of proportionality now codified in art. 4.2 CCP allow for partial dismissal of
the claim at a preliminary stage?
Held: Yes; claim for $16,000 is dismissed and the claim for $2,000 sent to Small Claims Court
Reasoning: Even before the entrance into force of art. 4.2, we notice in the jurisprudence that:
1. Courts have still occasionally resorted to part dismissal of claims, though it technically doesn’t
exist in Quebec private law
2. This happens when the judge is entirely convinced that a substantial part of the action is
inadmissable and that to engage in a fundamental debate about it is incompatible with the
proper administration of justice
3. The window of opportunity for partial dismissal of an action is widening
4. Courts continue to affirm that part dismissal doesn’t exist in Quebec and are hesitant to
qualify what they are doing as such, but are, on the facts, partially dismissing claims
Is part dismissal more conceivable post-implementation of the CCP reforms in 2003?
 4.2 CCP “In any proceeding, the parties must ensure that the proceedings they choose are
proportionate, in terms of the costs and time required, to the nature and ultimate purpose of
the action or application and to the complexity of the dispute; the same applies to
proceedings authorized or ordered by the judge.”
 4.1, para 2 CCP: “The court sees to the orderly progress of the proceeding and intervenes to
ensure proper management of the case.”
 Placing these two articles at the beginning of the Code creates a “metanorm” applicable to
the entire judicial system
 These articles state general principles that guide the interpretation and application of the
codal articles; they don’t create new procedural rights but must be taken into consideration
in determining the nature and extent of the rules created by particular articles
 A general application of the value of proportionality is in line with the goals of the CCP reform
to a) avoid the unnecessary complexification of certain files and b) to centre proceedings on
what is important
 A request for partial dismissal centers proceedings by promptly getting rid of the part of the
action that is clearly unfounded in law even if the facts as pleaded are correct
 The principle of proportionality is not intended to throw out particular procedural
requirements nor to move away from the pre-existing jurisprudence
 A large application allows judges to critique procedural choices, correct errors and even
create new procedural criteria and this application will continue to evolve
 These considerations allow us to add an additional criteria derived from proportionality to the
existing jurisprudence on partial dismissal: whether the inadmissible part of the action would
offend the principle of proportionality if not dismissed
 In this case, failure to partly dismiss the claim would be disproportionate; it would artificially
subject what is really a Small Claims Court case to the full procedural arsenal of the Superior
Court (remember also that lawyers aren’t allowed at Small Claims Court) and it would require
an unnecessary but still lengthy and costly evidential inquiry
22

The court cannot justify, given the recognition of the need for efficiency and control of cost
and delays, reining in what was already well under way, namely a move towards part
dismissal of claims.
Ratio:
 Articles 4.1, para 2 and 4.2 are metanorms that guide the application and interpretation of
the CCP
Partial dismissal of claims is possible when part of the claim is obviously unfounded and allowing it to
proceed to trial would offend the principle of proportionality
Legislation/Rules/Regulations
1. Québec Code of Civil Procedure (CCP), arts. 9-10 (mission=proper case management & conciliation,
judicial immunity), 17-20 (17=right to be heard; art 18=proportionality) (, 25 [procedure as handmaiden]
2. Ontario Rules of Civil Procedure, RRO 1990, Reg. 194, R. 1.04(1) and (1.1) [proportionality]
Please also have a look at the fee tariffs on the websites of the Commission des services juridiques,
(http://www.csj.qc.ca/sitecomm/W2007English/Main_En_v4.asp) and Legal Aid Ontario
(http://www.legalaid.on.ca/en/)
Alternatives to Civil Justice
Class 4, Class notes (from Alison),
January 15th
**Open Book Soft Test Exam
Fleeing the civil justice system
 Where are they fleeing to?
 Alternatives to civil justice
o Becoming more of a daily reality, lawyers acting as mediators/arbitrators themselves or
representing people before these tribunals
o Starting to be embedded in the official judicial procedure
 Ontario Rules: 24.1 mandatory mediation (for which track?)
 Ontario has a 3-track system: ordinary track, simplified track, case management
track
 Judicial settlement conferencing (Quebec?)
 State-sanctioned alternatives to judicial institutions but within the
official institution with a state-paid judge
 CCP – first 7 articles about ADR
The ADR puzzle
 A number of permutations and combinations that we can put together to solve disputes – no
one answer
 Publicly funded – adjudicative method is trial, consensual method is judicial conciliation
 Privately funded – adjudicative method is arbitration, consensual is negotiation, mediation
 Who do we want to pay for it?
o If publicly funded, should it be limited to judicial adjudication? (Trial)
o If privately funded, do you want your dispute resolution to be as close to the
trial/adjudicative method as possible?
 Maybe we don’t want adjudicative method – consensual approach
o Should it be paid for by the state? In Canada, generally only consensual resolution paid
for is judicial conciliation although there are some exceptions (Quebec pays for some
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mediation in divorce cases with minor children – 5 hours or 2 ½, depending on
circumstances)
 Idea that won’t settle dispute in only a few hours, but is a carrot to show that
mediation is so much nicer and more humane
Forms of ADR
 Arbitration
o Binding! Just like a court decision, sign on to turning dispute over to third party, having
third party decide based primarily on law
o Arbitral decision capable of enforceability
 But need one extra step – court decisions are automatically subject to judicial
execution
 Arbitral decisions are not automatically executable, need to get it homologated
first
o One of biggest reasons to go to arbitration (or ADR of any kind) is confidentiality
o Judge-shop – you and the other party pick the judge
o Set your own rules, within limits
 E.g. can choose that arbitrator apply Unidroit principles
o No appeal!!
o Have to pay for it – the judge, the room, etc
o Technically no precedent – but increasingly, like in Quebec, looking to precedent a bit,
although difficult because confidentiality
o Quicker?
 Potentially because can bypass court docket
 But quicker about what?
 Getting to make your arguments before an arbitrator? Probably
 Time spent in front of arbitrator? Maybe not because parties choose
how long to take, unlike in court where judge can constrain amount of
time taken
 Can be quicker if parties want it to be quicker
o Cheaper?
 Cheaper for the taxpayer
 If it’s faster, is cheaper
 Bachand: it has the potential to be quicker and cheaper but parties are usually
not smart about how they draft their arbitration contracts – e.g. do you really
need 3 arbitrators?
 Mediation
o Not adjudication
o Not binding
o Consensual model
o Confidential
o Disinterested third party
o You pay for it - private
o Settlement can be enforced (after homologation)
o Why prefer mediation to arbitration?
 Empowering to the parties – resolve their dispute themselves rather than hand
it off to someone else
 Goes to what are the needs of the parties
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
Solutions can be more creative, restorative
 E.g. Stac/Microsoft case – Microsoft invests in Stac rather than just pay
negotiated damages – the win-win of mediation that an adjudicative
process can never do
 Can be mutually beneficial, lessen antagonism, have hope for future relationship
(even sometimes at level of non-individuals with emotions etc)
 Conciliation (Judicial Mediation)
o In Quebec, part of tripartite attempt to make access to justice better, implement Lord
Woolf Report – proportionality, case management, reconciliation
o Legislator providing funds to allow judges to become mediators
o Codified starting in 2003, repeated in new code
o 4.3 CCP
o Makes it very easy – super simple form
o Can’t be ordered by a court, but can be suggested
o Nothing to lose because free!
 163 CCP – no cost to the parties
 And your case doesn’t get taken off the rolls
 Can do it even at appellate level
o Ethical issues about whether judges should be conciliators
 Not what judges trained to do
 Moral authority of judges – works both ways
 People perceive them as impartial, independent, trustworthy – good
thing
 But parties ask the judge what she would do in court, think judge has
answer – judges can’t give legal opinions, not about right and wrong
 Whatever the judge says, parties take so seriously b/c of her moral
authority
Considerations for ADR
 Cost – can be, not necessarily
 Speed – can be, not necessarily
 Privacy
o Scope of confidentiality (Union Carbide)
o But what if parties don’t follow the agreement?
 Article 2633 (?) CCQ
 Homologation – taking your settlement before the court and making it
equivalent to a judgment, becomes public – lose confidentiality
o Union Carbide – how much gets public when we homologate?
 SCC: it depends on the confidentiality terms of the contract, although the
publicizing effects of homologation generally continue
 Dynamics
 Decision-maker
o Who, who chooses, who are appropriate decision-makers?
 Basis for the decision
o Law, which law, not law?
 Enforceability of decisions
Attitudes to ADR
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




3 paradigm shifts in attitudes to ADR in last 40-50 years
1965 - ADR was prohibited, SCC says agreement to arbitrate was against public order
From prohibition to toleration
Then from toleration to encouragement
o 30 years after National Gypsum
o Largely as a result of widespread civil justice reform, Lord Woolf
Encouragement to Imposition
o CCP
o Mandatory mediation in Ontario
Settlements
 Are they good?
 Union Carbide – SCC says encouraging settlement is good!
 But is it an appropriate settlement management technique?
o Against
 No precedents
 Cases too important to be settled
 Partial measures
 Peace instead of justice
 Group claims – could settle individual claims on the cheap, ignore the systemic
problem
 Enforce inequalities between parties
 Won’t change bad behaviour – either the company’s or others
 Deficit of jurisprudence in certain areas, creates a distortion because cases that
don’t settle are extreme ones
o For
 Outcome – dispute resolution
 Delay
 “To be against settlement is only to suggest that when parties settle, society gets less than what
appears, and for a price it does not know it is paying” (Fiss, page 19)
 ADR – systemic considerations or its virtues?
Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35
Facts: The parties had entered into private mediation and signed a standard mediation contract,
which included a confidentiality clause. Dow Chemical Canada (a defendant) had submitted a
settlement offer, which was accepted by Bombardier, but a disagreement arose as to the scope of the
settlement. When Bombardier filed a motion, Dow sought to strike out allegations contained in the
motion materials with art. 151.21 of the CCP on the ground that they referred to events that had
taken place during the course of mediation, in violation of the mediation contract’s confidentiality
clause.
Issue(s): Does a mediation contract with an absolute confidentiality clause displace the exception to
common law settlement privilege?
Held: A confidentiality clause in a mediation contract will not restrict a party from producing evidence
of communications made in the mediation context in order to prove the terms of the settlement,
unless that is the clearly intended effect of the mediation contract. This common law settlement
privilege exists across Canada, even in Civil Law Quebec where this case takes place.
26
Reasoning: In this case, the parties did not clearly intend to override the common law exception.
Neither party amended the standard mediation contract by adding any provisions relating to
confidentiality. There was also no evidence that the parties thought they were deviating from the
settlement privilege that usually applies to mediation when they signed the mediation contract.
Ratio: Where parties contract for greater confidentiality protection than is available at common
law, the will of the parties should presumptively be upheld absent such concerns as fraud or
illegality. However, the mere fact of signing a mediation agreement that contains a
confidentiality clause does not automatically displace the privilege and the exceptions to it.
Louise Otis & Eric H. Reiter, “Mediation by Judges: A New Phenomenon in the
Transformation of Justice”, (2006) 6(3) Pepperdine Dispute Resolution L.J. 351-403
A New Phenomenon in the Transformation of Justice
Introduction
 The institutionalization of ADR is an indication of fundamental changes at work in our legal
system and our concepts of justice and law
 Judicial mediation, where sitting judges act as mediators, is one form of institutionalized ADR
 This article look at Québec's voluntary judicial mediation program to assess ways in which
judicial mediation challenges and complements traditional notions of adjudicative justice
 It argues that judicial mediation heralds a new, participant centered normative order that
conceptualizes litigation more broadly and holistically and offers fuller and better justice
adapted to the needs of parties
 The operative question is no longer whether ADR has a place in the justice system, but rather
how, where, and who should do it
A. From Classical Adjudication to Judicial Mediation
 “Alternative” dispute resolution suggests the existence of a dispute resolution norm in
comparison to which other forms are imperfect or second best
o That norm is adjudication or court-based resolution of adversarial disputes
 But other forms of extrajudicial dispute resolution have a long history alongside adjudication
and the State monopoly view rests on an overly narrow conceptualization of both disputes
and their resolution - the vast majority of conflicts arise and are resolved far from state
institutions
 We should think of a dispute resolution continuum rather than a stark division between state
institutions and informal methods
 ADR, in general, and judicial mediation, in particular, represent the institutionalization of some
of these informal ways of normative order
1. The Classical System
 State justice institutions have increasingly become the principal focus for the formal expression
and resolution of complex
 They embody law of a particular kind, with characteristic dispute resolution mechanisms that
reflect the law they apply
 The principal mechanism remains the trial, an adversarial and contradictory procedure that
juridicizes the conflict
 The norm is a state controlled justice system whose essential purpose is to balance the parties’
opposing interests or subjective rights by means of a judicial decision
 Several characteristics that shaped the dispute and determine its resolution:
o Polarizing the parties’ roles, opposing legal representatives for each side, and
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exacerbating the antagonism at the source of the conflict
o Turns a conflict into a dispute - a narrowly focused, legally-defined event with which
the court can deal
o Procedurally intensive
o Substantively, about the judicial determination of the rights and obligations engaged
by the complaint
 Some serious shortcomings include long delays, judicial and extrajudicial costs, agency costs,
the physical and psychological trauma associated with long judicial conflicts, and the inherent
limits of contradictory debate to finding the best solution to end a dispute
 In most civil disputes, complex and procedurally oriented contradictory debate is ill-suited both
to the efficient resolution and to the interests of litigants
2. Judicial Mediation
 Flexible, party centered modes of dispute resolution address many of the shortcomings of the
adversarial system
 For disputes already within the adjudicate system, judicial mediation presents a powerful
alternative trial - via media
 JM combines some of the legal and moral gravitas of adjudication with the flexibility and
adaptability of ADR
 It is not just a efficiency reform but also a re-conceptualization of the role of the courts and
judges
 JM presents numerous advantages from the point of view of efficiency:
o Significant savings of time and cost, improved turnaround time, reduction of backlog
in the traditional system, reduces incentives for one party to use the system to its
advantage
 More intangible benefits:
o Parties shift from win-lose mindset towards agreement, reducing tension and mental
pressure
o Serves the desire of the community to move away from impose justice to mutually
negotiated and accepted solutions - makes justice more human, participatory and
accessible
3. Why a Judge?
 Judges are well suited for the role of mediator for reasons relating both to the perceptions of
the parties and to the specific skills possessed by judges:
o Moral authority: judges are perceived as impartial and independent but judges must
be very careful in exercising this authority
o Judges, with their institutional relationship to the adjudicative system, are well placed
to uphold the integrity of the adversarial system - it keeps the review process inhouse
o Judges have a long experience intervening between disputing parties and are
committed to achieving resolution and dispensing justice
o They're already part of the subsidized public court system
o Judges know the law and are able to focus on the issues underlying dispute
 However, judges must be trained to mediate - the key is changing the judicial mindset from an
adjudicator to mediator
 Is this an efficient use of judges’ time?
o Mediation usually requires less preparation times than a trial
o An immediate settlement avoids deliberations, another savings of time
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o
Dealing with the conflict as a whole reduces the likelihood of side-issues going before
other courts
o Even a failed mediation can help parties focus the issues for return to the court
system
o JM should not mean the end of private mediators outside court system - private
mediators are most effective at an earlier stage in the conflict process
B. The Déroulement of a Judicial Mediation Session
1. Conflict
 Before a conflict can be successfully resolved, it must be understood
 Crucial to understanding is that there usually exists a relationship between the parties
 Conflict is an expression of intelligence and human creativity but we try to exclude and repress
this potentially beneficial social force
 Each conflict is different so the participants themselves must determine which issues are
crucial, tangential, or unimportant
 How we understand and interpret conflicts relates to how we choose to describe human
interactions, e.g. whether we choose to see them as predominately conflictual or
predominantly cooperative
 The distinction between adjudication and mediation can be understood as an example of this
contrast
 An adjudicated solution must have a winner and loser, while a mediated solution can seek a
cooperative, relational solution
2. Consent
 Mediation must begin with an expression of consent, since unlike the constitutional or
statutory basis of adjudication, mediation rests on a contractual or transactional foundation
 Since it is voluntary, much depends on the mindset of the parties
o It undermines the integrity of the process if parties cynically uses the process to gain
an advantage
 The nature and scope of the parties’ consent will determine the nature and scope of any
settlement reached so it is crucial the parties clearly define why they are there
 Not every matter can be appropriately or effectively be mediated
o In Québec, JM is available for most civil, family, commercial, administrative and
criminal matters, while constitutional and Charter questions are excluded
o Additionally family cases involving violence or assaults are beyond the scope of
mediation - no realistic possibility of the balance between the parties exists
 Mediators must be sensitive to the quality of consent - some parties may choose a discounted
settlement immediately rather than a long and stressful court ordeal
3. Opening
o Mediation begins with the plenary session
o Allows participants to understand why they are there and how the mediation will
proceed
o It also allows the judge-mediator to pin down the precise terms and scope of the
mandate
o The judge explains what JM is and clarifies its differences from adjudication:
o The judge mediator acts as a mediator and does not impose a decision or give an
opinion
o The process is confidential
o The mediation file will remain separate from any subsequent court action
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o Parties are in control
o Parties then agree on the mandate of the judge mediator - whether the mandate will be limited
to the specific dispute that issue or whether it will extend to the settlement of linked cases
pending in the courts
o The spatial configuration of the mediation session is important - communication is triangular,
with the parties addressing each other
4. Communication and Negotiation
o Essence of mediation is oral communication between the parties
o The mediator is a facilitator but facilitation plays a vital role in moving the parties towards
agreement
o At the beginning, parties are communicating, but they are not negotiating
o They are in an adjudicative mindset; their narrations remain strongly adversarial,
centered on grievance and blame
o Mediators must get the parties to change their mindset from one of competition to one of
settling the problem
o This requires creating a different dynamic of listening
o Destructive listening has as its purpose to pick apart with the other parties saying
o Constructive listening aims both at comprehending and keeping the conversation
going
o Fostering this shift requires being particularly attentive to power dynamics
o It requires realization that communication is relational and coloured by past and future
relationships
o It requires an understanding of the complexity of culture as it intersects with conflict
o It requires recognizing that emotion has an important role to play in communication
o Although mediation should be dominated by the mindset of rationality, allowing
parties to express emotional reactions can allow the mediator to identify truly
intractable problems and provide insight
5. Decision
o Negotiation leads ideally to a settlement that ends the conflict between parties
o Once agreement is reached, it is the lawyers that put it to paper; the judge mediator plays no
role in drafting however may have to work with any unforeseen problems that could arise
o The agreement must be reviewed with the parties to ensure that it accurately reflects their
consent
o If so, the decision can be confirmed as a settlement by the court
o Mediation is a highly prospective endeavor and so the agreement must remain comprehensible
to the parties even after they're no longer with their lawyers and mediator
o This is important because mediation is often focused on the existence and maintenance of a
relationship between parties - mediation “drafts a kind of constitution for their relationship”
6. Closure
o The full promise and innovation of JM becomes evident at this point
o JM is particularly suited to developing and exploiting the educative function of the process
o In this session, the judge mediator asks the parties what they have learned
o She acts as an active instructor, leading the parties to understand and to integrate into their
lives the basic principles of conflict resolution
o This has efficiency benefits but also brings forward an essential aspect of the law and the
judicial role, which is insuring the smooth running of society
C. Ethics in Judicial Mediation
o The different roles of judges and lawyers in mediation as compared to adjudication raise
30
important ethical issues
o Mediation requires that legal ethics be redefined away from the paradigm of competition and
towards non-adversarial ethics
o The nonpublic nature of mediation leads to several areas of ethical concern, each of which
requires rethinking or redirecting existing ethical principles
o Possibilities for appellate review are limited due to the closed nature of the proceedings
o Parties focus more on abstract issues of ethics rather than legal principles and procedural
guarantees
o Judges are in close contact with litigants in an atmosphere where rules and boundaries are not
clearly defined
1. Confidentiality
o The efficacy of mediation rests on the confidentiality of the proceedings, which creates the
necessary climate of trust
o The general rule is that mediation proceedings are confidential and cannot subsequently be
brought up in court, barring very rare and exceptional circumstances
o This puts the judge mediator in a particularly delicate ethical position because as facilitator, she
gets knowledge of sensitive information and must use the information to promote settlement
while still respecting confidentiality
o Her role is an active one and choices of freezing, emphasis, or timing have ethical implications
o This requires solid and thorough skills training
2. Party Autonomy
o Since parties are in control of the process, while the judge is the guardian of fairness,
substantively her role is limited to verifying that the parties give real consent and that the
settlement respects public order and is not manifestly and extremely unfair
3. Fair Treatment
o Mediators must be particularly sensitive to the dynamics of power remediation
o They must beware cultural differences and expectations and the negotiating style and
mishandled these differences carefully and respectfully
o These factors relate to the issue of consent; the judge must always be vigilant that consent is
free and clear
4. Lawyer’s Ethics
o Mediation is designed to give voice to the parties themselves meaning the role of lawyers is
more vaguely defined
o Their presence is sometimes a problematic invasion of the classical model into the new
paradigm
o Lawyers are governed by their code of ethics even when representing a client in mediation and
their ethical obligations in two directions
o They have a duty of loyalty to their clients but must also serve justice and not act in a manner
detrimental to the administration of justice
o Lawyers must remain conscious of the ultimate goal of the process, which is settlement rather
than victory
o Lawyers have a further duty, advising the client on the availability or suitability of mediation
despite their financial incentives in proceeding to trial
Conclusion
o JM provides another way to achieve the just, complete, and efficient resolution of legal
conflicts
o It is integrated fully within the formal legal system but temperas its rigidity and formalism
o Issues:
31
o Should it be expanded, e.g. to criminal cases?
o Clarification of ethical principles
Concern over the tendency towards the professionalization of the process - e.g. Lawyers, rather than
parties, creating the settlements
Leonard L. Riskin et al, “What Process is Appropriate: the Great Debate over Settlement
and ADR”, Chapter I.C of Dispute Resolution and Lawyers, Fifth Edition (St. Paul, MN: West
Publishing, 2014), at 14-25.
Settlement and Alternative Dispute Resolution (ADR): There are lots of forms of dispute resolutions,
and choosing the right form for each dispute is a complex matter.
Fiss – Against Settlement: Settlement is a highly problematic technique for streamlining dockets.
Consent is often coerced as parties don’t have equal bargaining power (read resources). The bargain
may be struck by someone without authority (for example, in a corporation) or may be decided by
one party against the best interests of another on the same side (like an insurance company and a
client). The absence of a trial and judgment interferes with precedent-making, prevent subsequent
cases the benefit of a judgment. Finally, justice may not be done as the courts represent an impartial
party best equipped to dispense it.
Menkel-Meadow – In Defence of Settlement (In Some Cases): Not for or against settlement, but
rather describes when/how/what circumstances it should be used. Critics of settlement are “litigation
romantics”. Settlement can be justified on its own moral grounds (empowerment, dignity,
participation, efficiency, access, etc). Settlements don’t always require compromise, which can result
in fairer outcomes. Three questions about settlement: when is it legitimate for parties to settle
themselves, when is consent “real” and when should consent be trumped by other legitimate values?
Eight arguments for settlement: consensual, allows for a broader range of solutions, compromise can
be good, is a principled supplement to the common law as laws cannot cover all situations, more
human than the formalized court process, sometimes more adaptable to complicated issues, more
complete access to relevant information for problem-solving, can increase access to justice
Legislation/Conventions/Rules
1. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958)
2. CCP, arts 1-7 [private dispute resol’n measures, art 2: proportionality; art 6: suppletive rules], 9 [,
161-165 [settlement conferences], 220, 605-615 – book VII Private Dispute Prevention and
Resolution processes (mediation section), 620-648 – arbitration section
3. ON Rules of Civil Procedure, R. 24.1 – mandatory mediation in Ottawa, Toronto, essex
Publicity of Judicial Proceedings, Class 5, Jan. 20
Judicial Institutions: Fundamental Principles
 Will talk about two aspects: institutions themselves, and the people who staff them (the
judiciary)
Ideal Judiciary
 What to you are the principles by which Judiciary should be guided?
o Independence, What do we mean by this? Independent from government, what else?;
Impartial Representative; Diligent, know the law, competent; Accessible? Question
about that; Transparency; Accountability
 Independent
 Impartial
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



Competent
Ethical
Accountable
Canadian Judicial Council – accountability organism for federally appointed judges – 5 ethical
principles for judges are: independence, integrity, diligence, equality and impartiality
o Superhuman?
Publicity and Open Court Principle
 How do we know if the judiciary is all the above things, if no open court? Need public scrutiny
 “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards
against improbity. It keeps the judge himself while trying under trial” – Jeremy Bentham
Toronto Star Newspapers Ltd v Ontario [2005]
 Not in the materials
 “In any constitutional climate, the administration of justice thrives on exposure to light – and
withers under a cloud of secrecy” – Justice Morris Fish
 “Justice isn’t cloistered” – Justice Albie Sachs when speaking about the transparency features of
the architecture of the South African Constitutional Court
Reasons for Publicity of Court Proceedings
 Keeps Judges under scrutiny
o We know what’s going on in the court house bc anyone can walk in and see what it is
going on
o Is this the only reason? Me: is this even true? It is true in theory
 Gives the public confidence in the system
o Why do we need people to trust the public administration of justice? Legitimacy
o There is a third reason, that has increasingly become perhaps even more important:
 But it is also inextricably linked to the fundamental right to Freedom of Expression
o Especially the media –
 We rely on the media to do our job – to watch cases and initiate public
discussion about it. (CBC v AG Canada)
o Freedom of the Press is really the issue when we talk about Freedom of Expression
o It’s not the most important, but it is the most often-used reason to have an open court
principle. Especially in objection to publication bans or in camera cases
 Open Court principle in both Charters
o S 23 QC Charter guarantees every person a right to a “full and equal, public and fair
hearing by and independent and impartial tribunal”
o Word “public” is in the Charter
o 11(d) of cdn Charter – “fair and public hearing” – but limited to criminal cases
 But Sierra Club, etc, says this right has been generally recognized in all cases
 ALI/Unidroit – principle 20 “oral hearings should be open to the public, court files and records
should be public, and judgments including supported reasons should be accessible to the public.
o www.jugements.qc.c
 Free QC judgements
 s 135 and 137 of Ontario Courts.
 CCp – art 11(1)
o (Wherever possible, she will focus on the new code)
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Other court mechanisms ensuring open court principle:
 Court registrar allowing public to look up cases
o We have agents for this too – SOQUIJ, LexisNexis, reporters, etc
 Stenographer
Exceptions to Open Court Principle
 Possible reasons:
o Embarrassing to litigants
 Aka: we don’t want people to know our business
o Don’t want witnesses to be intimidated or scared
 Knee-jerk reaction: Publication bans (Dagenais)
o Most cases won’t require publication bans
 Exclusion orders (in camera hearings) (eg art 15 new CCP and Ontario Child and family
Services Act)
o As a general rule, family hearings or hearings dealing with minors have a
presumption that they will be in camera.
 Most FML cases are initials or numbers
 Sealing or confidentiality orders (Sierra Club)
 Anonymity Orders (e.g. art 16 new CCP, and JL v AN)
o Why don’t we do this in all cases? Maybe we should?
o Would it hurt the administration of justice? Maybe sometimes
 WHEN will exceptions apply (apart from when legislatively prescribed)
 R v NS case:
o Various aspects of open court principle. One aspect is ability to walk into courtroom,
see what’s going on, media report on that case, case be published
o Another aspect is the ability to shield your own face or identity
 Her right to freedom of religion
 Accused’s right to a fair trial
 Open court principle
Notes re Dagenais, below
Contexts other than Criminal
 Dagenais lays down the test, but how does it apply in non-criminal context?
 Sierra Club – says it is the same te st. Context: Protection of a commercial interest
o And confidentiality obligations in a contract
o Lots of people were furious at this decision. In Dagenais, the SCC overturned the
publication ban, but in Sierra Club (a case dealing with sale of nuclear reactors to China,
partially financed by govt) you AGREE with publication ban?
 Jukier: thinks this happened because Sierra Club was not asking for publication
ban, only sealing order
 What do courts do in cases of ultra-embarrassing situations (JL v AN)
o Eg Bruker v Markovitz: asked for anonymity order and publication ban. CofA said this
was not a family matter, but an action for breach of k.
o This is cited in JL v AN.
 So why is the case JL v AN? SOQUIJ (the reporter) uses its own discretion to use
anonymity.
34


In the court registry you can find out their names, bc anonymity order was
refused. But court reports have choice of what to publish. Unreported
judgements are available
How far should we go? Should we invite tvs into the classroom?
o CBC case – not the first one to go to court and say it was against Freedom of Expression,
Freedom of Press, Open Court Principle
o In every courthouse in Canada there are rules which limit media access to courthouses
(times, places). AND they can’t bring cameras into the courtroom
o There are exceptions: Truscott case in Ontario was allowed to be televised (wrongful
conviction case)
o What does CBC v Canada say about the substantive issue and the test?
 Breach of 2(b), justified on Oakes test.
 Couldn’t use Oakes test in Dagenais – not about legislation
 In this case rules of court were decided to be like legislation (interesting in itself)
 So there is a different test where you are impugning legislation, or asking for an
exception
 But the judges clearly intend for the tests to be similar and feed off each other
Dagenais v. Canadian Broadcasting Corp., [1994] 3 SCR 835
Facts: 4 people known as the “Christian Brothers” 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
had very similar facts. 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).
Issue: Will the publication ban be ordered? How do we reconcile the right to a fair trial against
freedom of speech- two competing charter values?
Judicial History: Trial J. and appeal court both granted the publication ban.
Supreme Court Holding: The application ban is too broad.
Reasoning (Lamer J.):A common law rule which provides judges with the discretion to order a
publication ban must be exercised within the boundaries set by the principles of the Charter. Those
seeking a publication ban must demonstrate that there is a real and substantial risk of interference
with the right to a fair trial. The right of an accused to a fair trial, is protected by s. 11(d) of the
Charter, yet freedom of expression is also constitutionally protected under s. 2(b) of the Charter.
Freedom of the press is an important and essential attribute of a free and democratic society. When
the rights of two individuals come into conflict, as can occur in the case of publication bans, Charter
principles require a balance to be achieved that fully respects the importance of both sets of 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 alternative measures will not prevent the risk; and
(b) The salutary effects of the publication ban outweigh the deleterious effects to the free
expression of those affected by the ban.
It is necessary to consider the objective of the order, to examine the availability of reasonable
alternative measures that could achieve this objective. The objective of the ban ordered in the case at
bar was the diminution of the risk that the trial of the four accused persons might be rendered unfair
by adverse pre-trial publicity. In the case at bar there were, in fact, reasonable alternative measures
35
available. The publication ban would have passed the first stage of analysis under the common law
rule if: (1) the ban was as narrowly circumscribed as possible (while still serving the objectives); and
(2) there were no other effective means available to achieve the objectives. However, the initial ban
in the case at bar was far too broad. It prohibited broadcast throughout Canada and even banned
reporting on the ban itself .The ban, in order to be granted, must be as limited as possible in the
circumstances.
Ratio: A publication ban will only be granted when it is necessary to prevent a real and substantial
harm to one of the parties or the fairness of the trial, and when its good effects on the administration
of justice outweigh its bad effects on freedom of expression.
Class notes:
 Concerned solely with fairness of trial to accused
 Christian brothers on trial. CBC wanted to air fictional account on CBC, with very similar facts. D
said, you can’t broadcast that, or everyone in the public will think what happened in the
miniseries is what happened in real life. Everyone will assume we are guilty.
 Issue: adverse pre-trial publicity due to broadcast of CBC mini-series
 Order sought: publication ban
 Lamer landmark decision
 Is the ban necessary to prevent a real and substantial risk to the fairness of the trial?
o Necessary to prevent a harm
o No reasonable alternatives
 Do the salutary effects of the ban outweigh deleterious effects to freedom of expression?
 Lamer says there are alternatives to a publication ban
o Adjoining trial, changing venues, having a judge give strong direction
o Today’s media: is changing venues really an option?
 This decision hailed as wonderful and in favour of open court principle
Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC
Facts: CBC and other media outlets want several rules around court declared invalid (see para 5 for
list).The rules say interviews can only be conducted and cameras can only be used in designated
places; prohibits broadcasting hearings; following people asking for interviews is not allowed;
blocking people’s movement while asking for interviews is not allowed. Complainants say these limits
unjustifiably limit Freedom of Expression and it has not been demonstrated that Press activities
interfere with courthouse proceedings. Respondents say that the prohibited activities are
incompatible with court proceedings as they have an adverse effect on decorum, the serenity of
hearings, on truth finding and on the privacy of participants in the justice system.
Issue(s): (1) Do the rules infringe s 2(b) of the Charter? (2) If so, are they justified?
Held: The activities in question are protected by s 2(b) but the limits on them are justified
Reasoning: Deschamps J
 “The open court principle is of crucial importance in a democratic society. It ensures that
citizens have access to the courts and can, as a result, comment on how courts operate and
on proceedings that take place in them. Public access to the courts also guarantees the
integrity of judicial processes inasmuch as the transparency that flows from access ensures
that justice is rendered in a manner that is not arbitrary, but is in accordance with the rule of
law.” Para 1
 Freedom of Expression is just as fundamental. “Fosters democratic discourse, truth finding
and self-fulfilment” (para 2). Freedom of the Press has always been an embodiment of
Freedom of Expression.
36
 Freedom of the Press is an essential component of the open court principle
RE filming, taking photographs and conducting interviews:
 First step: does the activity have the necessary expressive content? Yes.
 Second step: are the activities excluded from 2(b) protection as a result of location or method
of expression? No. The method of expression has to be distinguished from excesses (like
jostling, preventing people from entering courtrooms, etc). The presence of journalists in
courtrooms is essential – help public understand justice
 Third step: Whether an infringement results from either purpose or effect of the legislation.
Yes, there is infringement.
Re Broadcasting the Audio Recordings of Hearings (para 47)
 It has expressive content and is not excluded as a result of location.
 The method of expression requires more careful examination. Deschamps J rejects the idea
that method of expression always conveys a message, as claimed by media outlets. But does
acknowledge that in this case the content of a radio broadcast of a trial would be different
than other forms of conveying what happened at a trial, such as a transcript. Tone of voice
matters. Therefore, the method of expression cannot be considered separately from the
content and cannot serve as a basis for excluding the expressive activity from 2(b) protection
(para 53)
 The right to freedom of expression has been infringed.
Justification (para 55)
 The limit is prescribed by law. The objective “to maintain the fair administration of justice by
ensuring the serenity of hearings” is pressing and substantial. There is a rational connection.
The solution falls within a “reasonable range of alternatives” (para 79). It is not a total ban on
filming, not a total ban on expression. They can still ask people for interviews. “The impugned
measures are a way to assure courthouse users that they will not be taken by surprise or
harassed by journalists and that they will be interviewed, photographed or filmed only with
their full consent.” (para 81)
 Recording testimony to later be transmitted could affect testimony. This would be bad for
justice. There are negative consequences, but also positive consequences to the rules. People
can move freely and talk in the halls without being disturbed, and participant privacy is
protected.
 Also worth noting that other provinces have similar rules: ON, BC, NS (para 95)
 Conclusion, Para 98: “Freedom of the press and the fair administration of justice are essential
to the proper functioning of a democratic society and must be harmonized with one another.
Each one is just as vital as the other. Freedom of the press cannot foster self-fulfilment,
democratic discourse and truth finding if it has a negative impact on the fair administration of
justice. In the instant case, the government has taken action to reconcile those two values.
Since no right is absolute, this reconciliation must be accepted.”
Ratio: Rules limiting filming of courtrooms and broadcasting of court activity are justified
infringements of the freedom of expression.
Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41
Facts: Atomic Energy of Canada Limited (AECL) is a Crown corporation that markets CANDU
technology. The federal government made a decision to provide financial assistance in the form of a
$1.5 billion guaranteed loan relating to the construction and sale of two CANDU nuclear reactors to
China.
Sierra Club argues that the authorization of financial assistance by the government triggered s.
5(1) (b) of the Canadian Environmental Assessment Act, S.C. 1992, c. 37 (“CEAA ”), which requires
37
that an environmental assessment be undertaken before a federal authority grants financial
assistance to a project. Failure to undertake such an assessment compels cancellation of the financial
arrangements.
Relating to this deal, there were confidential documents owned by the Chinese government that the
parties wanted to be introduced as evidence. But, this was only on the condition that they be
presented under confidentiality order. In essence, what is being sought is an order preventing the
dissemination of the Confidential Documents to the public.
Issue(s): (From para 35 of the judgement)
A. What is the proper analytical approach to be applied to the exercise of judicial discretion
where a litigant seeks a confidentiality order under Rule 151 of the Federal Court Rules,
1998?
B. Should the confidentiality order be granted in this case?
In other words, should the right to freedom of expression be compromised in an application for
a confidentiality order under Rule 151 of the Federal Court Rules, 1998?
Held: The confidentiality order is granted.
Reasoning: The confidentiality order would have substantial salutary effects on the appellant’s right
to a fair trial, and freedom of expression. On the other hand, the deleterious effects of the
confidentiality order on the principle of open courts and freedom of expression would be minimal. In
addition, there is a possibility that the appellant will have suffered the harm of having disclosed
confidential information in breach of its obligations with no corresponding benefit to the right of the
public to freedom of expression.
Test: A confidentiality order should only be granted when
(1) such 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; and (2) the salutary effects of the confidentiality order, including the effects on the
right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right
to free expression, which in this context includes the public interest in open and accessible court
proceedings.
Three important elements are subsumed under the first branch of the test. First, the risk must be
real and substantial, well grounded in evidence, posing a serious threat to the commercial interest in
question. Second, the important commercial interest must be one which can be expressed in terms
of a public interest in confidentiality, where there is a general principle at stake. Finally, the judge is
required to 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 commercial interest in
question.
Ratio:
J.L. v. A.N., 2007 QCCS 3226
Facts: JL is seeking damages for supposedly contracting herpes from AN. She (JL) is seeking to use
pseudonyms in the proceedings.
Issue(s): Can JL be granted the use of pseudonyms?
Held: Nope.
Reasoning: Even matters originating in family law with children’s testimony and private medical
information do not guarantee a publication ban. There is a two-step process to determine if a ban if
merited:
 (1) is it necessary to avoid a compelling risk that a trial would be inequitable, and
38

(2) would the beneficial effects of the ban outweigh the prejudicial effects on the free
expression of those who would be affected by the ban.
The current case is not even properly a family law affair. Medical information is not alone to justify
either a publication ban or an in camera hearing. Neither is the sexual nature of the issue, or the
media’s potential interest in the case. The Quebec Charter’s right to privacy does not outweigh the
other interests either. The request for the publication ban was also given late (should have been at
the beginning of proceedings), but that did not change the judgment.
Ratio: Personal or intimate issues do not trump society’s interest in keeping the courts open.
Note: I don’t understand then why the names are initials??! Ans: b/c the case reporter has their own
discretion to use anonymity
‘Super-Injunction, what’s your function?’ – Holly Hall (for discussion)

Super-injunction: an interim action that prevents those against who it is issued and any third
parties who have notice from publishing information which concerns the applicant and is said
to be confidential or private; and publicizing or informing others of the existence of the order
and the proceedings. (Many of the cases where they are used are extra-marital affairs of
celebrities and public figures). Super-injunctions are known to create a tension between the
principles of freedom of the press and privacy
 The growth of social media and the celebrity culture are prompting a re-examination of
privacy laws and media culture in England
 Some prior restraint may be necessary to mitigate invasions of privacy by the press
Evolution of England’s Privacy Law
 The progression of modern privacy law in England began with the signing of the European
Convention on Human Rights and Freedoms Treaty in 1950, which included two articles on
privacy: Article 8: the right to respect for private and family life, Article 10: freedom of expression.
 Campbell v Mirror Newspapers on appeal created the test for breach of privacy: whether a person
had a reasonable expectation of privacy at the time the info was gathered and, if so, how the
Article 8 right to privacy is balanced with the Article 10 right to freedom of expression.
 Mosley Case addressed the issue of prior notification, that for the media to warn the subject of an
upcoming story was an inappropriate remedy to a privacy breach and would have a chilling effect
on the media and harm the opportunity to freely debate matters of public interest. It also
demonstrated the high cost of bringing an action to court
 John Terry Case made the public more aware of the super-injunction and fueled distaste for it. It
caused a dramatic shift in the philosophy of granting privacy injunctions
 A debate was raised in Britain’s privacy law regarding the super-injunction, was it an appropriate
remedy, or ‘unsustainable and unfair?’ (p.326)
Super-Injunctions in Practice
 Hall identifies the super-injunction as ‘judicial censorship’ as it appears to create a ‘secret
justice’ where there is no media scrutiny or inquiry to uncover bias, corruption, or judicial
blunder
 Super-injunctions anonymize proceedings, allow them to be heard in private, and can restrict
access to court documents
 Though super-injunctions can be overturned, appellate courts are unlikely to interfere in
matters of public interest unless satisfied that the trial judge was wrong
 Currently in England there is a lack of statutes or strict guidelines to define what is considered
public interest
39

In 2012 a JCPI committee was charged to address the topic and held there should be no
statute defining either the right to privacy or public interest, and rejected the idea of a
statutory pre-notification requirement. They agreed that social media platforms should be
served with injunction notices, in addition to other media outlets that already get the
notifications. They also found that damage awards for privacy infringement were too low and
suggested courts have the power to award exemplary damages, as once material is
disseminated, the damage is irreparable. Higher damage awards would act as a deterrent to
blatant and provocative breaches of privacy
 Hall highlights a need for more guidance as to what is public interest and what is a breach of
privacy and encourages the consideration of the role of mores and attitudes in deciding what
is in the public interest
 A possible compromise: a ‘short act’ to establish the new press regulator and give it force
and credibility. This regulator could then establish public interest guidelines with enough
specificity to steer media outlets to more informed decisions on whether a story was in the
public interest, without establishing a hard-and-fast definition. To address the issue of prenotification, the JCPI thought this regulator should include in its code of practice a
requirement to pre-notify unless there were compelling reasons not to, rather than making
this a statutory requirement.
 A problem arises in the fact that reporters and journalists don’t have enough facts at the time
of publishing to know if there is an invasion of privacy issue
 Super-injunctions cost a lot to bring to full trial (rather than an interim) and two solutions
have been suggested to offer support to those who could not afford to bring legal actions:
1. Conditional fee arrangements as an alternative method for funding such legal actions. In
this situation a client would pay nothing, or a reduced amount if the case is lost
2. Encourage arbitration and mediation in privacy disputes
Can Super-Injunctions Survive the Digital Era?
 New technologies blur the distinction between private and public life and can be used to
circumvent traditional media. For example, unregulated internet being used as a method to
break an injunction. “Twitter has totally undermined the rule of law” and has led to a
dramatic decrease in applications for injunctions (340).
 Twitter reported it would only comply with a government take down request after receiving a
valid and scoped request from an authorized entity. However even if a tweet was removed,
users around the world would still see it, which begs the question: ‘are super-injunctions even
still viable?’
Conclusions & Recommendations
 The survivability of super-injunctions depends on:
1. the level of regulation (new press regulator should be strengthened)
2. Exercise of the contempt power (to use this power against Twitter to operate as a deterrent
to breaking a super-injunction)
3. The enforcement of the damage award system should be supported with higher fines
4. There needs to me more clarity and knowledge among the public regarding the usefulness
and appropriateness of super-injunctions
5. Internet enforcement: global cooperation of take-down requests from websites
 It is clear that a stronger regulating power is necessary to rein in the tabloid press and ensure
it does not bring real investigative journalism to its knees. Additionally, reforms should
include improvements in the training and education of journalists.
40
People should be fearful of super-injunction derogations from the principles of open justice, however,
remain open to them and the noble purpose they can play when wisely granted to protect someone’s
privacy (347).
Class notes:
Discussion re super injunction article
 What is a “super injunction”?
 Super injunction prohibits not only the act, but also all publication about the injunction
o Trial judge in Dagenais had imposed one of these
o Is granted in camera, is anonymized,
o Trafigura order – binds third parties without notice
 This is weird
 Why would somebody want a super injunction?
o Celebrities to restrain tabloids
o PR issue: trafigura dumping toxic chemicals off cote d’ivoire. People got sick and died.
Report written confirming it was T’s fault. Settled out of court. Report later leaked and T
sought injunction.
o But it hits the internet, MP talk about it Parliament, but Guardian still can’t talk about it!
Twitter takes over…. Injunction effectively over now.
 But also protection of privacy
o QC Charter protection of right to privacy
o CBC case: great deal of concern about the privacy of litigants and witnesses
 The challenge of technology:
o Efficacy of Court Orders. – Dagenais quote “it should also be noted that recent
technological advances have brought with them considerable difficulties for those who
seek to enforce bans”
o Rule of Law issue. Confidence of the Court: Can’t have courts issuing orders that are
routinely not honoured
o General impact of technology on public perception of right to know
 Half of the slap that trafigura took was for getting the super injunction: it’s the
cover up that will kill you
Legislation/Principles/Rules
1. ALI/UNIDROIT Principle 20
2. CCP, arts. 11-16 [art 15=family law matters are always anonymous and usually closed] + QC Charter
art 23
3. ON Courts of Justice Act, RSO 1990, c. C.43, ss. 135-137
The Court System and Subject-Matter Jurisdiction, class 6, Jan
22
Class notes:
Canada’s Court System: Subject Matter Jurisdiction
 Subject matter jurisdiction vs geographic jurisdiction (another topic we will talk about later)
 Question is: where are you going to sue?
o In what court?
o In what jurisdiction? (right now we aren’t talking about this)
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How Canada’s Courts are Organized
 Chart from readings of court structure
 We won’t talk about fed or prov administrative tribunals, military court, tax court
 In order to understand court structure, have to understand the constitution
 “The most important compromise of the fathers of confederation” – Lamer quote
 S 92, s 101, s 121, 96, 99, 100 – impt sections. We will go through them
 Result=complex division between prov and fed authority over judicial institutions and
administration of justice in Canada
 Often, this creates multiple entry courts at the first level – hence the question “where do I sue?”
Constitutional dimensions
 S 92(14): the Administration of Justice in the Province, including the Constitution, Maintenance,
and Organization of Provincial Courts, both of Civil and Criminal Jurisdiction, and including
procedure in Civil Matters in those Courts
o By virtue of this, every single province and territory (except Nunavut), has a provincial
court. They are called different things in different provinces,
o Provinces ae given jurisdiction to crate courts that deal with both civil and criminal
matters. That is interesting, and something to contrast with federal court. Federal Court
only has jurisdiction over things that fall under federal competency. Provincial Court has
jurisdiction over prov ad fed matters.
Provincial Courts
 Ontario Court of Justice = provincial court. Cour de Quebec=provincial court
 What do these provincial courts do? It depends
 Courts of Statutory jurisdiction
o Not just provincial courts. SCC is a statutory court. So is Federal Court.
o Only have the power that statute creating it gives
 Ambit of jurisdictions vary widely across the country from province to province.
 See, eg, art 35 et seq new CCP and s 38 Ontario Courts of Justice Act
o Will see an incredible difference in jurisdiction
o Cour de QC: 3 large volets:
 Criminal division
 Family dimension (adoption, child welfare, youth court)
 Civil jurisdiction (amounts less than $85,000)
o Ontario: basically just criminal and same aspects of family law. NO civil jurisdiction.
 Provincial courts have been dubbed “the workhorses” of the system. They deal with majority of
provincial offenses and criminal offenses for which you don’t need a jury trial.
o Report stats: 98% of all criminal matters are heard by Cour de QC and 80% of civil
matters
 Note vast differences in monetary limits of civil jurisdiction of these courts where civil
jurisdiction exists
Provincial Superior Courts
 Another entry level court
 S 129 constitution: “…all Courts of Civil and Criminal Jurisdiction… existing therein at the Union,
shall continue…. As if the Union had not been made”
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




What was the situation when Canada became a country? Basically, we inherited the English
Royal Court system. The Superior Court of QC pre-dates confederation.
These courts have judges that are appointed federally, and everything about these courts and
judges, is determined federally.
See s 96 (re appointment), 99 (re tenure), s 100 (re salary)
BUT: The buildings, the staff, the stenographers, the bailiffs, everybody else is provincial
So there is a conflict at times between the prov superior courts (“federal” courts), supposedly
uniform across the country, with oversight by a central, federal body, but run by the Province.
o This is a big issue
o Suppose federal govt doesn’t want to pay stenographers anymore. That’s nice, but it
might not come into practice because its’ the provincial govt that actually pays for it.
Nature of these superior courts
 No uniformity in nomenclature. BC Supreme Court. Court of Queen’s Bench. But all superior
courts.
 Most important feature: inherent jurisdiction
o Macmillan Bloedel decision (Lamer) – interesting to read for the way it exalts the
inherent jurisdiction of these courts – says they are fundamental to the rule of law, etc.
o “are the foundation of the rule of law itself. . . . the only court of general jurisdiction and
as such is the centre of the judicial system. . . would maim the institution which is at the
heart of our judicial system”
o Lamer jealously guards this jurisdiction. Says you can NEVER remove jurisdiction from
these courts. You can give it to other courts, but not take it away from these.
 Powers are derived from the very nature of the court as a superior court of law and not from
statute. Doesn’t have to find justification in a statute to do what it needs to do
 Residual source of powers, which the court may draw upon as necessary whenever it is just of
equitable to do so
o R v Caron, 2011 SCC
o don’t have to ask ‘does the superior court have jurisdiction’, instead ask ‘does any other
court have jurisdiction’
 Why is inherent jurisdiction so important? Means courts can do fun things. Two examples:
o Advance costs. Eg. Okanagan, Little Sisters. The idea that sometimes people can’t afford
to take a case of public importance to court and one of the ways we can fund that
litigation is by giving that party advance costs. In other words, make the other party
fund a part of that litigation in the form of costs. Okanagan case – Lebel J created this. In
certain circumstances, we can advance the costs that would normally be granted at the
end of the case
 where did that power come from? No statute, codal article, rule of practice, etc.
It came from “the court’s inherent jurisdiction”
 that’s a very powerful thing that a court can do.
o Anton Pillar order. “nuclear power of the civil law”. It is a civil search and seizure order.
Basically if you have a case against a defendant, a lot of your case is going to depend on
evidence, and if that evidence is in the hands of the defendant, you are going to want to
make sure the D doesn’t destroy it.
 Ex parte order before a judge in chambers. If judge feels there is a serious risk,
there can be an order to have someone come and seize that material –
computers, disks, USB keys, etc.
43


Was created in Britain in a case where one of the parties was named Anton
Pillar
 Where do the judges get it? What section of the code? None. Inherent
jurisdiction.
Judges are supposed to be the “porte parole” of the law (in QC, for eg, when where civilian hat),
that judge has inherent powers.
Federal Court of Canada – Marika clerked for Simpson J
 It’s got its own set of rules
 Lawyers hate having to learn a new set of rules
 38 judges at the FC, 12 at FCA
 It’s weird court bc its jurisdiction is weird
 Constitutional basis: s 101
 1875: SCC created, and Exchequer court, which became federal court
Federal Court jurisdiction
 Statutory and exceptional
 Largely defined by Federal Courts Act
 Constrained by, not co-extensive with, federal power set out in s 91 of the Constitution (QC
North Shore Paper)
o Even though it had all this “federal feel” to it – marine terminal, crown is involved –
despite all of that, court said “this is a k-ual claim, this should be heard in superior court
 Where the FC has jurisdiction, it is almost always concurrent
 Exclusive vs Concurrent Jurisdiction
o Exclusive: JR of federal tribunals; immigration and refugee
o Both exclusive and concurrent: IP
 S 20 of Fed Courts Act – exclusive re registration or validity of a patent,
concurrent=infringement
 Test is: jurisdiction must be conferred by federal law, that law itself must be intra vires,
 Then the question is, where the jurisdiction is concurrent, who gets it?
o Question of preferred jurisdiction (Zolotow)
 Judge stepped in and said, you should move this to Federal Court
 “in the circumstances, we think it was open to the motions judge to exercise his
discretion to find … preferred jurisdiction” -> sounds a lot like the standard of
review from Admin law. Lots of deference. (para 10)
What the FCT actually does
 January to September 2014
 80% immigration & refugee
 87% Judicial Review
 You cannot get a better education in immigration or in JR than at Federal Court
 Really nice registry staff
 Subject-matter expertise
 Strong tradition of case management
What goes where?
 This is a public order issue
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



Value of dispute
Subject matter
Many instances of overlapping or concurrent jurisdction
Move towards ‘unified courts’
How far can jurisdiction of prov courts go?
o Challenged in the 60s (when jurisdiction went from 200-500$)
o First time that jurisdiction started to increase
o Decision rendered: Ref re Magistrates Court of Quebec [1986] SCR 772
o SCC said it was ok. Said we can’t freeze monetary jurisdiction as it existed a century ago.
Small Claims Court
 Is this a way the court structure can address some of the problems with the civil justice system?
 What should its jurisdiction be?
 Should one be allowed legal representation?
o In QC not allowed to go to small claims with a lawyer
o Want to make it a self-represented court
 Who should judges be? Judges with high pay? Other people? In MB you don’t even have ot be a
lawyer. In some juris, not even a full-time adjudicator
 Small claims is a division of Cour de QC. Small claims hears 0-15000, After that regular Cour de
QC
 Does this help?
o Our knee-jerk reaction is that it must.
o Rod MacDonald 1990s demographic study of small claims court litigants.
o Findings: men use small claims court more (2X as many); vast number of people using
system were educated, employed, professionals, business people,
 1/6 of the users of small claims court were lawyers suing their clients for nonpayment of legal fees
 So the court room is really not opening the court room doors to the
disenfranchised
 Small claims court in QC is $15,000 (art 536)
Department of Justice, Canada’s Court System (Ottawa: Communications BranchDepartment of Justice Canada, 2005)
The basic role of courts in Canada is to help people resolve disputes fairly and with justice, whether
the matter is between individuals or between individuals and the state. Most disputes do not end up
in the courts at all. People tend to settle their differences informally but Court decisions provide
guidance on what is acceptable conduct and on the nature and limits of the law.
The provinces and territories are responsible for providing everything necessary for their courts, from
building and maintaining the courthouses, to providing staff. The judges for the superior courts +
supreme court are appointed and paid by the federal government.
Organization of courts has 4 levels
1.Provincial and Territorial Courts: These deal primarily with criminal offences family matters and
traffic violations.
2.Provincial/Territorial Superior Courts and Federal Court
Superior Courts have “inherent jurisdiction” to hear cases in any area except those that are
specifically limited to another level of court. The superior courts try the most serious criminal and civil
45
cases, and cases that involve large amounts of money. The superior court has special divisions, such
as the family division.
Federal Court and Federal Court of Appeal
These are Superior courts with civil jurisdiction. These Courts were created by an Act of Parliament,
and can only deal with matters specified in federal statutes. The Courts’ jurisdiction includes cases
involving Crown corporations. There are specialized Federal courts like Tax Court and Military Court
Jury Trial -Under the Canadian Charter individuals accused of the most serious criminal offences
generally have the right to choose to be tried by a jury. A jury is rarely use in civil litigation
3. Provincial/Territorial Appeal Courts
Each province and territory has a court of appeal. A court of appeal usually sits as a panel of three.
The courts of appeal also hear constitutional questions.
4.Supreme Court of Canada (Highest level)
SCC has jurisdiction over disputes in all areas of the law, including constitutional law, administrative
law, criminal law and civil law. Supreme Court Act requires 9 judges (including chief justice) and must
be 3 from Quebec. SCC must grant “leave” to appeal before it will hear the case. Leave applications
are rarely granted. It is only done if there is a question of public importance; if it raises an important
issue of law or mixed law and fact; or if the matter is significant enough.
New Approaches
The Nunavut Court of Justice- Combines the power of the superior trial court and the territorial court
so that the same judge can hear all cases that arise in the territory. In Nunavut, most of the
communities are small and isolated from the capital of Iqaluit, so the court travels to them “on
circuit.”
Unified Family Courts- Permits all aspects of family law to be dealt with in a single court with
specialized judges and services. They encourage the use of constructive, non-adversarial techniques
to resolve issues, and provide access to a range of support services.
Sentencing Circles- Often used with Aboriginal offenders and victims. Input and advice from the
community is used to help the judge set an appropriate and effective sentence. Involves a discussion
of the offence, factors that may have contributed to it, sentencing options, and ways of reintegrating
the offender into the community. Often the circle will suggest a restorative community sentence
involving some form of restitution to the victim, community service, and/or treatment or counseling.
The judge is not bound to accept the circle’s recommendations.
The Courts and Related Processes
Administrative Tribunals- Administrative rules and regulations relating to employment insurance,
disability benefits, refugee claims, human rights claims ect. are dealt with outside the court system
and less formally by various tribunals and boards.
Alternative Dispute Resolution (ADR)- ADR allows people to settle their differences through means
that are more informal, less expensive, and often quicker than court proceedings. These include
mediation (where an independent third party is brought in to help work out an agreement) and
arbitration (where both sides agree to refer the dispute to the third party for judgment.)
MacMillan Bloedel Ltd. v. Simpson, [1995] 4 SCR 725
Facts: JP, a minor, was charged with contempt of court. He was convicted by the superior court,
despite that he had applied to be tried at youth court. The federal Young Offenders Act states that all
ex facie contempt of court of minors be tried in the provincially run youth court. JP appeals claiming
that he was outside BC Supreme Court’s jurisdiction.
46
Issue(s): Can Parliament, pursuant to its criminal law power, confer upon youth courts the exclusive
power to try youths for contempt ex facie of superior courts?
Held: No, appeal dismissed.
Judicial History: Court of Appeal upheld the decision.
Reasoning (Lamer C.J. for the majority):
 “The historical evolution of the provincial superior courts and their importance to our
constitutional structure require that these superior courts retain the full range of their inherent
contempt powers. While it need not have exclusive jurisdiction, curbing the power of a superior
court to control its own process alters its essence, making it something less than a superior court.
Such an alteration is impermissible in Canada in the absence of a constitutional amendment.”
Para 1)
 2-stage inquiry: 1. Determine if the grant of jurisdiction to youth courts is permissible, 2.
Determine if the removal of jurisdiction from superior courts is permissible (i.e. if exclusive grant
of jurisdiction is okay)
Step 1: Use Residential Tenancies Test – can the power be transferred to an inferior court?
 s. 96-100 and s. 92(14) CA1867 represent a compromise at Confederation between provincial and
federal power over the administration of justice
o s. 96ff would be emptied of effect if a province could make a tribunal that does the exact
same thing as a s. 96 court and then appoint its own judges to it
 First branch of test: does the power conferred on the inferior tribunal conform to a
power/jurisdiction exercised by superior courts at Confederation?
o In this case, contempt was a power exercised by superior courts at Confederation
 Second branch of test: is the power “judicial” in its new institutional setting?
o Yes, it is still a judicial function when being employed at youth court
 Third branch of test: is the power central to the inferior tribunal’s functions, or ancillary to its
general administrative functions?
o In this case, ancillary to the admirable goals of ensuring a process specialized to young
offenders
o The grant of power to the provincial court is fine.
Step 2: Constitutional Consideration – can the power be taken away from the superior court?
 The problem in this case is the exclusivity of the grant to the youth court – must examine the
inherent core jurisdiction of the superior court to see if this power falls within it
 Contempt of court is a sui generis offence – its punishment is the basis of all legal procedure
o Power to punish for contempt flows from the nature of a court itself
 Power to punish for contempt of court falls within the “core” or “inherent” jurisdiction of the
superior court under s. 96
o Superior court, as the central court of Canadian constitutional system and foundation of
the rule of law itself, must have the power to maintain its authority and prevent its
process from being abused/obstructed
 Court maintains that although this “inherent” or “core” jurisdiction of s. 96 courts is hard to
define, it exists and must be considered whenever a statute purports to take away an element of
s. 96 court’s jurisdiction
(L’Heureux-Dubé for the Dissent):
 Government can limit and define superior courts’ inherent powers, provided the conditions of
the RT test are met
 Superior courts could still review and correct youth court contempt decisions
47

The section in question does not erode the powers essential to proper functioning of s96
courts
 Would have allowed the appeal, sending JP to youth court
Ratio: s. 96 courts have a core area of jurisdiction of which they cannot be deprived but by
constitutional amendment.
R. v. Zolotow (2008), 89 OR (39) 321
Facts: The action is a claim by appellant, Mr. Zolotow, for the return of 20 diamonds valued at
$900,000. The diamonds were seized from the appellant by Canadian customs on April 13, 200, under
the Customs Act, on the basis that he had failed to declare the diamonds when he brought them into
the country. Mr. Zolotow states that his recourse is to pursue an action in detinue and that the
Ontario Superior Court of Justice has jurisdiction to determine his action.
Judicial History: The trial judge determined the Federal Court as the preferred jurisdiction for the
advancement of the claim
Issue(s): Did the motion judge properly exercise his discretion to stay the action under s.106 of the
Courts of Justice Act based on his determination that the Federal Court is the court of preferred
jurisdiction for Mr. Zolotow to advance his claim?
Held: The motion judge did not err in staying the action, appeal dismissed.
Reasoning: [O’Connor, Watt, Epstein]
 The jurisdictional issue is an open question for determination. It is agreed that both the
Superior Court of Justice and the Federal Court have jurisdiction over a common law action in
detinue against the Federal Crown.
 In circumstances of concurrent jurisdiction, s.106 of the Courts of Justice Act gives the motion
judge the discretion to determine the preferred forum.
 Here, the motion judge exercised this discretion upon proper principles: he observed that the
Notice of Seizure was evidence that the seizure took place under the authority of the Customs
Act, which is federal legislation.
 Motion judge recognized correctly that the determination of the jurisdiction of the Customs
Act involves an examination of provisions of the Act, and related jurisprudence
 The Federal Court has more experience than the Superior Court of Justice in matters relating
to the Customs Act and related issues.
Ratio: The jurisdictional issue is an open question for determination. It was open to the motion judge
to exercise his discretion to stay the action on the basis that the Federal Court is the preferred
jurisdiction to hear the case.
Quebec North Shore Paper v. C.P. Ltd., [1977] 2 SCR 1054 (headnote)
Facts: Quebec North Shore Paper agreed to build a marine terminal to transport newsprint to the US
and failed to do so. CP sued in the Federal Court for resiliation of k and damages. Quebec NSP said FC
did not have jurisdiction. FC and FCA said they did have jurisdiction.
Issue: Does the Federal Court of jurisdiction under s 23?
Held: No it does not.
Reasoning:
 Have to assess s 23 in light of s 101 of the BNA Act.
 S 23 of the Federal Courts Act reads: “Except to the extent that jurisdiction has been
otherwise specially assigned, the Federal Court has concurrent original jurisdiction. . . . in all
cases in which a claim for relief is made or a remedy is sought under an Act of Parliament or
otherwise in relation to any matter coming within any of the following classes of subjects: . . .
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(c) works and undertakings connecting a province with any other province or extending
beyond the limits of a province.”
 The expression "remedy under an Act of Parliament of Canada or otherwise" in s. 23 cannot
be given a construction that would take it beyond the scope of the expression "administration
of the laws of Canada" in s. 101.
 QC law is not Federal law. FC only has jurisdiction over Federal laws.
Ratio: Federal Court only has jurisdiction over Federal laws
Legislation
1.
2.
3.
CCP, arts. 8, 10, 33-39 (juris of sup ct; exclusive juris over Class actions and injunctions), 49 (powers
of cts and judges)
 Art 35: Provincial court = less $85,000; art 36: municipal taxes; 37: adoption; 38: mental
health and confinement; arbitration
ON Courts of Justice Act, ss. 11, 22-23, 34, 38, 106
Federal Courts Act, ss. 17-26
Appellate Courts and their Jurisdiction, Class 7
Appellate Courts and the Standard of Review
 Guest lecturer: Justice Allan Hilton – QCCA
Appellate Courts
 Diagram misleading – provincial court decisions not necessarily appealed up to Superior Courts
(?)
 Superior Courts can exercise judicial review powers over lower courts but that’s not an appeal
on the merits
o Superintending/reforming (judicial review) v appeal (art 34 CCP)
 Courts of appeal all s. 96 courts – federal
 Appeals normally go to courts of appeal (rather than superior)
Key features of appellate system
 Balancing conflicting policies
o E.g. error correction v finality of judicial decisions
o Cost, time, legitimacy of trial courts if everything appealable (speed bump?)
o What will be allowed automatically (as of right) or with leave of the court?
 Two extremes – France v Canada
 In France, appeals are de novo – new evidence can be led
o 28,000 cases a year
 What can never be appealed?
o QC – Small Claims Court decisions never appealed
o ON – Small Claims under $2,500 can’t be appealed
 Quebec
o Appeals as of right
 Cases involving over $60,000 (whether decided by Cour du Quebec or Superior
Court)
 Subject matters: e.g. family law (s. 21 Divorce Act)
o Appeals with leave:
 Art. 30 CCP – should grant leave when question is of principle, raises new issue,
raises issue that gives conflicting decisions
49

Ontario
o Different, bizarre?
o Divisional Court
 Notionally separate court but not really, because every judge on Superior Court
also sits on Divisional Court – in appellate capacity, in 3s
 So Superior Court judges also sit in appellate capacity
 Hears appeals (as of right) below $50,000
 4th layer of appeal – exceptional
o Court of Appeal (s.96)
 Appeals as of right over $60,000
 Appeals from Divisional Court with leave
Role of trial/appellate court
 Appellate courts: delineate and define legal rules, ensure their universal application
 Trial courts: resolve individual disputes based on facts before them and settled law
o So many different decisions trial judge makes in trial
 Everything from pure questions of law to pure questions of fact
 Inferences from fact, mixed fact and law (e.g. finding of negligence)
 Standard of review
o What level of deference must appellate judge pay to trial judgment?
o Policy decision
 Error correction, rationalization and efficiency of justice system (finality),
promotion of legitimacy/integrity, different role?
o Housen
 Questions of law: appellate courts have total leeway – they’re the lawmakers
 Factual findings: large deference, almost sacrosanct “palpable and overriding
error”
 Middle: majority and minority split
 Majority takes minimalist view – mixed questions of fact and law also
given great deference
o Did H.L. change test to unreasonableness standard? Pape and Adair
 Most people believe it didn’t change the law
o How to fit issues along the spectrum?
 E.g. Sattva Capital Corp v Creston – contract interpretation
Justice Allan Hilton
 More than 2000 trial judges – more than 90% of full time judges
 Approx 150 appeal judges
 Appellate courts act only on statutory provision that provides for right of appeal – e.g. CCP,
Divorce Act
 Contrast to inherent jurisdiction of Superior Courts
 There are mechanisms to dismiss appeals that present no reasonable prospect of success
(includes appeals of right ?)
 Declaratory judgments give right to automatic right of appeal (e.g. seeking to strike down a
provision)
 Interlocutory judgment – missed this
50









Getting leave to appeal – have to show that case has potential impact to explain or clarify the
law – beyond simply the interest of the parties before court
o Give leave if would present large injustice ?
o Leave will be refused in cases where trial judgment wrong
o Will grant leave in cases where trial judgment is clearly correct but want judgment to
have broader precedential impact
Jurisdiction extremely broad
o Most appeals (approx 60%) dismissed
o Most leave applications (80%) dismissed
 Basically only control they have over their docket
 Have to hear anything for which an appeal exists
 Typically, 1 judge hears 160-200 appeals a year
 But not all of them are difficult cases
 Also hear other motions
Appellate judges must be generalist
Process different from trial
o Proceeds on trial records – written pleadings, relevant transcripts, exhibits, judgment
o On very limited circumstances, can introduce new evidence
 Two requirements:
 1. Was unavailable unrelated to negligence of counsel
 2. If introduced, evidence would have determinative effect
 Still wouldn’t see witnesses in court though
o Approx 10,000-12,000 pages a week at least
To what extent does oral advocacy make a difference?
o Very little!
o But factum is super important
o Go into cases with open mind, but not closed mind
Job is to review judgment for reversible error, not to re-try case
o Not another kick at the can, can’t present same case as at trial
o Focus is the judgment
What can they do with something that’s incorrect?
o SCC makes it virtually impossible to intervene with determinations of fact
Trial judges’ function – search for truth (contrast with appellate search for error)
o Work mostly starts once trial begins – don’t have lots of preparation time
o Case unfolds in front of them
o See and hear witnesses (though sometimes proceed on transcripts)
o Can evaluate witnesses, ask questions, evaluate memory, evasiveness etc
o Often have to resolve diametrically opposite versions of events, cannot avoid decision
o Evaluate normal witnesses but also expert witnesses – are they even qualified?
o Inferences of fact – e.g. if someone knew something, would she have acted differently?
o Adjudicating objections as to admissibility of objections
o Self-represented litigants – even in criminal jury trials – how to deal with this
 Often declared vexatious litigants – until so declared, can create havoc
So fundamental for trial judge to make reasoned findings of fact to avoid appellate judges
o Some problems:
 Judge recites the evidence without making fact-finding
 Most extreme sanction: vacate judgment, return to superior court
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


Judge doesn’t make findings of fact because of legal issue, e.g. prescription but
is wrong on legal issue
 Poorly reasoned findings of fact
 Judge relies on evidence that should have been excluded
 Can disregard evidence, make decision
 Or vice versa – judge excludes evidence that should have been included
o Trial judge’s finding of fact treated with same degree of deference even when trial
judge’s finding based on transcripts
Sentencing case L.M.
o Accused convicted of sexual assault on his toddler, child porn
o SCC: essentially doesn’t matter what the appellate judges thought, it’s about what the
trial judge thought – as long as there’s some rational basis
“Palpable and overriding error” rarely succeeds
o Housen and H.L. are consistent with jurisprudence
o Discouraging appeals
o Housen at para 5 - “clear to the mind and plain to see”
 If you have to interpret evidence, it’s not clear and plain
 Has to jump off the page – point to the place, exactly
o Examples?
 Confusing the date of a document with date of document’s reception where
intervening event is relevant
 Misunderstood meaning of a symbol in a medical chart
o Means appellate courts have to confirm judgments that are wrong
Yves-Marie Morissette, « Aspects historiques et analytiques de l’appel en matière civile »,
(2014) 59(3) McGill LJ 481 (excerpt)
III. Some analytical and current aspects of the appeal
The procedural system in force in Quebec is part of the Anglo-American tradition.
The basic problem of review or appeal is how to avoid doing everything over again—which
would be a tremendous waste—but at the same time make sure that lower-court mistakes are
corrected.
In France, civil justice is administered by a judicial hierarchy of three levels:
 First instance, the first level appeal, second level of appeal (cassation)
 In French law, the dynamics of civil appeal is that of a "trial de novo"[new trial]
In quebec it would be rare to rehear hear all the evidence, including testimony, on appeal, and be
able to add new elements.
 In Quebec a party can make a new argument at the appellate level that was not made at trialprovided that this doesn’t require filling new inadmissible evidence.
 In France, one must stick to the original legal arguments made at first instance, but can adduce
new evidence to support those arguments.
A. Three different modes of revision
 There are three ways of conceptualizing the margin of desirable intervention of a court of
appeal; too much, too little, just right.
 In France, the appeal is basically a full re-trial. There are procedural differences that make this
less crazy than it seems: The place given to oral pleadings, the law of evidence and especially
the administrative rules of evidence differ. It is much easier in French law to enforce an idea of
proportionality at trial. The file that is heard and presented at first instance is already shortened
52
since the French system does not allow the array of resources that characterize here some civil
trials here.
 In France there are external procedural constraints for bringing an appeal, so a “re-trial” will
usually not be characterizes as being a waste, like it would be here
C. The fact and law in cassation
 The distinction between fact and law is paramount in the French judicial system. The Cour de
cassation deals exclusively with question of law, and questions of fact are reserved for
lower courts.
 For example legal rules governing contracts such as object and consent, are questions of law.
This extends to rules of proof of the existence and content of the contract.
 However, the interpretation of the contract itself is factual. The trial and appeal judges have a
sovereign power to interpret the contract, and determine the existence of obligations of the cocontractants. It is their prerogative to determine the common intention of the parties when the
contract itself may be silent or ambiguous.
 In Quebec the interpretation of contractual terms is a matter of fact, and an error of the trial
judge will only be reversed if it is palpable and overriding.
 Common law doesn’t seem too concerned by this. There is a House of Lords judgment saying
interpretation of k is a question of law.
Housen v. Nikolaisen, 2002 SCC 33 (excerpt)
Facts: The appellant was a passenger in a vehicle operated by N on a rural road in the municipality of
Shelbroke. N failed to negotiate a sharp curve on the road and lost control of his vehicle. The
appellant was rendered a quadriplegic as a result of the injuries he sustained in the accident. There
were not signs on the road, and there had been previous accidents in that same location. The TJ
awarded 35% of the liability to the municipality for failing to have a sign on the road (and 15% to H for
accepting a ride from drunk N, and 50% to N for driving drunk). The Court of Appeal overturned that
decision, saying the municipality was not negligent.
Issue(s): Was the Court Appeal correct to overturn the TJ finding of municipality negligence?
Held: No.
Reasoning: (The case reads more like a textbook than a case.)
Iacobucci & Major JJ (for McL, LHD & Arbour): “A proposition that should be unnecessary to state is
that a court of appeal should not interfere with a trial judge’s reasons unless there is a palpable and
overriding error. The same proposition is sometimes stated as prohibiting an appellate court from
reviewing a trial judge’s decision if there was some evidence upon which he or she could have relied
to reach that conclusion.”
The standards of review relevant to the following types of questions:
(1) questions of law;
The standard of review on a question of law is that of correctness for reasons of
a)
Principle of Universality says that the same legal rules should apply in same factual situations
b)
Law-making role of appellate courts
(2) questions of fact;
The standard of review on a question of fact is “palpable and overriding error” for reasons of
a)
Limiting the Number, Length and Cost of Appeals
b)
Promoting the Autonomy and Integrity of Trial Proceedings
c)
Recognizing the Expertise of the Trial Judge and His or Her Advantageous Position
(3) inferences of fact; and
The standard of review in coming to a factual conclusion based on accepted facts, is palpable and
overriding error for the reasons above. The CA made a distinction between questions of fact and
53
inferences of fact that the SCC does not think is justified. Para 23: “It is not the role of appellate courts
to second guess the weight to be assigned to the various items of evidence”. And the reasons to
havae deference to a TJ go beyond the TJ’s position of being able to hear directly from witnesses.
There are important policy reasons as well. The dissent from Bastarache J. differs on this point,
suggesting the standard is reasonableness.
(4) questions of mixed fact and law.
This comes when you apply law (like a standard) to facts. Sometimes what appears to be a question of
mixed fact and law is really a question of pure law. This is tricky. The standard of review in matters of
mixed fact and law lie along a spectrum from palpable and overriding error in most cases of
negligence to correctness. This is principled and balanced by the weight of fact vs law.
Bastarach J (for Gonthier, Binnie, & Lebel JJ):
Ratio: the standard of review for negligence is palpable of overriding error
Paul J. Pape & John J. Adair, “Unreasonable Review: The Losing Party and the Palpable and
Overriding Error Standard”, (2008) 27(2) Advocates’ J. 6
Introduction
 “Justice must not only be done, but must be seen to be done”
o About the losing party and is the basis for many of the losing party’s rights, e.g. the
right to be heard, to have reasons, etc
 This concern for the losing party is arguably overlooked when defining and applying the
standard of review on appeal – “palpable and overriding error”
 This article examines the standard of appellate review in the context of two principles:
1. The Court of Appeal is a court of justice
2. Justice (and perception of it) is a matter of process
 Argues that the proper standard should be reasonableness
The Supreme Court of Canada Speaks: Housen and H.(L.)
Housen v Nikolaisen
 Standard for review of law is correctness
o Because appellate courts serve a broad, law-making function
 Standard for questions of fact, inferences drawn from facts, and questions of mixed fact and
law is palpable and overriding error
 Majority chooses this because of the limited role of appellate courts – they are not supposed
to re-try the case
 Dissent wanted a reasonableness standard
 Two principles:
1. Appellate courts cannot overturn findings of facts “if there was some evidence upon
which he or she could have relied to reach that conclusion” (in Housen)
 Authors interpret this as being “any evidence”
2. Review for reasonableness is insufficiently deferential
H.(L.) v Canada (Attorney General)
 SCC purports to affirm Housen but complicates this by saying other expressions are equally
appropriate:
o Appellate courts can review “where the trial judge is shown to have committed a
palpable and overriding error or made findings of fact that are clearly wrong,
unreasonable or unsupported by the evidence”
54
o
Although H.(L.) treats “unreasonable” and “unsupported by evidence” as functionally
equivalent to “palpable and overriding error”, this is highly questionable, especially
since Housen distinguished very clearly between reasonableness and palpable and
overriding error
Ontario Court of Appeal – Applying Housen and H.(L.)
 In Peart v Peel, Doherty J.A. interprets H.(L.) as fundamentally changing the standard from
palpable error to reasonable – expansion of ability to intervene
 Doherty J.A. provides examples that could produce an unreasonable finding:
o Failure to consider relevant evidence, misapprehension of relevant evidence,
consideration of irrelevant evidence, finding based on no evidence, inference which is
speculation
 Not clear yet whether the Court will fully embrace Peart
 “Palpable and overriding error” creates a hands-off mindset while “reasonableness” invites
more probing
The Proper Approach
The Purpose of the Court of Appeal
 The standard for review ought to be determined with the understanding that the Court of
Appeal is fundamentally a court of justice
o Justice must be both done and seen to be done
 This is about the perspective of the losing party because the winning party
will rarely complain
 Basis for many rights, e.g. right to reasons, etc
Appellate Review Should be on a Reasonableness Standard
 A losing party is more likely to be satisfied with a reasonableness standard for review of facts
 Many judges already approach appeals this way
 Implications of a reasonableness standard:
o Cast aside principle that where there is “some evidence”, a finding can’t be
overturned
 Judge can believe 1 witness over 100 witnesses but finding must be
reasonable
o Appellate courts must review evidence and provide reasons for deciding whether a
finding is reasonable or not
o Opponents argue this would increase the number and length of appeals
 But most appeals are fact-driven anyway
Reasonableness enhances the mandate of appellate courts
Legislation/Principles/Rules
1.
2.
3.
4.
ALI/UNIDROIT Principle 27
CCP, arts. 29-32
ON Courts of Justice Act, ss. 6, 8, 18, 19
Supreme Court Act, s. 3, 35-43
Judicial Appointment and Independence, class 8
Class notes:
Judicial Independence and Impartiality
 Two big topics, but hard to make stark distinction between the two
 Two pillars of judicial system. Probably 2 of the most important values. We find them many
places:
55




o 11(d) const’n
o Unwritten const’l principles (Lamer in Pei Ref)
o Soft law instruments – Bangelore principles
The values that seek to ensure public confidence in judicial system
One of the reasons open court principle is important is so that we can see judicial independence
and impartiality
Quote: Lady justice is blind not because she ignores the facts and circumstances of individual
cases, but because she shuts her eyes to all considerations extraneous to the particular case
Note: in Austria, lady justice is not depicted as blind
What is the difference between independence and impartiality?
 Lamer in PEI reference:
o Impartiality is judge’s state of mind (not prejudiced or biased, open to accepting
arguments by either of the parties)
o Independence : focused on status of the court or tribunal in which the judge works.
External conditions which allow the judge to be impartial.
Judicial Independence and Judicial appointments
Ways to become a judge
 Appointed by government. This is the case for all s 96 judges.
o We inherited this practice from Britain
 Trained judges (Ecole do la magistrature in France))
o Go to school and apply for the job (France). Judges are young in this system (like, 26). In
Canada, average age is about 56. Generally don’t see judges appointed before age 45
o Judges in France are viewed much more as bureaucratic, government employees. Not
the same stature as here/in Britain.
o Is it problematic to not have as much esteem? First instance decisions are not given the
same deference
 Elected judges (US)
o Not all judges are elected in the US. Only state court judges.
o Youtube video: a slam video Peter Goodwill election video
 Link between appointment process and independence
Characteristics of Independence
 PEI reference case=one of the most important cases
o Also an NB case that is important
o But PEI good for the way it explains things
o Lamer says: sometimes ind. relates to the institution of the court/other times to the
judge as an individual
 Perception of bias just as important (maybe more important) as actual bias
 3 aspects highlighted in PEI Ref:
o Security of tenure
o Administrative independence
o Financial Security
Security of tenure
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Different ways to conceive of the tenure of a judge
o Here: appointed to 75. Judges as to retire at 75. Some people are questioning that,
saying that 75 is still pretty young in these days. Lots of judges are retiring and then
getting new jobs, sometimes working as arbitrators and mediators, or sometimes in law
firms.
o US: SCOTUS, appointment for life.
Appointment for life (or until 75 years of age) is said to enhance independence
o Why does this enhance independence?
 Don’t have to worry about not pissing off the people re-appointing you (note:
The govt is one of the biggest litigators in our courts)
Why might we prefer term appointments (Posner)?
o Posner says term appointments are good because it helps get rid of judges who are
shirking.
o But if renewable terms, issue of independence
o What about non-renewable terms?
Link to appointment process – what if judge is elected?
o Short piece showing how bad this is for judicial independence
Administrative Independence
 Courts should be administered by courts (potentially problematic in Canada where s 96 courts
are administered in some aspects by provincial govt)
 Separation of powers: Courts must be independent of the other branches of govt
o Courts must be free to rule against govt
o Nice to say that, but who pays the judges? The govt
o This is why the PEI case is so interesting
Financial security
 Problem: if govt is appointing and paying the judges, how are they independent
o S 100 constitution says govt pays salaries
 What happened in PEI reference?
o Not enough money in provincial govt coffers. Wanted to cut all govt employee salaries,
including judges. Judges were not pleased. They made the argument that govt couldn’t
do that bc it would impact judges independence. Goes all the way to SCC.
 Basic minimum level of remuneration (to avoid perception of susceptibility to pressure)
 1997 PEI Reference: independent “judicial compensation commission”
o Is govt bound to accept the recommendations of this body? Court says govt has to
justify ignoring it on the basis of rationality
o And in fact this has happened several times in Canada, on Prov and Fed level
 2005 Prov’l court judges ass’n of NB: is exactly this case. Govt didn’t follow recommendation.
o govt can depart from recommendation if legitimate reasons
o AND the decision can be subject to JR (bc it is an administrative decision)
 This case raises impartiality issues: how can a judge rule on this?
 At the s 96 level, s 26 Judges Act provides for a “Judicial Compensation and Benefits
Commission”
o So PEI reference ensures a similar body at provincial level
 Posner on judicial salary:
o Monopsony
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Competition – private judging
Raising salaries won’t ever compete with salaries of commercial lawyers
Lawyer salaries ensure people applying for judgeships really want the job
“judicial salaries are now well behind those of deans and professors” – not true in
Canada lol
Other aspects of Independence
o Decisional Autonomy
o Which is ensured by Judicial Immunity
o If a lawyer screws up, they can be sued by their client
o “He should not have to turn the pages of his books with trembling fingers, asking himself “If I do
this, shall I be liable in damages” – Lord Denning
Linking Independence with the Appointment Process
o Political motivation for appointments
o This came up in a QC appointment
o Bastarache Commission (in our materials)
o The part we don’t have is the first: inquiry was started bc of an allegation about the
appointment of a QCCA judge
o How to protect independence in that process?
Independence and Appointment in Canada
o Federally: Judicial Advisory Committee
o Bastarache commission recommends something similar for province
o Many recommendations were passed into regulations
o But who sits on the committee?
 Some government, some judges, some members of the bar, some public?
 2006: Harper caused a big uproar when he changed the membership of this
committee to include law enforcement – police (part of tough on crime agenda)
 8 members: the bench, the bar, the law enforcement community (added in
2006), and the general public
o The report : Merit (not political allegiance) should drive judicial appointments, there should be
more transparency about how this happens, greater diversity
o S 25 of the regulations: give requirements
o Only information we have on diversity on public websites is division of men and women on the
bench: about a third
o That’s not so much the worry. But it is concerning (and has been noted in media) that
recent appointments have not been very good for this
o Issue of merit:
Very difficult to find information re minority representation on the bench.
In electoral system, does it help to forbid judicial candidates to personally ask for money? (WilliamsYulee v the Florida Bar, heard by US SC Jan 20, 2015)
o Sample problem for next class
o Vernon Palmer, law prof in Louisiana. Mixed jurisdiction guy. Did an empirical study of a set
number of judges in L, by name, who were elected. Looked at 14 year period, followed 7
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o
justices, tracked the cases in which contributors to those judges campaigns came before them in
court.
o Looked at when judges recused themselves
o Also when judge ruled in favour of contributor
o The recusal of American judges: judges were not recusing themselves And in most cases,
judicial voting patterns sharply favoured the contributors interests
One thing states have done: banned personal solicitation of contributions by judges. (their staff
can ask, but judges can’t)
o Judges have challenged this ban, saying it violates free speech
Appointments at Supreme Court Level
o 2 issues:
o 1. Who is eligible (Nadon reference. See also Mainville QCA Dec 2014)
 Appointing Nadon from Federal Court judge to SCC to fulfill QC spot.
o 2. Should there be a “confirmation hearing”?
 It was Harper who instituted the confirmation hearing, but only one judge has
gone through it (Rothstein). Cromwell was appointed after Rothstein, but he
was appointed on the eve of the dissolution of parliament and when harper
govt was re-elected, they didn’t do it. And it hasn’t been done since.
o Mainville judgement – Dec 23, 2014, saying s 98 of constitution vs s 6 of SC Act
 QCA says that s 98 does not have the same restrictions as s 6 of SC Act,and
Mainville can be appointed from federal court to Quebec court
Bastarache Commission, Executive Summary, (excerpt, §4.1-4.2.1)
Principles and Values: Judicial appointment should be based on merit, not political allegiance.
Selection criteria is vague but uniform. Political accountability of judicial appointment is important (ie
should not be moved to a committee who is not democratically accountable). There is absolute
governmental discretion in appointment (big criticism of the system). Some limits on the power
should be put in place, such as full transparency and citizen participation. Also need formal criteria
and executive discretion should be limited to a qualified short list. Need more diversity among judges.
Recommended Improvements: Should create a secretariat for the appointment and a standing
selection committee to identify those for the Cour du QC and municipal courts.
Process for Cour du QC & Municipal Courts: Recommends a significant overhaul. Creation of a
secretariat for judicial selection and appointment. Creation of a committee to appoint members of
the public. Creation of a standing selection committee. Composition of standing selection committee:
made up of a National Assembly committee, members of the judiciary, the Barreau and the public.
They would be appointed for three year term, but starting at different times. Members would receive
specialized training. Standardized applications for candidates that would canvass political association.
Flexible criteria. Should recommend three candidates, one of which the executive would appoint.
Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21 9 (excerpt)
Facts: Marc Nadon, a judge of the Federal Court of Appeal and formerly a member of the Quebec bar
for more than 10 years was named a judge of the SCC for the province of Quebec. S6 of the Supreme
Court Act (the “Act”) specifies that at least 3/9 judges appointed to the SCC “shall be appointed from
among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from
among the advocates of that Province”. Nadon’s appointment was challenged on the basis that he
was not currently a member of the Quebec bar, and did not sit at the Superior Court or Court of
Appeal of Quebec. The following questions were referred to the SCC under s. 53 of the Act.
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Issue(s): (1) Can a person who was, at any time, an advocate of at least 10 years standing at the
Barreau du Québec be appointed to the SCC from Quebec pursuant to ss 5-6 of The Act?
(2) Can Parliament enact legislation that requires that a person be or has previously been a barrister
or advocate of at least 10 years standing at the bar of a province as a condition of appointment as a
judge of the SCC?
Held: 1. No 2. Parliament can make changes pertaining to the maintenance of the Courts, but it
cannot enact legislation that would fundamentally change the Supreme Court or its structure.
Reasoning: (Majority 6:1)
Section 5 of The Act creates four groups of people eligible for appointment: current and former
judges of a superior court and current and former barristers or advocates of at least 10 years standing
at the bar. But s. 6 imposes a requirement that persons appointed to the three Quebec seats must, in
addition to meeting the general requirements of s. 5, be current members of the listed Quebec
institutions. Thus, s. 6 narrows eligibility to only two groups for Quebec appointments: current
judges of the Court of Appeal or Superior Court of Quebec and current advocates of at least 10
years standing at the bar of Quebec. Justice Nadon was not a judge of the Court of Appeal or the
Superior Court of the Province of Quebec and therefore was not eligible for appointment on that
basis.
The goals of s6 are (i) to ensure civil law expertise and the representation of Quebec’s legal
traditions and social values on the Court, and (ii) to enhance the confidence of Quebec in the Court.
S 6 has remained consistent since its enactment in 1875 and it has always excluded former advocates.
The Act must be interpreted in a broad and purposive manner and understood in their proper
linguistic philosophic and historical context. Section 6 retains its original meaning and excludes the
appointment of former Quebec advocates to the designated Quebec seats.
Under s. 41(d)of the Constitution Act, 1982, any amendment in relation to the composition of the
SCC may only be made by proclamation issued by the Governor General under the Great Seal of
Canada authorized by resolutions of the Senate. [Note: this part was not really covered in the excerpt
we were assigned]
Dissent (Moldaver J): Both current and former members of the Quebec bar of at least 10 years
standing, and current and former judges of the Quebec superior courts, are eligible for appointment
to a Quebec seat on this Court. Sections 5 and 6 are inextricably linked. To suggest that Quebec
wanted to render ineligible former advocates of at least 10 years standing at the Quebec bar is to
rewrite history. Imposing the additional requirement of current membership at the Quebec bar does
nothing to promote the underlying object of s. 6 and leads to absurd results.
Ratio: Under s6 Eligibility for Quebec appointments is restricted to current judges of the Court of
Appeal or Superior Court of Quebec and current advocates of at least 10 years standing at the bar of
Quebec
Comment: the decision upholds an important component of federalism by protecting the fundamental
role of the provinces and territories in changing aspects of the Constitution such as eligibility for
appointment to the SCC.
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J.A. Lanzinger, “A Personal Reflection on Judicial Elections”, (Summer 1998) The Provincial
Judges Journal 13-20
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Lanzinger is an American judge detailing her experiences on election.
She finds it is much easier to get elected unopposed. His career depends entirely on the
whims of the often uninformed electorate. His experience is in Ohio. To run for the position,
you must have been a practicing lawyer for 6 years. Efforts have been made to change from
elections, but the lobby is strong in keeping the status quo.
Campaign spending is capped, but campaigning, generally, is a struggle. (Hobby lobby came
after, so unsure if that is still true.) She is concerned about appearances that these campaign
donations are seen as bribes.
Judicial independence is challenged when campaign donors are now advocates before him in
court. And knowledge that unfavourable decisions can come back to haunt him temper his
judgements.
Judges cannot discuss the issues when they are campaigning. This leads to an uninformed
electorate who decide on superficial features. This is exacerbated by voter apathy. Less than
30% vote for appellate judges.
Campaigning takes a personal toll. Especially in a profession where the astute judge is often
one who is more introverted. It requires an entirely different set of skills than the job itself
demands.
A positive is that is forces her to meet everyone in the state. This forces her to hear differing
views and get a global sense of the values people hold.
But that’s not the same story for everyone.
Federal judges enjoy lifetime appointments by virtue of Article III of the Constitution.
Also, 34/50 States also offer merit selection term positions.
R. Posner, How Judges Think (Cambridge: Harvard University Press, 2008) (excerpt)
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Ch. 6: Altering the Environment: Tenure and Salary Issues
Two things which get brought up a lot: what would happen if we imposed term limits on
federal judges (which would require constitutional amendment); or if we increased their
salaries
Life penalty guarantees independence, but invites abuse (no consequence for shirking)
Renewable fixed term would be bad, because that would compromise judicial independence
But a non-renewable fixed term might be ok. Drawbacks: judges might be distracted by
thinking about future jobs after their term is done; might be motivated to make decisions
based on future career opportunities; a fixed term would also increase Presidential power to
“stack” the judiciary politically.
The Supreme Court is especially political, which means having life tenure there is particularly
problematic
Courts in other countries have fixed terms. They don’t seem to have problems. Makes
appointments less controversial.
The idea that people perform less well as they age is a bad one. Posner says judges in the US
perform very well even into their eighties.
Salary: Chief Justice Roberts recently released a report calling for increase in salary of federal
judges. Is this necessary? How do we tell?
US judges make about half what British judges make ($162,200 for circuit judges and
$175,100 for Circuit judges)
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If low salaries drive judges to resign, that would be bad. But if judges would rather have a
higher income in private practice, maybe they aren’t very good judges.
Judges salaries tend to increase in leaps and bounds. Stay steady (decrease with inflation) for
many years, then have a BIG increase.
At the moment, they are below the salaries of law school deans. And even below the salaries
of first year associates at New York law firms.
Hard to say the wages are “too low” when there is no shortage of judges. Hard to tell if
people with poor qualifications are applying to be judges, but it is clear that lots of people are
applying.
Also, few judges resign.
Roberts fails to consider other compensation judges receive. Like being able to teach. Having
a generous pension. The job is both less taxing and more interesting that regular legal
practice. Judges have power (both over individual parties, and in shaping the law), which
some people find very satisfying. When judges publish things, people listen. They are not at
the beck and call of clients. They receive deference
Judicial positions are a monopsony (opposite of monopoly=no competition on the buyer’s
side)
Raising salaries will not attract more commercial lawyers to federal judgeships because the
drop in salary will still be too great, and the commercial lawyer will likely not want to sit on
criminal trials
Posners says low salaries operate as a screening device: only people who really want to be
judges will take the pay cut. And we should want people who are eager.
There are two things to be concerned about if more federal judges are resigning: (1) we want
experienced judges, so we don’t want high turnover (2) could mean people find the job less
attractive and we have a less qualified applicant pool.
o But Posner really doubts either of these are real problems
One argument people make is that if people are paid too low they will want to slack off in
order to “take revenge”.
Ultimately, Posner says judicial wages should be raised at a regular, steady rate,
somewhat consistent with cost-of-living (plus something like 2%). He also says there
should be a cost of living differential so that judges living in more expensive places will
get more money than judges living in less expensive places.
Reference re Remuneration of Judges of the Provincial Court (PEI), [1997] 3 SCR 3 (excerpt)
Facts: P.E.I., as part of its budget deficit reduction plan, enacted the Public Sector Pay Reduction Act
and reduced the salaries of Provincial Court judges and others paid from the public purse in the
province. Following the pay reduction, the constitutionality of their proceedings in the Provincial
Court was challenged, alleging that as a result of the salary reductions, the court had lost its status as
an independent and impartial tribunal under s. 11(d) of the Charter.
Judicial History: With respect to the two constitutional questions asked to determine whether the
Provincial Court judges still enjoyed a sufficient degree of financial security for the purposes of
s. 11(d): the Appeal division of the Supreme Court found Provincial Court judges to be independent,
concluding that the legislature has the power to reduce their salary as part of an “overall public
economic measure” designed to meet a legitimate government objective. With respect to all three
elements of the judicial independence of the Provincial Court; financial security, security of tenure,
and administrative independence: The Appeal Division answered most of the questions to the effect
that the Provincial Court was independent and impartial but held that Provincial Court judges lacked a
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sufficient degree of security of tenure to meet the standard set by s. 11(d) of the Charter because s.
10 of the Provincial Court Act made it possible for the executive to remove a judge without probable
cause and without a prior inquiry.
Issue(s): (1) Whether the constitutional home of judicial independence lies in the express provisions
of the Constitution Acts, 1867 to 1982, or exterior to the sections of those documents. (2) Whether
and how the guarantee of judicial independence in s. 11(d) of the Canadian Charter of Rights and
Freedoms restricts the manner by and the extent to which provincial governments and legislatures
can reduce the salaries of provincial court judges.
Held: Appeal allowed in part: there is constitutional protection of judicial independence and
impartiality for all judges.
Legal Reasoning – Lamer CJ:
Where does the constitutional home of judicial independence lie?
 The express provisions of the Constitution Act, 1867 and the Charter are not an exhaustive
written code for the protection of judicial independence in Canada. Judicial independence is
at root an unwritten constitutional principle, in the sense that it is exterior to the particular
sections of the Constitution Acts. The existence of that principle, whose origins can be traced
to the Act of Settlement of 1701, is recognized and affirmed by the preamble to the
Constitution Act 1867. It is in that preamble, that the true source of our commitment to this
foundational principle is located.
Section 11(d) of the Charter & its Principles
 S.11 (d) is the Charter’s guarantee of impartiality and judicial independence, however, it is a
right of limited application and only applies to persons accused of offences. Despite s. 11(d)’s
limited scope, there is no doubt that the appeals can and should be resolved on the basis of
that provision.
 Valente laid down the interpretive framework for s. 11(d)’s guarantee of judicial
independence and impartiality. Impartiality was defined as “a state of mind or attitude of the
tribunal in relation to the issues and the parties in a particular case” (p.9). It is tied to the
traditional concern for the absence of bias, actual or perceived. Independence focuses on the
status of the court or tribunal. In particular, the independence protected by s. 11(d) flows
from the traditional constitutional value of judicial independence, which is defined in terms of
the relationship of the court or tribunal to others, particularly the executive branch of
government. The independence protected by s. 11(d) is the independence of the judiciary
from the other branches of government, and bodies which can exercise pressure on the
judiciary through power conferred on them by the state.
 In addition, the court or tribunal must be reasonably perceived as independent. The reason
for this additional requirement is that the guarantee of judicial independence has the goal not
only of ensuring that justice is done in individual cases, but also of ensuring public confidence
in the justice system. This perception must be that of the reasonable and informed person.
 There are three core characteristics of judicial independence: security of tenure, financial
security, and administrative independence. These should be contrasted with the two
dimensions of judicial independence: the individual independence of a judge and the
institutional or collective independence of the court or tribunal of which that judge is a
member.
 Financial security has both an individual and an institutional or collective dimension. Valente
only talked about the individual dimension of financial security, when it stated that salaries
must be established by law and not allow for executive interference in a manner which could
affect the independence of the individual judge. In order to determine whether financial
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security has a collective or institutional dimension, and if so, what collective or institutional
financial security looks like, we must first understand what the institutional independence of
the judiciary is.
 Institutional independence: Arises out of the position of the courts as organs of and
protectors of the Constitution and the fundamental values embodied in it — rule of law,
fundamental justice, equality, preservation of the democratic process. It enables the courts to
fulfill that second and distinctly constitutional role and reflects a deeper commitment to the
separation of powers between and amongst the legislative, executive, and judicial organs of
government.
 The role of institutional independence has become expected of provincial courts due to their
increased role in dispute resolution in the country. As a previous judicial independence
case, Beauregard demonstrated that institutional independence was needed so that courts
could guard the Constitution, the rule of law and fundamental justice. This requires
more separation of powers. The judiciary should be free of manipulation from the legislative
branch. Provincial courts should benefit from this independence, as demonstrated by their
handling of important cases such as R. v. Big M Drug Mart Ltd. in 1983.
The Court’s Requirements
 What judicial independence requires is an independent, effective, and objective body to set
or recommend the levels of judicial remuneration. The independent body required by s.
11(d) is a judicial salary commission.
 The commission must be independent to serve as an institutional sieve, to prevent the setting
or freezing of judicial remuneration from being used as a means to exert political pressure
through the economic manipulation of the judiciary.
 The members of these bodies must have some kind of security of tenure. The appointments
must not be entirely controlled by any one of the branches of government. The commission
should have members appointed by the judiciary, on the one hand, and the legislature and
the executive, on the other.
 The salary commissions must be objective. They must make recommendations on judges’
remuneration by reference to objective criteria, not political expediencies. The goal is to
present “an objective and fair set of recommendations dictated by the public interest” (p.24)
The commission’s objectivity can be promoted by ensuring that it is fully informed before
deliberating and making its recommendations. This can be best achieved by requiring that the
commission receive and consider submissions from the judiciary, the executive, and the
legislature.
 The commission must also be effective. The effectiveness of these bodies must be guaranteed
in a number of ways. There is a constitutional obligation for governments not to change or
freeze judicial remuneration until they have received the report of the salary commission.
Changes or freezes of this nature secured without going through the commission process are
unconstitutional. The commission must convene to consider and report on the proposed
change or freeze. In order to guard against the possibility that government inaction might
lead to a reduction in judges’ real salaries because of inflation, and that inaction could
therefore be used as a means of economic manipulation, the commission must convene if a
fixed period of time has elapsed since its last report, in order to consider the adequacy of
judges’ salaries in light of the cost of living and other relevant factors, and issue a
recommendation in its report. The reports of the commission must have a meaningful effect
on the determination of judicial salaries.
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What judicial independence requires is that the executive or the legislature, whichever is
vested with the authority to set judicial remuneration under provincial legislation, must
formally respond to the contents of the commission’s report within a specified amount of
time. Before it can set judges’ salaries, the executive must issue a report in which it outlines
its response to the commission’s recommendations. If the executive or the legislature, as
applicable, chooses not to accept one or more of the recommendations in that report, it must
be prepared to justify this decision, if necessary in a court of law.
Governments are constitutionally bound to go through the commission process. The
recommendations of the commission would not be binding on the executive or the
legislature. Nevertheless, though those recommendations are non-binding, they should not
be set aside lightly, and, if the executive or the legislature chooses to depart from them, it has
to justify its decision.
Since judicial independence is guaranteed by the preamble, civil law judges have a right to
these salary commissions, even though they have no rights under section 11(d).
The judiciary should not engage in negotiations over remuneration with the executive or
representatives of the legislature. Any such negotiations would be fundamentally at odds
with judicial independence. Salary negotiations are indelibly political, because remuneration
from the public purse is an inherently political issue. Negotiations would undermine the
appearance of judicial independence, because the Crown is almost always a party to criminal
prosecutions before provincial courts, and because salary negotiations engender a set of
expectations about the behavior of parties to those negotiations which are inimical to judicial
independence.
The mandatory involvement of an independent commission serves as a substitute for
negotiations, because it provides a forum in which members of the judiciary can raise
concerns about the level of their remuneration that might have otherwise been advanced at
the bargaining table.
Any reductions to judicial remuneration, including de facto reductions through the erosion of
judicial salaries by inflation, cannot take those salaries below a basic minimum level of
remuneration which is required for the office of a judge. Public confidence in the
independence of the judiciary would be undermined if judges were paid at such a low rate
that they could be perceived as susceptible to political pressure through economic
manipulation
Ratio: s.11 (d) guarantees judicial impartiality and independence, in order to respect this
constitutional right, independent, effective, and objective judicial salary commissions must be created
to set or recommend the levels of judicial remuneration. s.11 (d) restricts reductions to judicial
remuneration, ensuring they do not go below a basic level of remuneration required for the office of
a judge.
Legislation/Conventions/Principles, etc.
1.
2.
3.
4.
ALI/UNIDROIT Principle 1
Bangalore Principles of Judicial Conduct, UN Doc. No. ECOSOC 2006/23, Value 1
CCP, art 9 – judicial immunity and impartiality
ON Courts of Justice Act, s. 84
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Judicial Impartiality
Class notes:
What is impartiality?
 “Impartiality is a state of mind in which the adjudicator is disinterested in the outcome and is
open to persuasion by the evidence and the submissions” Cory J, para 104, RDS v The Queen
 How do we distinguish impartiality from judicial independence?
o Bangelore principles say it well
 Why do we care about impartiality?
o Idea of fairness. Though interesting that judges don’t really talk about fairness that
much.
What does impartiality entail?
 “Judges must be and should appear to be impartial with respect to their decision and decision
making” – Canadian Judicial Council, Ethical Principle 6
 3 elements:
o Perception
 Why do we care about perception?
 Wewaykum: it is more important that it be seen to be impartial
o Outcome
o Process
Reasonable Apprehension of Bias
 Test
o Whether a reasonable, properly informed person would apprehend that there was bias
 Properly informed means: what are the relevant facts, what is the context?
 Reasonable person aware of the context, and not too persnickity
o Both person and apprehension must be reasonable
 Reasonable apprehension means that there must be serious grounds
 Tough presumptions and standards: presumption of impartiality (unless the alleger is able to
prove bias, using cogent evidence, that there is a reasonable apprehension of bias)
o Think about the cases in chronological order
o First was RDS
 Full of interesting splits in the court. Outcome is decided by a 6-3 split, but the 6
is further split into 2 groups. That makes a 5-4 split for reasoning (Cory’s test
wins).
 McL and LHD have a presumption of impartiality. This later became a key part of
later judgments’ tests
o The test is only half the story, have to consider presumptions and other onuses
 Remedies:
o Recusal
 But the judge who you think is biased is the same judge that hears the motion.
This is a bit extraordinary. Now, if you don’t succeed you have altered you
relationship with the judge
o Appeal
 High standard of review
 If you wait for the appeal, looks unprincipled/like sour grapes
o Remedies seem imperfect
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Application of the Test
 1. “Classic” conflict situations (great list in CCP-art 202)
o Judge is spouse of or related to party or counsel
 Wightman v Widdrington eg of an exception to this
o Judge is presiding over another action
o Previously acted in some sort of adjudicative/dispute resolving role
o Act as counsel for one of the parties in the past
o Shareholder, director of party
o Threats, insults, serious conflict between judge and lawyers (used to be “mortal
enmity”)
o Non-exhaustive list
o Art 204: exception if judge is sole judge in the district
 Wightman and Widdrington – see below
 Wewaykum – see below
o Automatic Disqualification?
 In the Civil Code, art 203 – not a discretionary disqualification
 See what Wewaykum says about this – no automatic disqual
 Cojocaru – see below
Sample problem
 Financial contributions
o Some direct, some indirect, Benjamin has no control over this
 Split 3:2
 B named replacement judges
 Overturning jury decision
o For procedural reasons
 Poll
 Presumption
 Other judges stepped down
 His contribution was an overwhelming proportion of the campaign support
 What is your best argument?
o Best argument is the presumption
o The person writing the majority judgment was not supported by Blakenship
o US is looking for actual bias – idea of perception of impartiality and how much it matters
varies from jurisdiction to jurisdiction
How elastic is the test?
 Issue conflict: what if the judge has an interest in the subject matter of the case or is (or related
to) a member of a group concerned with an issue in a case?
o Pinochet case in UK
 Lord *** with long standing interesting HR, relationship with Amnesty Intl, AI
had interest in case.
 Cause overturning of HofL decision
o Same-sex marriage case in Ontario
 Judge’s daughter being a lesbian
o L’affaire Ruffo
67

Judge of cour de QC who, after sitting on the bench for a while, seeing how
poorly child protection was working, got vocal and political
Neutrality vs Impartiality:
 Are judges expected to be “justice-bots”?
 Judges can’t discounts their life experiences
o “True impartiality does not require that the judge have no sympathies or opinions; it
requires that the judge nevertheless be free to entertain and act upon different points
of view with an open mind” – Cory J in RDS
When judges have a worldview
 Justice Sparks in RDS v The Queen
o Her quote
o First black woman appointed to the bench in Canada
 To what extent should she try to be neutral?
o LHD and McL judgment: individual experience is the best part of impartiality
Wewaykum Indian Band v. Canada, 2003 SCC 45 (excerpt)
Facts: Two BC Indian bands have been involved in litigation over ownership of reserve lands since the
1980s. In the 80s, Justice Binnie of the SCC was Associate Deputy Minister of Justice, and consulted on
the case in a supervisory manner for the Crown (he received about 14 memos about the case). When
the matter came up to the SCC 17 years later, Binnie J. wrote the reasons of the unanimous court. The
bands motioned to vacate the judgment because the circumstances created a reasonable
apprehension of bias on the part of Binnie J. Binnie maintains that at the time of the decision, he had
no recollection of his previous involvement in the case.
Issue: Should the SCC’s decision in the case be vacated because the circumstances involving Binnie J.
created a reasonable apprehension of bias? Holding: No.
Reasoning:
 Impartiality is a foundational principle of Canada’s courts of justice: public confidence in the
legal system is rooted in the belief that those who adjudicate do so without prejudice
o Justice must not only be done – it must be seen to be done; broader concern for the
image of justice in the public mind
 Impartiality: judge must approach the case to be adjudicated with an open mind
 Bias: leaning, inclination, bent, predisposition towards one side or the other. A predisposition to
decide an issue a certain way, which does not leave the judicial mind open to conviction
 Strong presumption of the impartiality of our judges – burden is on party arguing for
disqualification to show bias (or reasonable apprehension of bias) exists
 There is only one standard for the disqualification of a judge in Canada: reasonable
apprehension of bias
 The test:
o What would an informed person, viewing the matter realistically and practically – and
having thought it through – conclude?
o Would they think it was more likely than not that the decision-maker – whether
consciously or unconsciously – would decide fairly?
o Standard refers to an apprehension of bias that rests on serious grounds, in light of the
strong presumption of judicial impartiality
o Every case must be examined contextually and the inquiry is fact-specific
68
o
If it is determined that there is a reasonable apprehension of bias, the judge must recuse
himself or the judgment must be vacated
 Both bands agree that actual bias is not at issue; they argue that either bias was unconscious, or
not present, although in that case a reasonable apprehension of bias still exists
o Because: Binnie was involved as a lawyer for the defendant Crown – 17 years later he
wrote a judgment in that same litigation
 Binnie’s previous role in the case at the DOJ was supervisory/administrative; played no active role
in the dispute once the claim was filed
 At the relevant time at the DOJ, Binnie had responsibility for thousands of cases
 17 years have passed; the greater the passage of time between the event relied on as showing a
danger of bias and the case in which the objection is raised, the weaker the objection is
 Furthermore, there are 9 judges on the SCC; they draft the reasons together – even if it were
found in this case that the involvement of a single judge gave rise to a reasonable apprehension
of bias (which it is not), that taint would not extend to the 8 other judges who agreed (no
reasonable person would think so)
Ratio: Strong presumption of the impartiality of judges exists. If the past or actions of a judge give rise
to a reasonable apprehension of bias, the judgment will be vacated.
Class notes:
o Justice Binnie had worked at the DOJ, DOJ is a party.
o Looks like a violation of judge having represented one of the parties.
o This is not a recusal request
o Talk about his role at DOJ – supervisory and administrative role. Deputy minister rather
than lawyer
o He said he didn’t remember the memos in particular; It was a long time ago; Wasn’t
involved in the strategy; Thousands of cases on his desk
o FOI request
o There is an extent to which they seem to be saying, “he says he doesn’t remember, and
there are lots of facts that seem to suggest he might not remember” (are they assessing
his credibility?)
o They talk about recollection – but why do they care?
 Consequences of working as counsel for party: you might have loyalty, you
might find their arguments more persuasive,
o Fifteen years ago – they are pretty serious about this. They say over time it is less likely
that feelings of loyalty etc will fade over time
o 9 judges-unanimous, the other 8 can’t be biased by the same reason
o One of the arguments made by the applicants was “what would Binnie J have done if he
had realized the conflict before the court?” Applicants say he would have recused
himself. Court says that is not relevant.
o Automatic Disqualification?
 In the Civil Code, art 203 – not a discretionary disqualification
 See what Wewaykum says about this – no automatic disqual
Wightman c. Widdrington (Succession de), 2007 QCCA 1687, J.E. 2008-84

Castor holdings, incorporated in 1977. Went bankrupt 9 July 1992. Cooper & Lyband (where
Wightman was a partner) was the accounting firm who was supposed to give reports as to the
value of shares of Castor.
69

Shareholders (mostly banks) sued Cooper & Lyband holdings. Dozens of actions were before
the court, affecting dozens of different people. None had yet had a final decision. The
plaintiffs are saying the accountants were negligent in their accounting of Castor Holdings,
and that they were dishonest because they hid the fact that Castor was dependent on YorkHannover Developments Inc (another now bankrupt company). They claim they relied on this
false information in making their investments, and should be compensated for their loss.
 There is one common question among the dozens of actions: “Est-ce que la situation
financière de Castor Holdings devait être identifiée par les comptables dans le cadre de leurs
vérifications annuelles et, le cas échéant, divulguée dans les états financiers de l'entreprise? »
 In 1998 Judge Paul Carrière was appointed coordinator over the Castor files. He decided to
treat the Widdrington file as the principal file and to put the others on hold until the main
issue was decided in Widdrington. He let the lawyers from the other actions intervene in the
Widdrington action in order to try to be fair to the other parties.
 The case took FOREVER. They started in the Fall of 1998. They had 3 YEARS of testimony from
ONE witness (an accounting expert). He literally testified for 4 hours a day, 4 days a week, 3
weeks a month, ten months a year, for THREE AND A HALF YEARS. In the Fall of 2006 (EIGHT
YEARS LATER), Judge Carrière got sick and was hospitalized. SO THEY HAD TO START AGAIN.
 Each of the parties figured, since they were doing it all for the second time, that they could
present their evidence in as little as ONE YEAR EACH.
 This is the relevant part: Judge Marie St-Pierre was appointed. She used to work for
Desjardins Ducharme, and a lawyer from that firm represents one of the other complainants
in the Castor file (but not Widdrington, the immediate complainant). Also, her two kids both
work for Stikeman Elliot (one is a student and will later be a stageaire, the other is a junior
associate at the NY office), and that firm is also implicated in the file, thought again not in the
direct Widdrington case (they are involved in the related Chrysler action).
 The defendants say they think her connection to Stikeman affects her impartiality, and they
make a request that she recuse herself. She refuses, saying that a reasonable person would
not reasonably fear that she was partial in the circumstances (para 33)
Judicial History: TJ said that art 234(9) CCP was not applicable to the litigation context, and a request
for recusing should be analyzed in light of art 234(10) CCP – reasonable fear of partiality.
Issue: Should the TJ recuse herself in the Widdrington file because her children work at Stikeman, and
a Stikeman lawyer is representing Chrysler Canada, one of the complainants in the Castor affair? (para
38)
Holding : No, she should not.
Relevant legislation :
Art 234 CPC (9)(10); art 238 CPC; art 7 Cdn Charter; art 23 QC Charter (right to a fair and impartial trial
before an independent tribunal)
Reasons:
 The right to a fair trial before an impartial tribunal is nestled in the Constitution.
 Impartiality is presumed and it is up to the party requesting recusal to show otherwise. The
examination of a recusal request needs to be rigorous, because it is not just about the judge’s
personal integrity, but the administration of justice as a whole.
 The test is reasonable fear of partiality (para 48)
o “[C]e critère consiste à se demander "à quelle conclusion en arriverait une personne
bien renseignée qui étudierait la question en profondeur, de façon réaliste et
pratique. Croirait-elle que, selon toute vraisemblance, [le décideur], consciemment
ou non, ne rendra pas une décision juste?"
70

Test from Wewaykum Indian Band :
o a judge's impartiality is presumed;
o (ii) a party arguing for disqualification must establish that the circumstances justify a
finding that the judge must be disqualified;
o the criterion of disqualification is the reasonable apprehension of bias;
o the question is what would an informed, reasonable and right-minded person,
viewing the matter realistically and practically, and having thought the matter
through, conclude;
o the test for disqualification is not satisfied unless it is proved that the informed,
reasonable and right-minded person would think that it is more likely than not that
the judge, whether consciously or unconsciously, would not decide fairly;
o the test requires demonstration of serious grounds on which to base the
apprehension;
o each case must be examined contextually and the inquiry is fact-specific
 The TJ was right that there is no automatic recusal in this situation (para 53).
 Art 234(9) doesn’t apply in this case, only 234(10) – reasonable fear of partiality.
 There are no cases of similar facts from QC, so the Court must look outside QC. In BC there
was a case where a judge decided that just because he son worked in the law firm (along with
50+ other lawyers) there wasn’t a reasonable fear that he would be more likely than not to be
partial.
 The lawyers claim that it is common practice in QC for a judge to recuse herself if her kid
works in the representing law firm. CA says there is no evidence that this practice really is
common, and even if it is – so what?
 Just because this judge has previously recused herself when Stikeman was representing
clients in cases she was involved in doesn’t mean she has to do so now (para 62).
 There is lots of US case law saying that just because a judge’s child is an associate in a law
firm, the judge is not required to recuse herself. Maybe if the child is a partner (because then
there is a financial incentive), and maybe if the child is directly involved in the case, but
otherwise, no.
 In England, the test is even stricter: “In any case where the judge's interest is said to derive
from the interest of a spouse, partner or other family member the link must be so close and
direct as to render the interest of that other person, for all practical purposes,
indistinguishable from an interest of the judge himself” (para 65)
 France also doesn’t care.
 In this case, the judge’s children are not working directly on the case (or even in the Montreal
office), Stikeman is a HUGE firm, the case should be over by the time there is a chance the
kids could work on the case (one is writing the bar, one is presently at the New York office).
Conclusion: There is no problem.
Note: the conclusion really reveals the Court’s frustration with the amount of resources this case is
taking up. “Certes, ces questions méritent un examen juridique approfondi au regard d'une preuve
complète administrée par les parties devant un tribunal indépendant. Mais elles ne méritent pas que
des ressources judiciaires hors de toute proportion avec la nature réelle du problème leur soient
consacrées pendant plus d'une décennie. » Translation : This case has gone on long enough.
Class notes:
o QCCA content to apply reasonable apprehension of bias test
o Notes need for context-specific facts
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R. v. S.(R.D.), [1997] 3 SCR 484 (headnote)
Facts: A white police officer arrested a black teenager for allegedly interfering with the arrest of
another youth. The officer and the teenager were the only witnesses and their accounts differed
greatly. The Youth Court Judge acquitted the teen and, in the course of oral reasons, remarked that
police officers had been known to mislead the court in the past and to overreact with non-white
groups, though she stated her comments weren’t tied to the officer who had testified. The Crown
challenged for reasonable apprehension of bias.
Judicial History: Appealed to Nova Scotia Supreme Court and Nova Scotia Court of Appeal, both found
reasonable apprehension of bias.
Issue(s): Was there a reasonable apprehension of bias?
Held: No
Reasoning:
Cory J (Majority)
 Fairness and impartiality of courts must be both subjectively present and objectively
demonstrated to the informed and reasonable observer
 Impartiality: a state of mind in which the adjudicator is disinterested in the outcome and
open to persuasion by evidence and submissions
 Bias: state of mind that is predisposed to a particular result or closed with regard to particular
issues
 Test for apprehension of bias: “what would an informed person, viewing the matter
realistically and practically – and having thought the matter through – conclude”
o Two-fold objective element: the person considering the alleged bias must be
reasonable and the apprehension of bias must also be reasonable in the
circumstances
o The reasonable person must be informed, with knowledge of all relevant
circumstances – including of the social reality of the case, such as societal awareness
of racism or gender bias in a community
o Mere suspicion of bias is not enough: a real likelihood/probability of bias must be
demonstrated and the threshold for this is high
 Requirement of neutrality does not require judge to discount life experiences
o Whether references to social context are appropriate and/or give rise to reasonable
apprehension of bias will depend on the facts
o Difference between using social context to ensure law keeps pace with social reality
and using social context to help determine credibility
 Judges should avoid making any comment that might suggest credibility is being determined
on generalizations or stereotypes
o If no evidence linking generalization to the particular witness, might leave judge open
to allegations of bias
o However in some limited circumstances, the comments may be appropriate (no
reasonable apprehension of bias)
 Application of the test:
o The generalized comments about race and police in this case were not linked to the
evidence and came very close to the line
o However, they must be read in the context of the whole proceeding and the
reasonable, informed person would not find the high standard for reasonable
apprehension of bias was met
L’Heureux-Dubé J (Concurring)
72


Judges can never be neutral but must strive for impartiality
Their differing experiences appropriately assist their judging as long as the experiences are
relevant, not based on inappropriate stereotypes, and don’t prevent a fair determination
based on facts in evidence
 Same test as majority
 Judicial inquiry into context is necessary for the interpretation and application of the law
o Context can come from the judge’s personal understanding and experience of the
society in which she lives
 The reasonable person approaches questions of bias with a complex and contextualized
understanding of the issues in the case
o This person is aware of racial dynamics in the local community and committed to
principles of equality
 Awareness of context is consistent with judicial impartiality
 Application of the test:
o Must read the oral reasons in context – showed she had an open mind
o Her comments were entirely supported by evidence and were not unfortunate,
unnecessary or close to the line
o They were an appropriate recognition of the context within which the case arose
Major J (Dissent)
 No evidence adduced to show that the police officer was racist or that he lied
 Life experience is not a substitute for evidence
 The judge stereotyped and the absence of evidence to support the judgment is an irreparable
defect
Ratio: Test for apprehension of bias: “what would an informed person, viewing the matter
realistically and practically – and having thought the matter through – conclude”
Note: The headnote we have makes determining the majority, concurring, and dissenting
confusing but I’ve checked this is the correct breakdown.
Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 (excerpt)
Facts: Ms. C attempted to deliver her second child Eric by vaginal birth at the British Columbia
Women’s Hospital and Health Centre. During her labour, Ms. C experienced a uterine rupture, which
restricted Eric’s oxygen supply. It was the scar from a previous caesarean section that caused the
rupture. An emergency caesarean section was then performed. Eric suffered brain damage, which has
given rise to cerebral palsy. Eric and his mother brought an action in negligence against the Hospital
and several staff members.
Judicial History: [its actually important here!]: At trial, the Hospital& Staff were found liable in and
plaintiffs were awarded $4 million. The trial judge’s reasons however reproduced large portions of the
submissions of the plaintiffs. The majority of the Court of Appeal held that the trial judge’s decision
should be set aside because of the extensive copying from the plaintiffs’ submissions and ordered a
new trial.
Issue(s): 1. Is judicial copying evidence of judicial partiality and compromised integrity? Should such a
ruling be set aside?
Held: No. No.
Reasoning: It is good judicial practice for judges to explain in their own words their conclusions on the
facts and the law, but judicial copying is not prohibited. If the incorporation of the material of others
is evidence that would lead a reasonable person to conclude, taking into account all relevant
circumstances, that the decision-making process was fundamentally unfair, in the sense that the
73
judge did not put his or her mind to the facts, the argument and the issues, and decide them
impartially and independently, the judgment can be set aside.
Judicial decisions benefit from a presumption of integrity and impartiality — a presumption that the
judge has done her job as she is sworn to do. The party seeking to set aside a judicial decision because
the judge’s reasons incorporated the material of others bears the burden of showing that the
presumption is rebutted. The threshold for rebutting the presumption of judicial integrity and
impartiality is high, and it requires cogent evidence.
Here, the defendants rely on: the extent of the copying, the quality of the copying, the lack of
attribution for the copying, the nature of the case, and the failure to fulfill the basic functions of
reasons for judgment.
However, the fact that a judge attributes copied material to the author tells us nothing about whether
she put her mind to the issues addressed in that copying. Lack of originality and failure to attribute
sources do not in themselves rebut the presumption of judicial impartiality and integrity. This occurs
only if the copying is of such a character that a reasonable person apprised of the circumstances
would conclude that the judge did not put her mind to the evidence and the issues and did not render
an impartial, independent decision. The fact that he rejected some of the plaintiffs’ key submissions
demonstrates that he considered the issues independently and impartially. It cannot be concluded
that the trial judge failed to consider the issues and make an independent decision on them. The
presumption of judicial integrity and impartiality has not been displaced.
[Note: the legal discussion on whether there was causation between hospital staff’s behavior and
Eric’s Injury was omitted from our assigned excerpt]
Ratio: The threshold for rebutting the presumption of judicial integrity and impartiality is high, and
it requires cogent evidence. If judicial copying would lead a reasonable person to conclude, taking
into account all relevant circumstances, that the decision-making process was fundamentally unfair,
in the sense that the judge did not put his or her mind to the facts, the argument and the issues,
and decide them impartially and independently, only then can the judgment can be set aside.
Class notes:
o Lots of copying from plaintiff’s materials
o 421 of 487 paragraphs were copied
o Not everything
o Outcome of the decision: appeal was allowed. So TJ’s judgment was restored.
o BCCA says the copying led to RAB
o SCC says TJ made tons of legal errors
o Strong benefit of the doubt given. Takes a lot to overcome the presumption.
o Perception that one of the parties was not heard. That goes to the perception of
impartiality.
Example for Discussion: Sample Problem based on U.S. Supreme Court case of Caperton v. Massey
Coal Co., 129 S Ct. 2252 (2009).
Legislation/Conventions/Principles, etc.
1. ALI/UNIDROIT Principle 1
2. Bangalore Principles of Judicial Conduct, Value 2
3. CCP, arts 201-205
74
4. ON Courts of Justice Act, s. 80
Judicial Ethics and Accountability
Class notes: from Larissa
Judicial accountability
 Judges are under serious ethical duties
 Canadian Judicial Council has ethical principles for judges
o Not statutory
o Independence, integrity, diligence, equality, impartiality
 Provinces have different ways of stating judicial ethics
o Quebec: legislated
 How do we hold judges accountable for their actions?
o “Who watches the watchmen?”
 3 major questions:
o Who holds judges accountable?
 Problem that we always encounter is tension with principles of independence
o How do we hold them accountable?
 What is the process?
 E.g. PEI Reference on judicial remuneration – independent committee
 Who runs it?
 What are the sanctions?
 E.g. Harper criticizing McLachlin – undermines confidence in judiciary
Various mechanisms of oversight
 Political accountability
o Ultimate sanction: removal by government
 Societal/public accountability
o Ultimate sanction: removal by electorate
 Personal accountability
o Judges enjoy judicial immunity but can engage disciplinary liability
o Recall Cojucaru (copied plaintiff’s submissions)
 SCC overturns it on findings of fact but what if there had been no mistake?
Historical development
 Henry II: judges appointed at the pleasure of the King
o But how can judges oversee abuse by the King if the King himself could shut them
down?
o 1701 (Act of Settlement) – guaranteed tenure for judges, but can be removed only upon
the address of both Houses of Parliament
 S. 99 of our constitution comes from that – inherited same system
o Tenure guaranteed as long as judge behaves
 Canadian solution
o Ultimately, we have political accountability
o But oversight embedded within this process carried out largely by judicial peers
 So almost a dual system: ultimate accountability is decision by legislature but
determination of whether judge ought to be recommended for removal is in the
hands of fellow judges
75
o
o
Process helps guarantee independence
But have to distinguish between federally appointed and provincially appointed judges
Federal solution
 Removal of judges: s. 99 of Constitution
o Never happened! By the time we reach this stage, judge resigns
 Federal gov’t created Canadian Judicial Council (CJC)
o Chaired by Chief Justice, made up of all the Chief justices and associate chief justices of
all s. 96 courts
 Has elaborate complaint procedure
o Anybody can complain! In writing, can be anonymous
o Only examines conduct, not content of decisions
Provincial solutions
 Differ from province to province
 Quebec: Conseil de la magistrature
o Also legislation, code of ethics
o Similar body to CJC
o Make up is different: Judges (and chief judges) but also 2 lawyers and 2 non-jurists
o Key difference in accountability process: involvement of the Court of Appeal:
 S. 95 Courts of Justice Act: gov’t can’t remove a judge until after a report of the
court of appeal after the inquiry
 Judgment rendered by CofA – appealable to SCC
 Other provinces have equivalent CofA processes
 No necessity for address to Legislature in Quebec
What is the Test and the Standard to remove a judge?
 Age or infirmity, etc
 From Cosgrove: “is the conduct alleged so manifestly and profoundly destructive of the concept
of impartiality, integrity, and independence of the judicial role, that public confidence …”
 Whether public confidence in this judge is sufficiently undermined that we can’t let him stay on
the bench
o Basically same idea as reasonable apprehension of bias
Things judges do
 1. Behaviour on the bench
o Conduct not decisions
o Justice Groves in Cojocaru?
o Justice Cosgrove
 Makes a lot of rulings in course of criminal case that are about Charter violations
– very, very pro-accused (150 Charter violations)
 Where did it cross the line from wrong/misguided decision-making to actual
misconduct?
 Judges can make wrong decisions
o Inappropriate tone or body language, didn’t communicate well with self-rep
 2. Behaviour off the bench while a sitting judge
o Juge Ruffo
 Judge removed, many years of complaints and sanctions
 Behaviour off the bench – public activism regarding juvenile welfare
76

 Sends two children to sleep in Minister’s office as protest
 Court of Appeal: duty of reserve, courtesy, etc in public
 Kind of saying judges don’t really have freedom of expression
o Justice Lori Douglas (actually was before becoming judge)
 Completely unaware of her husband’s despicable acts – suggestion of revenge
porn
 Bullied into quitting – didn’t want to go for inquiry
3. Behaviour before becoming a judge
o Juge Therrien
 Leading cases on judicial misconduct, standard applied
 When he was 19, before law school, he harboured a criminal – aided and
abetted FLQ members – convicted and spent a year in jail
 But isn’t he rehabilitated? Whole point of criminal justice system!
 Also, he was pardoned by GG!
 Tried 5 times to be appointed as a judge
 Court claims it’s about failure to disclose – but is that the end of the story?
 Prob actually upset about convicted criminal sitting on the bench
o Justice Girouard
 Going on currently
 QC Superior Court judge currently going through CJC process
 Taking continuous judicial review and constitutional challenges at
Federal Court
 Don’t have full set of facts but looks like before he became a judge, as a lawyer,
he bought cocaine from an undercover police officer (maybe more than once)
 Constitutional argument: happened while a lawyer, not s. 96 judge, so should be
provincial
Sanctions and standards?
 Re Therrien
o The standard to which SCC says judges must be held
o “Judicial function is absolutely unique”
o “Judge is pillar of entire justice system”
o “Public will demand virtually irreproachable conduct”
o “Demanded far above what is demanded of their fellow citizens”
o “Almost superhuman in wisdom, propriety, decorum, and humanity”
o Loss of freedom that comes with being a judge – place apart
 Role of apology?
o Cosgrove
 Fights the whole damn time but then at the very end, apologizes to every one
ever born
 Inquiry committee says apology is important factor to consider but have to
judge apology on effect on public confidence – here, insufficient
Therrien (Re), 2001 SCC 35
Facts: In the 1970s, Richard Therrien was convicted of assisting four members of the Front de libération
du Québec during the October Crisis. Once he was released he studied law and was eventually given a
pardon. Years later he applied for a position on the Quebec bench as a judge. As part of his application
77
he disclosed his criminal record and his pardon. He was rejected based on this history. Later he applied
again, this time he did not reveal his criminal history and was accepted. Once the committee discovered
the existence of a criminal history they got the Minister of Justice to issue a complaint to the Quebec
Conseil de la magistrature. The Conseil found the complaint to be justified and recommended that he be
removed from the bench.
Issue(s): **The case has been redacted to focus on constitutional questions**
1. Is the rule of law — adopted in 1941 (Act to amend the Courts of Justice Act, S.Q. 1941, c. 50, s.
2, assented to on May 17, 1941) and now found in s. 95 of the Courts of Justice Act, R.S.Q., c. T16 — allowing the government to remove a judge without an address of the legislature of no
force or effect to the extent that it infringes the structural principle of the independence of the
judiciary which is guaranteed by the preamble to the Constitution Act, 1867?
2. If the answer to the first question is in the negative, is the rule of law contained in s. 95 of the
Courts of Justice Act, R.S.Q., c. T-16, of no force or effect on the ground of inconsistency with
the structural principle of the independence of the judiciary guaranteed by the preamble to the
Constitution Act, 1867, to the extent that the government may dismiss a judge without being
bound by the conclusions and recommendations of the report of the Court of Appeal?
Case History: Trial Court was in favour of Thierren. Court of Appeal reversed that decision. Supreme
Court sided with the Court of Appeal.
Held: 1. No. 2. No.
Reasoning:
Three key factors of judicial independence from Valente:
(1) security of tenure,
(2) financial security,
(3) and institutional independence with respect to matters of administration bearing directly on the
exercise of its judicial function
Test for removing a provincial court judges:
(1) the judge may be removed only for cause related to his or her capacity to perform judicial
functions and
(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:
Judges are merely one type of adjudicatory board envisioned by s. 11(d) of the Charter. The
Constitution should not be read in the strictest light as a result.
 Lots of references to Valente, Beauregard, and Re Remuneration of Judges. The SC insists that
they are not conflicting judgements.
 In discussing whether the Executive should be bound by decisions by the Court for the removal
of a judge, they all say it is preferable, but they don’t find an obligation to be bound. Ontario
had since passed legislation that did create that obligation to be bound.
 This discussion above is only speculation because the Court of Appeal did decide in favour of
revoking Thierren’s commission.
Elements of procedural fairness:
(1) the nature of the decision being made and the process followed in making it;
(2) the nature of the statutory scheme and the terms of the statute pursuant to which the body
operates;
(3) the importance of the decision to the individual or individuals affected;
(4) the legitimate expectations of the person challenging the decision; and
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(5) respect for the choices of procedure made by the agency itself, particularly when the statute
leaves to the decision-maker the ability to choose its own procedures.
 The Court found that the right to be heard and submit arguments was respected.
 It considers the Conseil has a fact-finding and investigatory role. This does not create
institutional bias even though it is populated by judicial peers.
 In analysis the role of the judge in the judicial system, the Court characterises them as
superpeople. Also, this carries the responsibility of being one of the foremost defenders of
individual freedoms and human rights and guardians of the values in the Constitution and
the Charter.
 Judges need to act with integrity in all facets of their lives to keep up public image and
support of the rule of law in Canada.
 111: “The public will therefore demand virtually irreproachable conduct from anyone
performing a judicial function. It will at least demand that they give the appearance of that
kind of conduct. They must be and must give the appearance of being an example of
impartiality, independence and integrity. What is demanded of them is something far above
what is demanded of their fellow citizens.”
 “The dictates of tradition require the greatest restraint, the greatest propriety and the
greatest decorum from the members of our judiciary. We expect our judges to be almost
superhuman in wisdom, in propriety, in decorum and in humanity. There must be no other
group in society which must fulfill this standard of public expectation and, at the same time,
accept numerous constraints. At any rate, there is no question that a certain loss of freedom
accompanies the acceptance of an appointment to the judiciary.”
 By hiding the fact that he had a prior conviction against him, even though he had been
pardoned (this does not result in tabula rasa), he is breaching his duty for transparency and
maintaining a positive public perception of the judiciary.
 He still had to mention it, and he had every right to explain the circumstances of it in the
interview. Hiding that fact is irreconcilable with justice. They distinguish between the mere
fact of conviction and the disguise of that fact. Conviction alone is not enough to bar
someone from becoming a judge. But hiding that part of his history does cause a problem.
Ratio:
Notes: This case is really poorly written and extremely disjointed until it starts talking about the role of
the judge ~90.
Website: Canadian Judicial Council (www.cjc-ccm.gc.ca/), especially portions related to the
complaints procedure
Canadian Judicial Council, Report to the Minister of Justice in the matter of the Honourable
Paul Cosgrove (Ottawa, 30 March 2009)
Facts: Paul Cosgrove, a justice of the Ontario superior court, presided over the murder trial of Julia
Elliott from 1997-99. A stay of proceedings was granted on 7 September 1999 after Justice Cosgrove
concluded that there had been over 150 violations of Ms. Elliott’s rights under the Canadian Charter of
Rights and Freedoms. On appeal, the stay of proceedings was set aside, and a new trial was ordered. The
CoA remarked that the evidence did not support most of Cosgrove’s findings of Charter breaches, he
made findings of misconduct against Crown counsel and police officers that were unwarranted and
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unsubstantiated, and he misused his powers of contempt and allowed investigations into areas that
were extraneous to the real issues in the case.
Judicial History: The Inquiry Committee proceedings found that Cosgrove demonstrated a lack of
restraint and abuse of judicial powers and fully warrants a recommendation for removal from office
Issue(s): (1) Is Cosgrove incapacitated or disabled from the due execution of the office of judge within
the meaning of subsection 65(2) of the Judges Act? (2) If so, is a recommendation for removal
warranted?
Held: (1) Yes. (2) Yes.
Legal Reasoning:
 (1) There can be no doubt that Justice Cosgrove engaged in serious judicial misconduct, within
the meaning of the Judges Act. (this is the extent of discussion on issue 1)
 Public confidence in the judiciary is essential in maintaining the rule of law and preserving the
strength of our democratic institutions. All judges have both a personal and collective duty to
maintain this confidence by upholding the highest standards of conduct.
 (2) It remains to determine if public confidence in the judge’s ability to discharge the duties of
his office has been undermined to such an extent that a recommendation for removal is
warranted.
 The standard used: Is the conduct alleged so manifestly and profoundly destructive of the
concept of the impartiality, integrity, and independence of the judicial role, that public
confidence would be sufficiently undermined to render the judge incapable of executing the
judicial office?
 3 questions must be answered to assess Cosgrove’s conduct in relation to this standard: (1)
What is the effect of Justice Cosgrove’s statements of apology made before the Inquiry
Committee and again before the Council? (2) What is the effect of the views expressed by
Independent Counsel regarding removal? (3) What is the effect of taking into account the
judge’s entire judicial career, character and abilities, as described in the letters of support and
submissions from counsel?
 (1) An apology is important to consider in assessing the future conduct of a judge and,
specifically, whether the judge recognizes that they have engaged in misconduct and, whether
there is a reasonable prospect that the judge will sincerely strive to avoid inappropriate conduct
in future. Justice Cosgrove’s apology in this case addresses both of these aspects. However, the
focus of the apology appears to be directed more to the “errors” made during the Elliott trial
and less on a recognition that many of these “errors” were caused by, or constituted in and of
themselves, serious misconduct that was damaging both to the administration of justice and the
public’s confidence in the judiciary. These errors went far beyond the types of errors that can be
readily corrected by appellate courts.
 We must consider the effect upon public confidence of the actions of the judge in light of the
nature and seriousness of the misconduct. The key question is whether the apology is sufficient
to restore public confidence?
 The misconduct by Justice Cosgrove was so serious and so destructive of public confidence that
no apology, no matter its sincerity, can restore public confidence in the judge’s future ability to
impartially carry out his judicial duties in accordance with the high standards expected of all
judges. This was not a single instance of misconduct but, rather, misconduct that was pervasive
in both scope and duration.
 (2) The mandate of Independent Counsel is not that of a lawyer retained to achieve a certain
result. His view is but one view arrived at after considering all issues. It cannot be the case that
the members of the Inquiry Committee are in a lesser position than Independent Counsel in
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coming to their own conclusion. Four of the five members of the Inquiry Committee were of the
view that public confidence in the judge’s ability to discharge his duties impartially could not be
restored. We agree.
 (3) The opinions of individuals, judicial colleagues or otherwise, who do not have the benefit of
the evidentiary record and a complete knowledge and appreciation of the issues before Council,
will generally be of little assistance in determining whether public confidence has been
undermined. We accord little weight to the letters of support.
 The words used and the conduct engaged in by Justice Cosgrove, over a prolonged period of
time, constitute a failure in the due exercise of his office by abusing his powers as a judge and
give rise to a reasonable and irremediable apprehension of bias.
Ratio: Judges have a personal and collective duty to maintain this confidence by upholding the highest
standards of conduct.
The standard used to determine if a Judge should be removed from office: Is the conduct alleged so
manifestly and profoundly destructive of the concept of the impartiality, integrity, and independence
of the judicial role, that public confidence would be sufficiently undermined to render the judge
incapable of executing the judicial office?
Carmen Hamilton, “Reasonable Doubt: Why we should care about Stephen Harper
criticizing Beverley McLachlin” (Straight.com, 23 May 2014)
Why we should care about Stephen Harper criticizing Beverly McLachlin
When Harper was considering Nadon for one of the Quebec spots on the SCC, McLachlin called
to tell him there might be an issue with that appointment. Communications between SCC and
government regarding appointments are common. Nine months later (and after the SCC case),
Harper said that McLachlin’s actions were “inappropriate” and “inadvisable.”
Why should we care?
1. Integrity: It makes people think our justice system is a sham
a. Attacking the propriety and integrity of the chief justice calls into question the
integrity of the whole justice system
2. Independence: The courts need to be seen to be independent from government.
a. Judges aren’t elected for a reason and they shouldn’t be dragged into politics
3. Impartiality: It’s tough for courts to be impartial when the PM is publicly blasting the CJ.
a. Animosity between government and the court can undermine impartiality.
b. Judges can’t be concerned with unwarranted personal, public criticism when
they’re applying the law correctly
c. McLachlin can’t publicly respond to Harper’s allegations without calling into
question the Court’s impartiality when the government is a litigant
Harper’s attack unfairly undermined the judicial system as a whole. If unchecked, this could
damage public perception of the system, which could lead to actual loss of independence and
impartiality.
Legislation/Conventions/Principles, etc.
Bangalore Principles of Judicial Conduct, Preamble
Optional/For Reflection:
Christie Blatchford, “The Remarkable Mr. Wills”, The Globe and Mail, 31 October 2007
For Discussion
Dean Pritchard, “Lori Douglas to quit rather than face inquiry”, Winnipeg Sun, 24 November 2014
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Overview of Pre-Trial Procedure in Quebec
Class notes:
The Pre-Trial Process: Quebec
 On the one hand, it is simply a series of procedures the parties need to complete, serve, and file
 On the other hand, it is a way to implement procedural reform and philosophy
o J teaches it as seeing how the high fallutin’ philosophy gets implemented
 See “Guiding Principles of Procedure” in new CPP, especially arts 17-20
o Right to be heard, good faith of parties, duty of cooperation, proportionality, etc
Overarching Themes
 These animate the new rules (new CCP and rules introduced in 2003). And aren’t specific to QC
 Judge is made case manager
o This is a major change in the philosophy of civil procedure
o CCP: duty of the court to ensure proper case management (art 158)
o One of the big changes from old code to new code:
 In 2003 QC brought in idea of judge as case manager, but these measures are
amplified HUGELY in new code
 Facilitate flow of information pre-trial (exhibits, lists of witnesses etc)
o No “surprise witness saves the day” drama in real life
o Art 248 para 2 – a party that fails to disclose evidence, CAN NOT BE USED at trial
 Encourage early settlement
o First several arts of new code all about how to not use the code
 Encourage simplification of disputes
o Art 179 pre-trial conference, there to simplify and shorten the trial
 Encourage speedier justice
o Stricter time delays (eg “180” day rule)
 Under the new code, there is a bit of extra time, more like 7.5 months
o Sanction lawyers’ passivity (Arguin v Nault)
 Have to be done in 6 months, unless you go in and ask to be relieved
 Can ask to be relieved before it expires or after it expires. Most of the time, the
parties do it before the 6 months is up.
 Art 110.1(2) existing code, art 173 new code
 If warranted by the high complexity of the case or in special
circumstances
 You go to court, say there are special circumstances, and say the other
side agrees you need special circumstances. Court usually grants the
request.
 In a 2006 report, the evaluated how this was working out. One of the
things they found was that at the QCCS level, 90% of cases asked for an
extension, about 200 cases a month asked the judge for an extension
 Reasons for asking for the extension: necessity to do a discovery, get
expertise,
 Historically, judges were there to accommodate the parties. If the
parties want a delay, who is the judge to say otherwise? But now there
is a legislated ability for the judge to DISMISS THE CASE if things don’t
get done in time
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o
Criticism: just creates an extra step: go to court to get the delay, rather
than automatically have the delay
 Judges hate to have parties lose rights for procedural reasons, so are
not likely to deny these requests
 Skeptics say, this hasn’t helped, it has just made people ask for a delay
 But: Arguin v Nault
 Standard before delay is up is complexity and circumstances
 Standard after delay is up is: impossibility (higher standard). Ct says it is
not absolute impossibility, just relative impossibility
Jukier is shocked that Ontario rules have something similar but for FIVE YEARS!!
A Myriad of Procedures: the Pre-Trial Order
Existing Code
Motion to Institute proceedings with notice to
“appear” within 10 days: art 111, 119
Service: arts 120-46.3
New Code
Judicial Demand with summons to answer within
15 days: art 141 (see also art 99), 145, 146,
Notification: Wider forms of “service”; art 110;
see especially art 133 (technological means)
“Writ”
 Comes from common law England. Refers to forms of claims.
 Every case is started with a writ. Called many different things: statement of claim (in Ont);
declaration;
 QC called them a “Motion to Institute Proceedings”
 Now it is called a “Judicial Demand” [although in other articles it is called an originating demand]
o And in the newest version it is called a “judicial application”
 What is a judicial demand/application?
o JD/JA has to include a “Notice” or “Summons to answer” (art 145)
o Old code: notice to “appear” within 10 days. Imagine how confusing this is for a selfrepresented litigant. What does “appear” mean? You go there? No, it means filing a
one-sentence piece of paper saying “I am going to contest!”
o The new law calls it an “answer” rather than an “appearance”
 Overall: process begins with a written document that is, essentially, a writ. And must include a
notice to defendant telling them what to do.
o What do you have to do with this document? (1) notify the other party (2) file it in court
o In QC, new rule that says once you file it in court, you have to notify the other party
within 3 months
o Until now, service was made in a very old-fashioned way: in person. Hire a bailiff, bailiff
physically hands the document to the person.
o Cases recently about service through email and even facebook


If you don’t answer the summons, there is a default judgment (art 145 para 2)
In this notice, you have to declare the exhibits that you are going to be using. If they are short
you can even append them, but usually they are sent later.
Existing Code
Negotiation of agreement as to the conduct of
proceedings (Timetable); art 151.1
New Code
Establish case protocol (within 45 days of the
summons, arts 147-149
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Presentation of the action, art 151.4, 151.6
Raising of preliminary exceptions, art 151.5
Extension of 180 day delay, art 11.1(2)
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-note the new name=case protocol
Examination of the Case protocol by court (within
20 days), art 150
Case management conference, arts 153, 158
Preliminary exceptions, arts 167, 168
Extension of 180 day delay, arts 173(2), 158(7)
In Ontario, Defendant hast to submit a defence. QC has abandoned that. QC says, after the
appearance, Claimant and D have to get together to negotiate an agreement as to the conduct
of proceedings. (Jukier says this is amazing)
o Everything they will agree to in this timetable has to be done within 180 days
o What is the purpose of this? Forces C and D to get together. Within 30 days! Maybe they
will settle right away!
Jukier says two key articles of reform are: 148 and 158
Some key changes in art 148:
o Have to explain why you are not using one joint witness
o New default position is joint expert witnesses, and only ONE expert witness
o Have to assess likely legal costs
Currently, after parties have come up with the timetable, they have to present it in court
At the presentation of the timetable is when you raise preliminary exceptions, and when you ask
for any extension to the 180 day delay.
o Eg of preliminary exceptions: prescription, jurisdiction, frivolous and vexatious, case was
already decided, no reasonable cause of action, standing
o Declinatory exeptions (“please decline to hear this case because…”) or dismiss
o Under new code, major articles are in 167, 168
Case management – other HUGE change (art 158). Judge can initiate, or parties can request
Existing Code
Examination on Discovery, arts 396.1 et seq, 397
Defence, art 172
New Code
Discovery: note new limitation, arts 221, 229
Defence, note emphasis on oral defence, arts
170, 171
Examination on Discovery, art 398
Answer art 182
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Part of what the parties agree in the timetable is discovery.
Used to be separate process: claimant discovery, then D discovery, then f/u discovery fo reach.
In new code, not such a clear bifurcated process
Art 229 – limitations on discovery. No discovery for cases under $30,000 and
o NO pre-trial examination may last for more than 5 hrs where value is less than $100,000
o (remember in Ontario, the cut off for simplified procedure was $100,000)
o Why is it limiting discovery to 3 & 5 hrs. Costs
 Self-regulating
Why still oral pleading? Jukier confused by this. That seems counter-intuitive.
Existing Code
Inscription for proof and hearing, arts 274, 274.1,
274.2
New Code
Setting Down for Trial and Judgment, arts 173178
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Pre-trial conference, art 279
Pre-trial conference, art 179
 Pre-trial conference – court is not letting you loose!
Proceedings that can occur anytime in pre-trial period
 Amendments to proceedings (new art 206)
o Lawyers really like this, especially because you have to file things so fast
 Judicial settlement Conference (new arts 161-165) (this is a carrot)
 Interlocutory injuctions (new art 510)
 Raise Abuse of Procedure
o Currently art 54.1 – new art 51 et seq
o Power to dismiss and more including punitive damanges (new arts 53, 54)
 SLAPP
Arguin v. Nault, 2007 QCCS 1767
Facts: The plaintiff, Arguin, a hostess at a hotel was assaulted by the defendant. The plaintiff filed a
claim for damages following the injury just one week before the prescription period ran out (3 years).
This started the clock on the 180-day limit (110.1 CCP). The 180 days ran out and the plaintiff filed
more than 3 months after the deadline. The Plaintiff claims that missing the deadline was a mistake
caused by the departure of her lawyer’s secretary. No one person has served as secretary for any length
of time since. However, the lawyer did receive a warning one month before the 180 day period was up.
Issue(s): Can the Plaintiff be excused for missing the 180-day limit?
Held: No
Reasoning:

The 180-day rule is a key reform of the civil procedure system. The prescription periods are in
place to protect the rights of defendants. The rules are to be applied broadly and flexibly,
provided this does not cause prejudice to the parties.

In this case, extending the deadline would cause prejudice to the defendant, who would have to
defend a case that has passed its prescription period.
 It is up to the parties to take responsibility for their file. It is the party at fault bears the
burden of proving that the situation is exceptional and merits an extension.

Delays are only allowed for cases that are complex or that have special circumstances. To be
excused, one must show the impossibility of acting within the prescribed period.

Errors by a lawyer should not exempt the party from having to follow the rule.

The prescription date was clearly noted and underline on the file

There is no proof here that there was an impossibility of acting. This looks more like negligence
on the part of the lawyer. “We cannot allow apathy to be used an excuse”
Ratio: The 180 day limit is REAL. To be excused, one must show the impossibility of acting within the
prescribed period.
Overview of Pre-Trial Procedure in Ontario
See slides
Pleadings and Service
Class notes:
Pleadings and Service
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Almost the most important pleading is going to be the very first, originating, declaration,
statement of claim, whatever it is called (the “writ”)
Key question: how much does claimant have to reveal?
How much is enough?
 On February 13th, TouchIt Inc. initiated a lawsuit in New York for damages as a result of breach
of contract. In their pleadings, filed with the court and served on View-U Ltd., they stated: “It is
alleged that View-U Ltd. materially breached the conditions of its January 5th, 2010 contract with
claimant TouchIt Inc. and is therefore liable in damages for an amount exceeding $10,000 USD”
 First question is: if you were counsel, would you challenge touchit Inc’s pleading, and if so, on
what basis?
 What is potentially wrong with it?
o What is the breach?
o Doesn’t give amount of damages that are actually claimed
 Why would you say “in excess of”? -> to get it into a specific court (subjectmatter jurisdiction)
o Date of breach?
o The clause that was breached, or at least declare the contract itself as an exhibit
o Heads of damages
 Would the jurisdiction in which this took place matter?
o Yes. It would matter for two reasons
o 1. Detailed reasons – the way the rules are different in each place
 In QC, the Code requires a plaintiff not to provide exhibits, but to announce
(declare) the exhibits they will be using in their originating demand
 Art 145 new Code, 247
 Ontario doesn’t require this – rule 25.06 – “not the evidence by which those
facts to be proved”
o 2. More macro way = different visions of pleadings
Two different visions of Pleadings
 Fact pleading vs Notice pleadings
o The big difference is the amount of information that has to be in that originating
document
o By and large, whatever jurisdiction you are in in Canada, we adhere to fact pleading
o In the US, they adhere to notice pleadings
 Look at Rule 8 of Federal Rules of CP: “short and plain statement of the claim
showing that the pleader is entitled to relief”
 Fact pleading requires a lot more
 Fact pleading: art 99 of new code: “must specific its nature and purpose, and state the facts on
which it is based, and the conclusions sought, and anything which, if not alleged, could take the
other party by surprise”
o ON rules are quite similar (rule 25.06)
o ALI/UNIDROIT: similar.
 Why would a plaintiff not want to set out more facts than they did in the sample?
o Beals case: “financial bonanza” (tactical consideration)
o Costs more money to put more in the originating pleading (burden shifts onto the
plaintiff)
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o
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Dodson article: can’t look at one element of procedure in total abstraction from the
others. If you have a notice pleading system, what must you have to compensate for
that? More discovery.
 Discovery is often cited as the culprit for the high cost of litigation. What do we
see in both QC and ON? Shortened discovery process. QC now has 5 hr and 4 hr
limit (art 229). If you have notice pleadings and all you are getting is a concise
statement of breach, the D is going to have to really have a big discovery.
o Threat of cost of discovery will push cost-conscious D’s to settle. Nothing wrong with
that, but may result in settling even “anemic” cases
Transparency of process
o One of the new philosophies of the new civil procedure is “let’s be as transparent as
possible”
Cost implications
o Going to cost a lot more to discover all that information bit by bit.
 Does cost more for the plaintiff, but the overall cost of the litigation will be
higher if we don’t have parties voluntarily disclosing
Time factors
Implications on incentive to settle
Access to justice implications (defendant versus plaintiff’s position)
o Most people slam notice pleadings, but the one argument in favour of notice pleadings
is the access to justice argument
o Woolf report item 8: “it is significant that the main procedural tools. . . have each
become subverted from their proper purpose. . . pleadings often fail to state the facts as
the rules require. . .. this is bad”
 This is looking at access to justice for the defendant
o From plaintiff’s position: low threshold opens the door to access to justice
The two visions of pleadings actually serve very different goals
Interesting when mundane, boring things, have unbelievable consequences in really NOT boring cases.
 Two of what J finds the most fascinating cases have turned on this (boring) issue of fact vs notice
pleading
Iqbal case in USA (Dodson reading)
 Took place in 2009
 Who is Iqbal, why is I upset and who is I suing? He is a Muslim of Pakistani origin who was
detained after 9/11, arrested on charges of criminal activity. He sues the Attorney General and
head of FBI. He alleges racial profiling. Says he was not allowed to exercise his const’l rights
because of his race, religion, and country of origin
 Important case. Interesting case. Interesting enough for US Supreme Court.
 How did the D’s win this case? They won (5:4) on pleadings
 SC majority said they need more than a conclusive statement. Fascinating that THIS case is
decided on pleadings.
 Dodson says these cases are bumping up the threshold of what you have to have, even for
notice pleadings. Have to have enough facts in there for plausibility. Not probability, but
plausibility.
 This raises the question: what do you do if you are a D, and you receive an originating process,
and you open it up and all it says is “what TouchIt pleading says. What do you do?
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o
o
o
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What procedural avenue could you take?
Could ignore it
Motion to dismiss because pleadings do not reveal an action that is founded in law. We
will have a class on these types of things later.
o Suppose you know there is some foundation to the claim: go to court to tell the plaintiff
to give you more information = a motion for particulars
 Ontario rule 25.10
 QC art 169(2) new
 Lawyers used to use motions for particulars all the time.
 There are two kinds of preliminary motions: one is a “declinatory” motion = a
motion asking the court “please decline to hear this case” for whatever reason
(sued in wrong court, wrong geographic jurisdiction, case is prescribed,
whatever)
 The second is “dilatory” motions. = a motion that delays. Used to be, that as
soon as D went to lawyer, the first thing the lawyer used to do was “motion for
particulars” in order to delay.
 Problem now is: motions have to be done right away. No time for endless
motions.
Back to the Touchit pleading:
o May be fine in the US
o But is “above $10,000” enough?
o In ON and QC you do have to disclose the amount you are suing for (QC art 99 - must
disclose the conclusion sought). But you can amend your claim later.
 Ontario: 25.06(9)=amount claimed for each claimant shall be stated
o In BC- you don’t have to put the amounts, but you do have to specify the heads of
damage
Beals v Saldanha – see below
Service
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What is “service”? what is the purpose of service?
To ensure the D knows that she is being sued.
All about knowledge, transparency, letting the other party know. Not just about making bailiffs a
living
Real purpose is “audi alterem partum” philosophy. System of justice is predicated on “hear the
other side”
o Art 5 of old code and art 17 of new code:
But plaintiff cannot be held hostage by D who doesn’t appear
Classic method of service is personal service. Take your pleading, call bailiffs or sheriffs
New rules :
Lots of things have to be exchanged back and forth. That can get expensive if you are payng a
bailiff every time. So things are changing. QC has changed the word to be “notification” rather
than “service”. Service still means served by bailiff. Notification is broader
o Art 110:
 Bailiff, mail, delivery, technological means
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Couple of things to note: is it going to be the norm that lawyers are going to email everything to
each other? Answer: not yet. Although new code provides for email notification, only with
consent on both sides.
o 148 para 9
o In Ontario, email service must also be by consent: 16.06 point 1 para 2
World first, Dec 2008: lawyers in Canberra convinced a judge to allow them to serve over the
internet after repeatedly failing to do so in person. Docs served over facebook
o Since then, there have been judgments in QC – EN v JM. Allowed proceedings of notice
via FB.
o What do you have to do to serve via FB? Take a special motion before a judge. This one
was taken in 2011.
o Have to prove the other party received it
“If you were hearing View U’s motion to revoke the default judgment against them, would you allow or
deny the motion: - Best Buy case
Best Buy case – see below
 They put the instituting proceedings in a drawer – stupid! At least the S’s thought it through and
made a reasoned decision to not pay a lawyer.
 J was astonished by this case. Two diametrically opposed judgments between CS and CA.
 How do you serve a corporation? Art 130 of old code (art 125 of new code) says you serve a
corp – by leaving doc with a person who appears to be in a position to give doc to an officer or
director
 Best buy was served
 Art 125 is laughablely vague. 16.02 I1)
 Best buy served notice properly. Did it twice. The Eees didn’t do what they were supposed to
do. Company had policy saying – send it to BC. Eee put it in a drawer instead.
o Note: 2009 same thing happened to Pepsi
 If prevented from defending by “surprise, by fraud or any other reason”
o Was Best Buy’s reason reasonable?
 Zuckerman’s theory:
o That judges can’t bring themselves to make a decision based solely on procedure. He
would be ciritical of CA decisions.
o Until we have a judiciary that is willing to take seriously the rules of procedure, the
system will remain broken.
Statement of Claim
Beals v. Saldanha, 2003 SCC 72 (excerpt)
Facts: The Saldanha’s, along with another couple, Rose and Dominic Thivy, were Ontario residents
who bought a lot in Florida in 1981. They paid $4000. Three years later Rose Thivy was contacted by
people wanting to buy the lot. She said they would sell it for $8000. The offer said “Lot 1” was being
purchased, but actually the S’s and T’s were selling Lot 2. Rose informed the real estate agent of the
mistake and the change was made to the documents. The new owners (developers), however, started
building their model home on Lot 1, apparently not realizing that they had actually purchased Lot 2.
When they realized their mistake, they started an action against the S’s and T’s in Florida. The S’s and
T’s defended themselves, but the action was dropped because it had been filed in the wrong location.
89
A second action was started in Sept. 1986. Rose T filed a defence on behalf of the S’s and T’s. In May
1987 and May 1990, amended complaints were served on the S’s, and no defence was filed. They
were notified of hearings and failed to appear. July 25, 1990, the Florida court found them in default.
In 1991 there was a trial to establish damages, at which they did not appear. The jury awarded
$210,000 in compensatory and $50,000 in punitive damages. When served with the judgment, the S’s
finally consulted a lawyer who said the judgment couldn’t be enforced in Ontario so they did not
contest or appeal it. In 1993 there was an action brought in Ontario to enforce the Florida order.
Because of interest, the amount owing had increased to $800,000.
Issue: was the notice provided to the S’s of the Florida proceedings brought against them sufficient?
Holding: yes
Reasons:
Major J: The Defence of Natural Justice
 Domestic courts enforcing foreign judgments “must be satisfied that minimum standards of
fairness have been applied to the Ontario defendants by the foreign court” para 60
 The burden to show that the foreign process was unfair lies on the defendant in the foreign
court. The burden is not on the plaintiff to show that it was fair.
 Fair process means basic procedural safeguards such as judicial independence and fair ethical
rules, including fair notice.
 Defence of natural justice is limited to procedure and due process, not to substance of claim.
 The defendants in this case were given notice of the action. They claim that they were not
given sufficient notice to assess the extent of their financial jeopardy. But the claims make
clear that the plaintiffs were seeking recovering of construction costs, punitive damages,
things that could cost a lot of money.
 Defendants say they didn’t know a financial expert would be testifying at trial. Lack of notice
about expert testimony is not a denial of natural justice. (note: Binnie’s judgment points out
that lack of notification about expert testimony is contrary to the Florida rules).
Iacobucci & Binnie JJ (dissenting):
 The plaintiffs bought a lot for $8000 and now the defendants apparently owe over
$1,000,000. The damages were assessed by a jury in less than half a day. This amount is
breathtaking.
 Had notice been sufficient, I&B would reluctantly say that the S’s were bound by the
judgment, despite the fact that they didn’t get a chance to tell their side of the story.
 “However, in my view, the appellants’ inactivity in the face of their mushrooming legal
problem is explained by the fact they were kept in the dark about the true nature and extent
of their jeopardy. They were not served with some of the more important documents on
liability filed in the Florida proceeding before they were noted in default, nor were they
served with other important documents relevant to the assessment of damages filed after
default but prior to the trial at which judgment was entered against them. Proper notice is a
function of the particular circumstances of the case giving rise to the foreign default
judgment. In this case, in my view, there was a failure of notification amounting to a breach of
natural justice.” Para 83
 The S’s cannot be expected to have anticipated that a small real estate transaction of $8000
could explode into a judgment of $800,000. This is “kafka-esque” (para 88) and a “major
financial bonanza” (para 90)
 Florida notice is generally good enough, but the question is, was it good enough in this case.
 “The total expenditures on the project, including the purchase price, the building permits, the
survey tests, trusses and some other materials were about US$14,000. The respondent Beals
90
later testified that the average profit experienced on the houses he built in 1984 was about
US$5,000 per home. The respondents’ eventual award on account of loss of profit was more
than ten times that figure.” Para 95
 Under the Florida rules, it appears that you need only file an amended defence if the
complaint against you has been amended. The amended complaints served on the S’s were all
amendments relating to other parties to the action (the real estate agent, etc). Since the S’s
had filed a defence to the initial claim, it was reasonable for them to assume that they didn’t
need to file an amended defence. Yet, they were found in default (for not having filed a
defence).
 In administrative law, it is well established that a party must be aware of the extent of the
potential jeopardy face. “There is a difference in “importance” between a minor real estate
transaction whose defence is “not worth the candle” and a major claim which the
respondents have successfully orchestrated into a million dollar liability.” Para 111
Ratio: It is up to the defendant to prove that a system is unfair.
Note: this case is a fascinating example of competing story-telling. Reading Major’s judgment I
thought, “wow, the S’s were really sloppy about not informing themselves about this legal
proceeding”. Reading Binnie I thought “wow, these Florida real estate developers are sharks looking
to make a buck off some innocent Canadian investors!”
Class notes:
 Defendants: Ontario residents being sued in Florida.
 Binnie: they never knew the extent of their final jeopardy
 “Kafkaesque”
 J would call this the quintessential “pathological” case
 It only reaches the Cdn courts years later, when they are trying to get the judgment executed
 Ontario residents are sued by plaintiffs in Florida in a Florida court.
o Property was located in Florida
o It’s about a contract to buy a lot of land.
 Lot originally cost 4000 and was later sold for 8000. There was a mistake, and the person who
bought the lot started building a model home on the wrong lot.
 They defend the original claim, but not the amended claims. Florida law requires that they
defend every amendment.
 Two things happening: they think they are being sued for “in excess of $5000”
o Who would expect this to turn into $1,000,000????
o $270,000 is the amount of the actual judgment
o Gets to a million through interest: 12% per annum. By the time the Beals try to enforce
the judgment, it is almost $1,000,000
 Supreme Court splits
o Major J write majority judgment which has been universally hailed in Canada as a harsh
judgment. He says, in order to enforce a judgment from another jurisdiction, we want to
just make sure of a couple of things. (1) make sure the foreign court had jurisdiction. (2)
make sure there was no “breach of natural justice”
 Did it follow the rules of Florida procedure? Yes. We can’t impose our rules on
the Florida system. The rules were good enough.
 Lesson of majority: it becomes incumbent on defendant to learn the law of the
jurisdiction in which you are being sued
 Quite critical of the defendants for sitting idly by and doing nothing
 What else could the Saldanha’s have done when they got notice of the judgment?
91


o Pay it
o Ask for rescinding of default judgment -> this is what happened in Best Buy case
o S’s didn’t do this
o Appeal it
Binnie writes vociferous defence. Calls it a “kafskaesque” judgment, says they were in the dark
about the extent about the true nature of the jeopardy. He also says, he is not sure it is natural
justice. He says in most jurisdictions you don’t have to file an amended defence for each claim
and nor were they told that you have to be.
o Appreciate requ of art 145 in QC – last page tells D’s what they have to do to avoid
default judgment.
Moral of the story: (1) civil procedure can lead to really wild decisions (2)
Scott Dodson, “Comparative Convergences in Pleading Standards” (2010) 158 University of
Pennsylvania Law Review 441
Introduction
 Comparative civil procedure has been slow to happen in American law schools, mostly
because of American exceptionalism – American civil procedure is very different even
from other common law jurisdictions
 This is particularly clear with pleading – Rule 8 requires only “a short and plain
statement of the claim showing that the pleader is entitled to relief”
o This is notice-centered rather than fact-centered
o Most civil law requires detailed fact pleading and often evidentiary support
o Even most common law countries require some fact pleading
 This exceptionalism may be waning – some statutorily enacted heightened pleading
requirements, and two Supreme Court cases, Twombly and Iqbal
 These changes, if they reflect a broader willingness to experiment with pleading and civil
procedure generally, may allow for gains like meaningful transnational dialogue,
valuable comparative analysis, and potential to harmonize civil procedure across
boundaries. These trends also present challenges to the coherence, workability, and
fairness of the American system built on liberal pleading
1. Comparative Civil Procedure Generally
a. Benefits
 Comparative studies have academic, practical, informative, and social benefits
 Academically it deepens one's understanding of US procedural norms and the
underlying policy balances they strike
 Practically the increasing prevalence of transnational litigation and transactions
requires broader exposure to foreign laws and procedures
 Reformatively it provides an opportunity for individual systems to devise a different
model for solving common problems
 This can harmonize independent legal systems into a more coherent and accessible
global system
 Socially it may broaden perspectives, reduce isolationism, and increase tolerance
(lol)
b. Obstacles
 Civil procedure is extensively rooted in its home legal system and various
procedures are built upon each other, meaning the alteration of one rule may
disrupt others
92



Civil procedure derives from an reflects values of society regulates
American proceduralists are infamously provincial
American procedure has an extensive list of exceptionalist features - liberal
pleading, liberal and costly discovery, class-actions, a disengaged judge, civil juries,
largely unfettered damage assessments, and the American rule of cost allocation
2. American Exceptionalism in Federal Civil Pleading
America has the most lax pleading system in the world, despite inheriting common law
procedural rules from Britain. The change came in the adoption of the Federal Rules
a. Traditional Rule 8 Pleading in the United States
 The old code require the complainant's pleading to contain a statement of the facts
constituting the cause of action and severely limited discovery.
 Changes to pleading corresponded with broader changes throughout the procedural
system - rules designed to install a liberal ethos in which preferred disposition is on
the merits
 The primary goal of Rule 8 moved from isolation of issues, factual development, and
merit determination to notice - requires only “a short and plain statement of the
claim showing that the pleader is entitled to relief”
o Replaces fact pleading with notice pleading
o Pleading became a mechanism to test doubtful claims
b. Foreign Approaches
 American pleading standards are exceptionalist – no other country’s is so lax
 Civil law countries require substantially more, uniformly require some level of fact
pleading beyond the American system’s notice requirement
 Asian procedural systems also require some fact pleading and submission of
evidence at the pleading stage
 Other common law systems have more in common with civil law pleadings than
American pleadings – English pleadings must contain a statement of the material
facts, a statement of the necessary particulars, and a summary of the evidence the
plaintiff has
o This allows for definition of the nature of the dispute, orderly process,
provides notice of relevant issues, prevents inadvertent false admission, and
allows either party to get rid of the case as a matter of law if warranted
 International attempts to create a pleading norm reject American version, require
facts
 In sum: pleading standards are substantially identical in most legal systems,
requiring the facts supporting a claim be stated with reasonable particularity – no
one wants the American system
3. Current Trends in American Federal Civil Pleading
 There’s a suggestion that America may be moving towards the global norm
a. Statutes
 The Private Securities Litigation Reform Act (PSLRA) imposed heightened pleading
requirements for certain securities claims
 The Y2K Act (to control lawsuits based on computer failures!!) also did so
 These acts demonstrate congressional willingness to experiment with rigorous
pleading standards – but are narrowly applied to specific subject-matter areas
b. Twombly and Iqbal
 American Supreme Court cases that curtail pleading
93

Twombly
o Consumer class-action against telecom providers for anti-trust conspiracy
claims – Court required plaintiffs to show “plausible grounds” for inferring
an agreement btwn the providers
o The proper interpretation is subject to much dispute but it seems clear that
Twombly begins to shift the pleading focus from notice to facts – legal
sufficiency to factual sufficiency
 Ashcroft v Iqbal
o Confirms shift from notice to facts
o Iqbal sued former US Attorney General for unconstitutional policy
subjecting him to harsh conditions on account of race and religion
o Court dismissed the claim on grounds that Iqbal didn’t make a showing of
“plausible entitlement to relief”
 What Iqbal clarifies about Twombly:
o The “plausibility” standard is a factual-sufficiency standard independent of
notice and is more restrictive than the previous prevailing factual standard
o The standard is transsubstantive, applying to all Rule 8 claims
o This is a major shift from notice to facts – taken with the statutes above and
the Solicitor General’s brief in support of the Iqbal outcome, the shift has
the support of all branches of gov’t (yeah I’m sure the S.G. is supporting the
pleading standard, not that it’s immune from liability for racially-based
policies yup totally)
o Still not the same as other jurisdictions
4. Potential Effects of American Federal Pleadings Trends
 This is a small change and it remains to be seen if the trend will accelerate or retreat
 But let’s speculate anyways!
 A comparative approach might enrich the debate over the American pleading system
o No defenders of the new trend have relied on fact that most countries require
some form of fact pleading and that this suggests it may be an appropriate way
to solve certain problems
 This resulting enrichment of the debate may lead to a reexamination and better
understanding of America’s own procedural policy imbalances
o Pleading balances access to justice with efficiency
 Foreign solutions may provide illustrations of potential models for U.S. reforms
 Comparative perspectives can illuminate the debate over the transsubstantivity of the
Federal Rules
o Lol I doubt this is relevant
o Ok, kinda interesting: what about different standards for public interest cases?
 Foreign systems can provide a predictive model of what consequences might follow
from a change to American procedure
o E.g. as civil procedure limits private enforcement, public (or criminal)
enforcement may become more prevalent – in France, discovery limitations
push employment discrimination claims out of civil and into criminal system
(whoa)
 Procedural convergence may produce opportunities for harmonization with foreign
systems, esp for transnational litigation
94

May provide an opportunity for America to reduce its isolationism and improve
international relations (dream big, buddy)
 If America could diminish its isolationism, it might be able to export US procedural law
abroad
 Comparative conversation might turn inward, bringing a recognition of state variation
Conclusion
 There’s a convergence towards foreign fact-pleading models that may provide the base
for valuable comparative study and analysis
 There are other areas in civil procedure in which this is happening
Service
9026-8863 Québec Inc. v. Best Buy Canada Ltd, 2006 QCCS 6528 (C.S.) and 2007 QCCA 936
(C.A.)
Facts: Best Buy Canada (BB) is presenting a motion for the revocation of a judgment rendered by default
in favor of 9026 Quebec (9026) in virtue of the termination of a contract between BB and 9026. 9026
obtained a judgment by default of appearance and pleading for BB. BB claims in support of its motion,
nine sworn declarations that the information had not been duly communicated, given the failure of its
own employees to respect the authority of internal policy. In 2003, BB adopted an internal policy stating
the treatment to be accorded to legal documents; this policy was redacted on one page in English. In
virtue of this internal policy, all documents were to be forwarded to BB’s legal department in BC, which
was not done by the BB representatives who received the documents.
Issue(s): Is the failure of BB employees to respect internal procedure grounds to revoke the judgment
rendered?
Held: No. Motion for revocation of judgment dismissed (overturned on appeal).
Legal Reasoning- Julien, JCS:
 The documents were duly delivered by an officer of the court to people in authority
representing BB, specifically, a manager of sales, director of merchandises and a store manager,
in two separate locations. This conforms to article 130 CCP, though none of the employees in
question claim to have had knowledge of BB’s internal policy, and therefore failed to respect it.
 A motion to revoke a judgment imposes on the court the evaluation of the arguments of the
two parties in light of two principles : the principle of the stability of judgments, and the right to
be heard before being convicted
 The right to be heard, (art 5 CCP) provides for the possibility that a judgment be rendered
against a party that was duly called. BB claims it was not duly called
 Pardoning this behaviour weakens the authority of the court. This authority rests on the
importance that litigants accord to the judicial decisions and the procedures that serve them
validly
 It is not to the party bringing the action to know exactly to whom in the BB corporate structure,
nor in which province they must deliver legal documents so that BB feels duly called and
sufficiently concerned to react.
 It is BB’s responsibility to assure competent employees that are apt at making the decisions and
taking the measures necessary to respect the responsibilities entrusted to them.
 The proof offered within the declarations that was filed demonstrates that the alleged policy
was not known, nor followed by the people designated by BB to manage its institutions in QC.
 In this case, BB did not demonstrate that it brought, to respond to this complaint, the diligence
that a reasonable person offers an important business affair.
95
Ratio: See Court of Appeal judgment.
Facts: See above
Issue(s): Should BB be heard by the court?
Held: Yes, appeal allowed. Case returned to superior court so the motion for revocation of judgment can
be heard.
Legal Reasoning – Rochon JCA:
 In the matter of procedure, the courts need to display flexibility, as per article 2 CCP, so that the
rules of procedure serve to make the law fair.
 As established in Restaurant Orlando c. Vitrerie Brière, “the step of a reception of a judgment
revocation serves exclusively to filter and eliminate insufficiently founded, late or frivolous
requests” (p.3).
 The nine sworn declarations, that explain the circumstances that led to the default judgment,
were sufficient to support the request for a judgment revocation.
 In addition, the request was deposed within the allotted time period
 The request is properly founded and on time and therefore should be allowed.
Ratio: Courts need to display flexibility in matters of procedure to ensure that the law is fair.
E.N. c. J.M., 2011 QCCS 3120
Facts: The man and the woman were in “vie commune” for 11 months. Madame asked for sole
guardianship (custody) of the child who is now 16 years old because she’s been in charge of the
daughter since the separation.
 Madame has been living with her daughter at her parents’ home. The father hasn’t made any
contact despite having their contact info.
 They didn’t have a reasonable way to reach him. The Tribunal authorized that they inform him
of this action over Facebook. He corresponded with Madame’s lawyer over Facebook, and he
refused to give any other contact information.
 He never showed up in court to contest the claim for guardianship.
Issue(s):
1. Is communication over Facebook sufficient given his non-responsiveness?
2. Can he be forced to pay child support?
Held:
1. Yes. The mother gets custody of the daughter.
2. No. They don’t have enough information about his employment to properly determine a
payment schedule.
Reasoning: There was no other way to contact him.
Ratio: Facebook is a reasonable way of contacting someone when no other method of communication is
possible.
Notes: This summary is about as long as the case. Just in English.
Legislation/Principles/Rules
1. ALI/UNIDROIT Principles 5, 11.3, 12
2. CCP, arts. 17, 99-100, 102, 170-172[oral defence] (pleadings); 109-110, 115 (notification), 168
(motion to dismiss)-169 (motions), please skim 116-136 (types of notification – bailiff, personal,
intermediary, mail, delivery, 133=technology) + 139 (things that have to be notified by bailiff) + 148
(service/notification) + 180 (default judgment – notice for trial if D failure to show up),
3. ON Rules of Civil Procedure, RR. 16.01-16.04 +16.06.1 (service), 25.01-25.03, 25.06, 25.10, 27
(counterclaim), 28 (cross claim)29 (third party pleading) (pleadings), and 18 (delivery of defence or
notice to D within 20 days) 19 (default)
96
4. US Federal Rules of Civil Procedure, R. 8
Jurisdiction, Choice of Forum Clauses, and Enforcement of
Foreign Judgments
Class notes:
Subject matter jurisdiction
 Which court?
 Which geographic area?
Where to Institute Proceedings
 Rules on Internal Jurisdiction
o Within a given judicial system, i.e. in ON or QC
o Allows plaintiff to determine where to institute the proceedings
o Different approaches
 There are limits on where a claimant can make their claim
o Why would we limit? Why can’t the claimant make their claim n’importe ou?
 Practical questions – where are the witnesses and implicated persons
 Lien entre le litige, les parties, et l’endroit
 Protéger la partie le plus faible
 Fairness – prévisibilité
 Important to know where you can sue or where you might be sued?
Policy considerations
 Party autonomy/convenience
o Plaintiff should be entitled to choose
 Fairness to defendant/predictability
o Connection to claim
o Connection to defendant
 Administration of Justice/efficiency/open court
o Community interest
 Those who have an interest in a proceeding are those who live in the affected
community. Those folks should have access to the litigation – shouldn’t be held
somewhere far away
o Resource allocation
 Propotionality
o Plaintiff’s choice has to be reasonable (not frivolous or vexatious)
Now we will see how these policy considerations are implemented in QC and ON:
Approach in QC CCP/NCCP
Art 68 CCP
Art 41-46 new CCP
 Art 41: domicile of defendant
o General principle: on poursuit le défendeur là où il habite
 Art 42 : « At the plaintiff’s option »
o Idea of choice
o Where the contract was made/where the injury was suffered
97
o
On voit l’idée que: Le demandeur a contrôle et une option. Can’t choose n’importe ou, is
limited in the choices, but still has some choice
Ontario Rules of CP
 Place of Commencement (venue) Rule 13.1.01
 If the law doesn’t specify, “the proceeding may be commenced” basically n’importe ou. That is a
big difference.
 13.1.02
o Transfer to a different jurisdiction is possible IF in the interest of justice, having regard
to a list of considerations. See the policy considerations in this list
o (iv): local community’s interest
o (viii): whether judges and court facilities are available
 So the system in ON and QC is pretty different
International Jurisdiction
 International or interprovincial litigation
 Parties from different states
 Cross-border transactions
 Claims connected to more than one state
Issue: as between provinces or states, where can you institute proceedings?
When can State A claim jurisdiction over a person from State B or over an action that arose in State C?
Are there different considerations for a plaintiff who wants to sue someone in a different state than
someone who wants to sue someone in a different town but within the same state?
 Generally plaintiffs will sue in their own jurisdictions. It’s easier. But defendants may not
appreciate this. What about the principle of following the defendant? Same problem as before:
shouldn’t defendant be able to predict where they might be sued?
Policy Considerations
 Party/autonomy
 Fairness to defendant/predictability
 Administration of justice/efficiency
o Should we spend public money resolving disputes that arose elsewhere?
 Proportionality
Potential limits on court jurisdiction imposed by
 Public international law (internationally)
 Constitutional law (interprovincially)
Constraints on international jurisdictions
Public International Law
 No formal constraints on rules of court jurisdiction themselves
 Only limit is on enforcement of law or judgments outside borders
o Extradition is criminal law
o Compare possibility of default judgment in civil cases
 Judgment can be rendered against absent defendant
 Only issue will be enforcement of judgment abroad
98
Constitutional law in Canada
 Territoriality (s 92 provincial powers “’in the province”)
 Morguard Investments v De Savoye (1990) SCC
 Hunt v T&Nplc (1993) SCC
o Dans ces deux affaires, the SCC found a “principle constitutional implicite” that …
Constitutional constraints on provincial rules of jurisdiction in interprovincial cases
 “real and substantial connection”
o To the defendant
o To the claim
 Consent of the parties
 (see Beals)
Ali/UNIDROIT Principles of transnational Civil Procedure
2.1
2..1.1
2.1.2
2.4
 Generally similar to what SCC said in Hunt and Morguard
 But “substantial connection” is still pretty vague
QC rules – in the Civil Code
Title Three – International Jurisdiction of QC Authorities
Chapter I : General Provisions
3134: defendant is domiciled in QC
 Kind of an anomaly to have all this procedural stuff in here, but during the reform of the civil
code, the legislature really wanted to include a bunch of private international law, so it ended
up included
 This rule is the same rule for internal jurisdiction
 Even if the claimant is not in QC, and if the transaction didn’t happen in QC, the case can still be
heard in QC. On the other hand, a Quebecer wanting to sue a New Yorker is not covered by this
general rule.
 After 3134: special rules for different types of litigation
 3148: QC authorities have authority in the following cases:
o (3) the fault was committed in QC, injury suffered in QC, contract performed in QC
 Hunt and morguard created constitutional principles about this (“real and
substantial connection) so…. Do these rules respect this principle? -> will see
this in one of the cases
o (4) by agreement
o (5) D has “submitted” to the jurisdiction
Ontario, “common law” approach in Canada=no legislation
 Case law developing since Morguard to refine jurisdictional rules and ‘real and substantial
connection’
 Initial link to rules of service ex juris
o Ontario rule 17.02
 Lists where this is allowed
99
o
o

Service “ex juris” – service outside of jurisdiction – happened in England first
But after Hunt and Morguard, people started saying: this is about service, not about
jurisdiction, even if you are allowed to serve someone, you shouldn’t be allowed to sue
them! Lots of litigation. Finally Van Breda in 2012
 Van Breda said: it’s true the procedural rules are not enough on their own to
establish jurisdiction
No longer connected to rules of service
o Presumptive connecting factors approach developed in Van Breda (2012) SCC
Van Breda v Club Resorts (Lebel J writing a mini CCQ for ON?)
 Presumptive connection for tort claims
o The defendant is domiciled or resident in the province
o The D carries on business in the province
o The tort was committed in the province
o A contract connected with the dispute was made in the province
 SCC also indicates that CONSENT grants valid jurisdiction to the court
Statutory Approach
BC Court Jurisdiction and Proceedings Transfer Act
S3
 D ordinarily resident
 Real and substantial connection
S 10
Compulsory vs Consensual?
 Plaintiff can choose but defendant can resist!!
 Transborder means multiple connections
o Likely more than one State’s courts will have jurisdiction
 Forum non Conveniens – discretion to stay proceedings
o Art 3135 CCQ, Ontario rule 17.06
o Van Breda v Club Resort
o BC CJPTA art 11
Compulsory vs Consensual?
 Plaintiff and defendant can choose
o Explicit choice – agreement of the parties
o “forum selection clause” – excludes all courts other than the chosen one
 Art 3148 CCQ; Grecon, ZI Pompei
 NCCP art 40(3); BC CJPTA art 3(c)
o “arbitration clause” – excludes courts all together
o Implicit choice: defendant submits
 318 CCQ; BC CJPTA art 3(); Van Breda
 This is different that subject matter jurisdiction – can’t consent to doing small
claims in non-small claims court
 Judge will remove themselves for subject matter juris. But geographic
jurisdiction is different.
 What policy considerations might justify this?
100

Difference between droit interne and droit international
o In ON this is clear, in QC it is not clear 31.01 vs new code **
Geographic Jurisdiction
Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (excerpt)
Facts: Ms. Van Breda was seriously injured (paralyzed) while on vacation in Cuba. They brought a
claim in Ontario. The Defendants brought a motion that Ontario had no jurisdiction, or (in the
alternative) should refuse jurisdiction on the basis of forum non conveniens.
Issue: Can an Ontario court assume jurisdiction over actions? If so, should they decline to do so on the
basis of forum non conveniens?
Holding: not in excerpt (in class I think she said that it was found to be sufficiently connected)
Reasons: Lebel J
How to decide jurisdiction
 Provinces are free to develop their own appropriate frameworks for the assumption of
jurisdiction. One of the issues in making these decisions is that they are made early, often as
interlocutory decisions, on the basis of the pleadings only, without the full benefit of
evidence.
 Justice and fairness demand a stable, predictable regime of deciding. Parties should have
some certainty about whether or not a court will assume jurisdiction. Sometimes the need for
certainty will conflict with fairness. The challenge is to reconcile the two.
 The goal of the modern conflicts of law system rests on comity. The principle of comity is an
attitude of respect for and deference to other provinces and their courts.
 The preferred approach in Canada is to rely on a specific factors, which are given presumptive
effect, rather than a regime of pure, individualized judicial discretion.
o Eg. CCQ has rules about specific facts linking subject matter of the litigation to the
jurisdiction (real and substantial connection).
o CJPTA also has such rules.
 The core of the Van Breda-Charron test (?) is the connection the plaintiff’s claim has to the
forum. But this test does not oust other private international law bases for court jurisdiction,
like defendant’s consent to submit to court’s jurisdiction.
 Plaintiff must establish one or more presumptive factors. If they do, they will be presumed to
be in the correct forum, and it will be up to the defendant to prove otherwise.
 If there is no presumptive factor, courts should not assume jurisdiction, even if there a bunch
of other, non-presumptive factors present.
Presumptive factors
 Presumptive factors must be objective, not about things like order, efficiency or fairness
 Non-exhaustive list of presumptive connecting factors (for tort claims, at least) (and starting
with things that are found in Ontario’s rules of civil procedure) (see para 90):
o These factors entitle a court to assume jurisdiction
o Defendant is domiciled or resident in the Province
 Note: plaintiff being resident or domiciled in the jurisdiction is not a strong
enough factor on its own
o Defendant carries on business in the province
 Note: need to be careful. Having a website that is accessible in a particular
jurisdiction is not enough, for example. Advertising alone may not be enough
either. Depends on the circumstances.
o The tort was committed in the province (the “situs of the tort”)
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o A contract connected with the dispute was made in the province
 Factors without presumptive effect:
o Where the damage is sustained might be a factor in some cases (for cases of
defamation, definitely, because of the nature of the tort), but in other cases it is less
clear. An injury sustained in one place, but where the pain and suffering was felt in a
different place would not be. So, no presumptive effect for this factor.
Things a court should consider when adding new things to the list of presumptive factors:
 Para 91: (1) Similarity of the connecting factor with the recognized presumptive connecting
factors (b) Treatment of the connecting factor in the case law; (c) Treatment of the
connecting factor in statute law; and (d) Treatment of the connecting factor in the private
international law of other legal systems with a shared commitment to order, fairness and
comity.
Rebutting the presumption
 Burden rests on the party challenging the jurisdiction. “That party must establish facts which
demonstrate that the presumptive connecting factor does not point to any real relationship
between the subject matter of the litigation and the forum or points only to a weak
relationship between them” (para 95)
 If a case has multiple elements, like tort element + contract element, or multiple torts, and
court decides it has jurisdiction over one of those elements, it must assume jurisdiction over
the entire claim. It would be fair to have to split things up between different jurisdictions if it
is all related to the same case.
Doctrine of Forum Non Conveniens (FNC) and the Exercise of Jurisdiction (para 101)
 Clear distinction should be drawn between existence of jurisdiction and exercise of
jurisdiction.
 FNC comes into play when jurisdiction is established.
 Once jurisdiction is established, case will proceed unless defendant invokes FNC. Up to the
parties to raise this issue, not the court.
 Up to the defendant to show why court should decline jurisdiction. Have to use the same
analytical approach as above to show why another forum has a stronger connection to the
case, or would be a better forum. The burden to meet is that the other forum is “clearly more
appropriate”
 Impossible to have an exhaustive list of factors to consider when considering FNC. Some are:
o Convenience and expense for parties & witnesses
o The law to be applied in the proceeding
o Desirability of avoiding multiple proceedings; or conflicting decisions in different
courts
o Enforcement of eventual judgment
o Fair and efficient working of Cdn legal system as a whole
 In QC, similar factors, but 3135 CCQ makes clear FNC is exceptional
 Not a matter of flipping a coin – has to be shown that the other jurisdiction is clearly better.
Ratio: Jurisdiction can be claimed where certain presumptive factual factors are present, unless the
other party shows that those factors do not actually prove a real and substantial connection to the
province. Once jurisdiction is established, it will be used, unless one of the parties raises Forum Non
Conveniens and shows that another forum would clearly be better (not just equivalent). Forum non
conveniens is an exceptional remedy.
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Note: the CJPTA is mentioned numerous times in this judgment. I don’t really know what those are….
Rules of some kind, but I don’t know which ones. = “Court Jurisdiction and Proceedings Transfer Act”
– in BC, SK, others
Choice of Forum Clauses
Z.I. Pompey Industrie v. ECU Line NV, 2003 SCC 27 (esp paras 19-21, 39-40)
Facts: The respondents, ZI filed an action before the Federal Court [in Canada] for damages because their
cargo was allegedly damaged while in transit by rail. The goods were transported by sea from Belgium to
Montreal[hence the filing an action in Canada], where they were unloaded and carried by train to Seattle.
The bill of lading contained a forum selection clause stating that the contract shall be governed by the
law of Belgium, and any claim or dispute arising shall be heard by the courts in Antwerp (Belgium).
ECU, the appellants brought a motion to stay [ to put a stop to] the proceedings because the contract
stated that disputes must be heard only in Belgium, and yet the respondents filed an action in Canada.
Judicial History: A prothonotary denied the motion. The Federal Court and Federal Court of Appeal,
dismissed the appellant’s motion to set aside the prothonotary’s order.
Issue(s): 1. What is the proper test on a motion brought for a stay of proceedings to enforce a forum
selection clause? 2. Does the test contemplate if there was fundamental breach?
Held: 1. Strong cause test. 2. No.
Reasoning (Bastarache J.):
1. The Stay of Proceedings [para 19-21]
Pursuant to s. 50(1) of the Federal Court Act , the court has the discretion to stay proceedings if the claim
is proceeding in another court or jurisdiction, or if it is in the interest of justice. This judicial discretion
has been governed by the “Strong Cause” Test (The Eleftheria- England):
The burden of proving such strong cause is on the plaintiffs. The court should consider the following
issues:
a) Where the evidence is situated (and effect on convenience and expense of trial)
b) Whether the law of the foreign Court applies and, if so, whether it differs from English law in any
material respects
c) With what country either party is connected, and how closely
d) Whether the defendants genuinely desire trial in the foreign country, or are only seeking procedural
advantages
e) Whether plaintiffs would be prejudiced by having to sue in a foreign court (inability to enforce a
judgment, prescription, unlikely to get a fair trial)
Forum selection clauses are to be encouraged by courts with enforcement because they create
certainty and security in transaction. They are derivatives of order and fairness, which is essential in
Private International Law.When there is a Forum selection clause, the starting point is that parties should
be held to their bargain and the plaintiff should have to show the court why they shouldn’t be bound by
their contractual obligations.
By contrast, in a forum non conveniens [a doctrine whereby courts may refuse to take jurisdiction over
matters where there is a more appropriate forum available to the parties] the burden is on the defendant to
show why a stay should be granted.
2. Fundamental Breach-Should the court consider issues arising under the contract when trying to decide
the appropriate forum?
 No. Choice of forum is a procedural question; the breach is a substantive question. Substantive
questions should be left to the decision maker in the forum agreed upon
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Canadian Restatement of the Strong Cause Test[paras 39-40]: in the absence of applicable legislation,
the proper test for a stay of proceedings is: Once the court is satisfied that the choice of forum clause
validly binds the parties, the court must grant the stay of proceedings applied for by the defendant unless
the plaintiff can show sufficiently strong reasons why it would not be reasonable or just in the
circumstances to require the plaintiff to adhere to the terms of the clause.
Application to the facts: the appellants preferred to litigate in a familiar jurisdiction not merely for
procedural advantage; there are Belgian and French witnesses( reasonable connection with Belgium); any
time bar which may preclude the respondents from bringing their case in Belgium has been waived; no
security has been posted; and the enforcement of a Belgian judgment against the appellant should present
no particular difficulties.
However arguments in favour of the respondent are: that Belgium conducts its proceedings in Flemish
which is limiting for witnesses and cross-examination; and, there may be more delay in Belgium.
Ultimately the court issues a stay of proceedings in favour of the appellant due an error in law made by
the prothonotary.
Ratio: The strong cause test applies for determining whether a stay of proceedings should be granted
based on a forum selection clause. Once the court is satisfied that the choice of forum clause validly
binds the parties, the court must grant the stay of proceedings applied for by the defendant unless
the plaintiff can show sufficiently strong reasons why it would not be reasonable or just in the
circumstances to require the plaintiff to adhere to the terms of the clause.
GreCon Dimter Inc. v. J. R. Normand Inc., 2005 SCC 46 (excerpt)
Facts: This case is an action in warranty brought by a Quebec importer, against a German manufacturer,
of a choice of forum clause the parties have opted for in their contract for a foreign authority. In this
context, diametrically opposite conclusions are reached depending on whether the jurisdictional
connection is determined by applying art. 3139 or art. 3148, para. 2 of the CCQ
Judicial History: The QCCA unanimously held that, despite the existence of the choice of forum clause
directing the parties to a German court, the action in warranty brought by the Quebec importer had to
be heard by the Quebec court that was hearing the principal action.
Issue(s): Did the court of appeal err in law by denying the parties the declinatory exception based on the
existence of a choice of forum clause in their contract in favour of a foreign authority?
Held: Yes, the exception should be allowed.
Legal Reasoning – McLachlin CJ :
Primacy of Autonomy of the Parties
• Parties to a contract generally give effect to their intention to exclude a dispute from an
authority’s jurisdiction by means of an arbitration clause or a choice of forum clause. These
clauses foster certainty and foreseeability in international commercial relations, because they
enable the parties to provide in advance for the forum to which they will submit their dispute.
• These clauses provide international commercial relations with the stability and foreseeability
required for purposes of the critical components of private international law: order and fairness.
As such, to recognize the usefulness and effectiveness of choice of forum clauses and
arbitration clauses is consistent with the general principles of private international law.
• Article 3148 CCQ establishes the general framework that delineates the jurisdiction of a Quebec
authority in relation to contracts in proceedings based on personal actions of a patrimonial
nature.
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•
This article also recognizes the primacy of the autonomy of parties: although the legislature did
confer jurisdiction on the Quebec authority on the basis of the criteria of jurisdictional
connection, it was careful to give the parties the ability to choose to oust the authority’s
jurisdiction when they wish to entrust current or future disputes between them that arise out of
a specific legal relationship to a foreign authority or an arbitrator.
• The legislature’s intention, in enacting art. 3148 CCQ, to disregard the line of cases in which
choice of forum clauses had been held to be invalid also attests to the importance attached to
this principle.
• art. 3148, para. 2 CCQ is based on arts. 5 and 6 of the Convention on the Choice of Court, the
purpose of which is to recognize and give full effect to choice of forum clauses. The general
principle of that convention is in fact that exclusive choice of forum clauses are binding.
• The wording and legislative context of art. 3148, para. 2 CCQ confirm that in enacting the
provision, the legislature intended to recognize the primacy of the autonomy of the parties in
situations involving conflicts of jurisdiction.
Limits on autonomy of the parties
• Certain limits are imposed on the expression of the autonomy of the parties. Art. 3151 CCQ
confers exclusive jurisdiction on a Quebec authority over actions founded on civil liability for
damage suffered as a result of exposure to or the use of raw materials originating in Quebec. In
such cases, a choice of forum clause cannot oust the jurisdiction of the Quebec authority. Art.
3149 also confers jurisdiction on a Quebec authority in cases involving consumer contracts or
contracts of employment, and the waiver of such jurisdiction by the consumer or worker may
not be set up against him or her.
• In both cases, the language used by the legislature indicates a clear intention to disregard the
autonomy of the parties, or to limit it, and this suggests that when the legislature’s intention is
to limit the ability to oust the jurisdiction of the Quebec authority by agreement, it says so
expressly.
• Whether the jurisdiction of the Quebec authorities is ousted in a specific case will be decided on
the basis of the wording of the jurisdiction clause adopted by the parties. The clause must be
mandatory and must clearly and precisely confer exclusive jurisdiction on the foreign authority.
• There must also be a meeting of minds between the parties; otherwise the clause is invalid.
• The situations in which the parties’ expression of their intention will be limited arise out of the
wording of the jurisdiction clauses, the matters specifically excluded by the legislature from the
scope of art. 3148, para. 2 or the conduct of the defendant him or herself. Aside from those
exceptions, there is nothing to suggest that the legislature intended to place any further limits
on the parties’ ability to oust the Quebec authority’s jurisdiction by agreement in respect of
conflicts of jurisdiction.
Ratio: - To recognize the usefulness and effectiveness of choice of forum clauses and arbitration clauses
is consistent with the general principles of private international law
- The autonomy of the parties is prime in situations involving conflicts of jurisdiction
- When the legislature’s intention is to limit the ability to oust the jurisdiction of the Quebec
authority by agreement, it says so expressly.
Carnival Cruise Lines, Inc. v. Shute, (1990) 499 U.S. 585
Facts: Shute was injured on a cruise ship in international waters and alleges it is due to CCL’s
negligence. Shute paid an agent in WA, the payment was forwarded to FL, and the tickets sent back to
the Shutes in WA. The contract said all litigation must be in FL.
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History: CCL moved for summary judgment re forum. District Court ruled both that the forum clause
was valid and that WA lacked personal jurisdiction over the Shutes because of limited contact with
WA. Court of Appeal reversed the decision, citing that “but for” CCL’s solicitation in WA, the Shutes
would not have purchased the tickets or been injured. Also, they had sufficient contact with WA to
merit personal jurisdiction. Finally, the forum clause was not freely bargained for.
Issue(s): Is the forum clause valid?
Held: Yes.
Reasoning:
(Majority): The Bremen case cites that “a freely negotiated private international agreement,
unaffected by fraud, undue influence, or overweening bargaining power, such as that involved here,
should be given full effect”. Including a reasonable forum clause in a form contract of this kind well
may be permissible for several reasons: first, a cruise line has a special interest in limiting the fora in
which it potentially could be subject to suit. Because a cruise ship typically carries passengers from
many locales, it is not unlikely that a mishap on a cruise could subject the cruise line to litigation in
several different fora. Additionally, a clause establishing ex ante the forum for dispute resolution has
the salutary effect of dispelling any confusion about where suits arising from the contract must be
brought and defended, sparing litigants the time and expense of pretrial motions to determine the
correct forum, and conserving judicial resources that otherwise would be devoted to deciding those
motions. Finally, it stands to reason that passengers who purchase tickers containing a forum clause
benefit in the form of reduced fares because of it. There is no proof that a FL forum would keep the
Shutes from their day in court. Also no proof that CCL uses FL as a forum as bad faith to discourage
litigation or seek favourable outcomes as CCL has many strong ties to FL.
(Dissent): Average passenger would not have proper notice of the forum clause. Even with notice, it’s
unreasonable as it will likely prevent would-be litigants from their day in court. Also, unreasonable
bargaining power etc.
Ratio: To contest a forum clause in a form contract, it must be proven that it is unreasonable which
will have a high burden of proof.
Enforcement of Foreign Judgments
Beals v. Saldanha, 2003 SCC 72 (excerpt)
Facts: The Saldanha’s, along with another couple, Rose and Dominic Thivy, were Ontario residents
who bought a lot in Florida in 1981. They paid $4000. Three years later Rose Thivy was contacted by
people wanting to buy the lot. She said they would sell it for $8000. The offer said “Lot 1” was being
purchased, but actually the S’s and T’s were selling Lot 2. Rose informed the real estate agent of the
mistake and the change was made to the documents. The new owners (developers), however, started
building their model home on Lot 1, apparently not realizing that they had actually purchased Lot 2.
When they realized their mistake, they started an action against the S’s and T’s in Florida. The S’s and
T’s defended themselves, but the action was dropped because it had been filed in the wrong location.
A second action was started in Sept. 1986. Rose T filed a defence on behalf of the S’s and T’s. In May
1987 and May 1990, amended complaints were served on the S’s, and no defence was filed. They
were notified of hearings and failed to appear. July 25, 1990, the Florida court found them in default.
In 1991 there was a trial to establish damages, at which they did not appear. The jury awarded
$210,000 in compensatory and $50,000 in punitive damages. When served with the judgment, the S’s
finally consulted a lawyer who said the judgment couldn’t be enforced in Ontario so they did not
contest or appeal it. In 1993 there was an action brought in Ontario to enforce the Florida order.
Because of interest, the amount owing had increased to $800,000.
Issue: what are the circumstances under which a foreign judgment should be recognized in Canada?
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Holding: The Florida judgment was properly recognized.
Reasons:
 Morguard is the case that is used in Canada to determine interprovincial recognition.
 It creates the “real and substantial connection” test.
 The same test should be applied to foreign judgments.
 Morguard modernized old rules. It was based on the principle of comity = deference and
respect for the actions of sovereign states.
 Judgements should be recognized if (1) the court had reasonable grounds for assuming
jurisdiction (thus satisfying the principle of “order and fairness” and (2) there exists a ‘real
and substantial connection” with either the subject matter or the defendant.
 Importance of facilitating the flow of people, goods, wealth (if you do business in a
jurisdiction you should be able to be sued in that jurisdiction)
 [more justification for using the same test for recognition of international judgments as is
used for interprovincial judgments]
 In this case, there was a real and substantial connection (the appellants owned land in the
jurisdiction)
 The real and substantial connection is the most important thing in determining if the foreign
court was correct to assume jurisdiction
 Once jurisdiction is established, the enforcing court can consider defences. These include:
fraud, public policy, and lack of natural justice. These defences are narrow.
Ratio: the Morguard test applies to enforcing international judgments as well as interprovincial
judgments.
Legislation/Conventions/Principles, etc.
1. ALI/UNIDROIT Principle 2
2. CCP, arts. 8, 40-48 (territorial jurisdiction), 507-508 (enforcement of a foreign judgment)
3. Code Civil du Québec (CCQ), arts. 3134 -3135, 3148-3149 (QC jurisdiction/choice of forum, 3155
(recognition and enforcement), 3164, 3168
4. ON Rules of Civil Procedure, R. 13.1, [13.1.02(2) – motion to transfer to another county]; 17.02
5. BC Court Jurisdiction and Proceedings Transfer Act, SBC 2003, c. 28
Standing, Feb. 24
Applying Jurisdiction Rules: TouchIt v View-U Ltd
How would all these vast rules on jurisdiction apply in a practical way?
TouchIt sues Vuew-U for breach of contract
Challenges jurisdiction of the NY court for not being the most appropriate
On what basis would you bring this challenge and is there any merit to it?
TouchIt is a NY company, this is where they are based
This is where it would be the most efficient, convenient, and cheapest to sue
Why would View-U want to attack this?
Look at: where was the contract entered into that they are asserting is being breached, where was it
carried out?
Where is the domicile of the defendant? Montreal
This gives the courts of Quebec prima facie jurisdiction
The K was also entered into in Montreal and the training in Toronto
Would a QC or Ontario court enforce the judgment?
The enforcement of foreign judgment focuses on the very same rules
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Quebec Rules in the CCQ
Title 3: international jurisdiction of QC
BUT
3148: In personal actions of a patrimonial nature, Quebec authorities have jurisdiction in the following
cases:
(1) the defendant has his domicile in QC
(2) the defendant is a legal person, is not domiciled in QC, but has an establishment in QC and the
dispute relates to its activities in QC
(3) a fault was committed in QC
Van Breda v Club Resorts
We need to have some presumptive connections that the court should use
This is a torts case
Presumptive factors:
(1) the defendant is domiciled in the province
(2) the defendant carries on business in the province
(3) the tort was committed in the province; and
(4) a contract connected with the dispute was made in the province
Standing- Who can sue?
Standing = your ability to invoke jurisdiction
Subject matter jurisdiction
What geographic jurisdiction
And who can invoke that jurisdiction?
To invoke the jurisdiction of the court you need:
1. Legal capacity to sue - can be an issue if you are a minor , or an incapable major
Article 89: tutors, curators, other reps of people who can't exercise their rights act in their capacity
However these curators needs lawyers
Legal persons in QC are also not allowed to go to court without a lawyer (bar small claims)
2. Raise a genuine legal issue or dispute (a live controversy)
3. Sufficient personal or public interest
Genuine Issues v Mootness
No abstract legal opinions (references), aside from the government
No private references can be brought to the court
See article 10(3) New CCP
1 caveat/exception
Caveat: declaratory judgment (article 142 NCCP and s.97 Ontario Courts of Justice Act)
Why shouldn’t courts hear cases that don't present 'live controversy' or a 'genuine problem'?
Exceptions
The sole exception is that the Court has discretion to hear a case despite mootness (Borowski)
 When the adversarial relationship remains
 National importance or social cost in leaving the matter undecided
 In the interest of the judicial economy
Legal Standing
1. Personal Standing
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Individual affected is the one who must sue
There must be 'personal interest' (even in class action)
Sometimes legislation deems standing
Ex: article 316 CPA
Article 79 New CCP re the Attorney General
Sometimes laws give you the deemed interest
The CPA says the president has interest to ask for certain court orders and injunctions
2. Public Interest Standing
There are reasons to reject public interest standing
Same reasons given by the court to resist moot questions: scarce judicial resources
When will courts exercise discretion to allow it?
There is no other reasonable and effective manner in which this issue can be brought to court
Why didn’t the court allow it in Alliance for Marriage and Family?
 Alliance was an intervener on the side of barring 3 people from being on a birth certificate (the
mother father, and gay partner of one of them)
 Interveners are not parties to the case, they pay for some of it
 Because a party doesn't want to take an action, it’s the same thing as If a party doesn't want to
appeal - reason not to hear a case
 Alliance intervenes because they want to appeal this, they ask to become a party, but the
answer is no because they have no interest in the outcome and cannot revive a case in which
the parties stopped caring
Why did the court allow for it in Downtown Eastside Sex Workers?
The question to ask: would the Canadian Bar Association case be decided differently after the Sex
Workers case?
The issue in CBA is access to justice, they don’t want to gain anything personal, they represent lawyers
and they are saying there's not enough access to legal aid for poor people
Yet this issue is being denied access to justice
Related Issues
Make an explicit link between two topics that are related to today's class:
1. Intervener status
An interested organization that has the money to help a person to bring their case to the SCC finds a
person
The organization intervenes
It is not practically possible for a personal plaintiff to make it to the SCC if they don’t have the where with-all
2. Vexatious litigants
The right to invoke the jurisdiction of the Court
Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 (excerpt)
Facts: Plaintiff attacked validity of s. 251 of Canadian Criminal Code relating to abortion on the grounds
that it contravened the life and security and the equality rights of the foetus, as a person, protected by
ss. 7 and 15 of the Canadian Charter. At trial and the court of appeal it was found that ss7,15 do not
apply to fetuses. But before case reached SCC, s. 251 was struck down by SCC in R. v. Morgentaler.
Issue(s): Is the appeal moot? Held: Yes.
Reasoning: (Sopinka J.): The doctrine of mootness is part of a general policy that a court may decline to
decide a case which raises merely a hypothetical or abstract question. An appeal is moot when a
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decision will not have the effect of resolving some controversy affecting or potentially affecting the
rights of the parties.
The 2-step procedure for determining whether or not an appeal will be heard:
1. Is the issue moot? Must determine whether the requisite tangible and concrete dispute has
disappeared rendering the issues academic. The particular circumstances of the parties to an action
may also eliminate the tangible nature of a dispute. For ex The death of parties challenging the
validity of a parole revocation hearing
2. If yes, should the court exercise its discretion to depart from policy and hear the case? Courts may
be guided in the exercise of their discretion by considering the underlying rationale of the mootness
doctrine. The three factors in the underlying rationale of the mootness doctrine are:
i. Court’s competence to resolve legal disputes rooted in adversarial system – assures full argument of
sides
ii. Concern for judicial economy – must ration scarce judicial resources among claimants: is the case
worthwhile to decide?
o Yes, if the court’s decision will still have a practical impact on the rights of the parties
o Yes, if the case which gave rise to the litigation is of a recurring nature but of a brief duration –
such an important question might consistently evade review
o Yes, if it raises issues of public importance that it is in the public interest to decide: but national
importance is not enough. There must be some social cost in leaving the matter undecided and
the law uncertain.
o Need to maintain flexibility
iii. Need for courts to be sensitive to the effectiveness or efficacy of judicial intervention and
demonstrate a measure of awareness of the judiciary's role in our political framework– ie must be
sure that its pronouncement in the absence of a dispute does not intrude on the role of the legislative
branch
Application the factso The absence of an adversarial relationship was of little concern: the appeal was argued as fully
as if it were not moot.
o With respect to judicial economy, none of the factors justifying the application of judicial
resources applied- A decision as to whether ss. 7 and 15 of the Charter protect the rights of the
foetus is not in the public interest due to the potential uncertainty that could result from such a
decision absent a legislative context.
o The Court, if it were to exercise its discretion, would intrude and pre-empt a possible decision of
Parliament by dictating the form of legislation it should enact
o The appellant also lacked standing to pursue this appeal given the fact that the original basis for
his standing no longer existed- the impugned sections have been struck down
Ultimately the Court will not exercise its discretion to hear the appeal;
 Although both sides were vigorously argued, a decision would have no practical effect,
and the case will come up again.
 It is of national importance, but there is no cost to leaving it undecided – Borowski is
almost asking for a private reference, infringing on role of executive, pre-empting
legislative action
Ratio: Cases are rendered moot when there is no live controversy left in the case; court has discretion
whether or not to hear a moot case. They must look at the three factors underling the rational of the
mootness doctrine.
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Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence
Society, 2012 SCC 45 (excerpt)
Facts: This case is sort of parallel to the Bedford decision. The Society is run by and for sex workers,
and K is an ex-sex worker.
Issue(s): Does the Society have standing to challenge the constitutionality of Criminal Code provisions
involving prostitution? Does Sheryl Kiselbach have private interest standing? Held: Yes.
Reasoning: Unanimous court, delivered by Cromwell J. “A person need only to show that he is
affected by it directly or that he has a genuine interest as a citizen in the validity of the legislation and
that there is no other reasonable and effective manner in which the issue may be brought before the
court” (from Borowski).
 Traditionally, only those specially affected by an issue can litigate it. But in public law, this is
relaxed. Three factors to consider regarding standing: (1) whether the case raises a serious
justiciable issue, (2) whether the party bringing the action has a real stake or a genuine
interest in its outcome and (3) whether, having regard to a number of factors, the proposed
suit is a reasonable and effective means to bring the case to court. The factors should be
assess and weighed cumulatively, in light of the underlying purpose of limiting standing and
applied in a flexible and generous manner that best serves those underlying purposes.
 The Purpose of Standing Law: Limits are necessary, but the Charter has relaxed it some.
Reasons for limits involve keeping busybodies away (floodgates argument) and scarce judicial
resources; ensuring contending points of view; and the proper judicial role (and deference to
the legislature).
 The Principle of Legality: Two principles: state actions should conform to the Constitution and
statutory authority and that there must be practical and effective ways to challenge the
legality of state action. Central to the issue of PIS.
 Discretion: The question of PIS should be determined by judicial discretion in assessing the
three factors.
A Purposive and Flexible Approach to Applying the Three Factors:
(1) Serious Justiciable Issue: related to concern about the role of the courts and scare resources.
A serious issue must be a “substantial constitutional issue” and “far from frivolous”.
(2) The Nature of the Plaintiff’s Interest: related to scare resources and the need screen out
busybodies. The PL must have a real stake in the proceedings or is engaged with the issue
they raise.
(3) Reasonable and Effectives Means of Bringing the Issue Before the Court: Sometimes
described as necessary that there was no other way to bring the issue to court. Cromwell
suggests instead as requiring consideration of whether the proposed suit is, in all of the
circumstances, and in light of a number of other considerations, a reasonable and effective
means to bring the challenge to court.
On the facts, the issue is serious and justiciable. Both the Society and K are deeply engaged in the
issue. Even though there is parallel litigation (Bedford), does not mean the current litigation is not a
reasonable and effective means, but may temper against it, though issues with it being in another
province. Though there may be other more legitimate parties, vulnerabilities that prevent them from
becoming parties (which is more involved than witness) may allow another group to gain standing as
a reasonable and effective means. The three factors are met.
Ratio: Public interest standing can be granted when the three factors are met when interpreted
purposively.
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Alliance for Marriage and Family v. A.A., 3 [2007] SCR 124
Facts: A lesbian couple had a child and wanted both of them to be listed as parents of the child,
along with the biological child but the Superior Court of Justice dismissed the application. The
Alliance had applied to intervene but was dismissed when A.A.’s application was dismissed. The
decision was appealed to the Ontario Court of Appeal and the Alliance was granted leave to
intervene. The Attorney General didn’t take part in the appeal and the Appellate Court reversed
the decision. Neither the parents nor the AG appealed the appellate verdict. The Alliance is
trying to get added as a party to the case in order to appeal it.
Rule 18(5) states: In any proceeding, the Court or a judge may order that a party be added,
substituted or removed if, in the opinion of the Court or the judge, the addition, substitution or
removal is necessary to enable the Court to adjudicate the questions in issue.
Issue(s): Does the Alliance have standing to be added as a party under Rule 18(5) of the Rules of
the Supreme Court of Canada? Held: No
Reasoning: This application is not about whether an application for leave to appeal would
involve issues worthy of consideration – it is about the procedural issue of interpretation and
application of Rule 18(5).
The Court’s procedure is flexible but has limits. The Alliance is attempting to substitute itself for
the Attorney General. It is concerned about the impact of the judgment, but has no specific
interest in the outcome of the litigation. The Court has never allowed a private applicant under
this rule to revive litigation in which it doesn’t have a personal interest. Additionally, the Alliance
doesn’t explain how it meets the test for public interest standing – it only says that the
judgment will otherwise be “unappealable.”
Ratio: Parties seeking standing under 18(5) must have a personal interest in the outcome of
litigation
Note: The judgment mentions the public interest standing test but doesn’t explain it at all – not
sure if that’s an exception to the ratio
For Discussion
Canadian Bar Association v. British Columbia, 2006 BCSC 1342 and 2008 BCCA 92
(excerpts)
Facts: The CBA is claiming that legal aid services in BC are insufficient and as such violate the Charter,
other unwritten constitutional principles, and international human rights law. They are seeking a
declaration that the current legal aid services are unconstitutional, and an order that the government
do a better job (and that the court have continuing jurisdiction to supervise the order). The AG is
seeking to have the claim struck on the basis that the CBA has no standing. The CBA is seeking public
interest standing on behalf of people living on low incomes.
Issue: Does the CBA have public interest standing in this case? Holding: No
Reasons:
 The right to civil legal aid in certain circumstances has been established in New Brunswick v
GJ.
Public Interest Standing (PIS): the Quartet
 Four cases outline PIS: Thorson v Canada (AG) 1975 SCC, Nova Scotia Board of Censors v
McNeil, 1976 SCC, Canada v Borowski, 1981 SCC, Finlay v Canada, 1986 SCC.
 Traditional rule was that only the AG could bring cases on behalf of the public. This started to
change with Thorson when Laskin CJ said PIS could be granted at the discretion of the court
due to “"the right of the citizenry to constitutional behaviour by Parliament"
 Borowski summarized three-part test to establish PIS:
112
o
o
(1) there is a serious issue as to the invalidity of the legislation;
(2) the plaintiff is affected directly by or has a genuine interest in the validity of the
legislation; and
o (3) there is no other reasonable and effective manner in which the issue may be
brought before the Court.
Can Standing be Decided as a Preliminary Matter?
 It depends on the nature of the issues raised and whether the court has sufficient material
before it, in the way of allegations of fact, considerations of law, and argument, for a proper
understanding at a preliminary stage of the nature of the interest asserted (at 617).
 In this case, it can be decided as a preliminary matter
The Three Part Test
Part 1: serious issue (CBA fails to meet this test)
 The CBA tried to say that the three part test asked the questions; “(1) Is there a serious issue?
(2) does the plaintiff have a direct interest in the matter etc – with no reference to legislation.
 The Court says the real test refers to legislation, and this highlights a problem with CBA’s
claim – they are not challenging any specific legislation.
 All of the previous cases have carefully limited public interest standing to cases where
legislation was being challenged, or where government action was being challenged as being
outside of statutory authority. This case does not make a challenge to legislation.
 Para 47: “In the case at bar, there is no challenge to a specific governmental decision, act, or
statute. The case cannot be characterized as raising an issue with respect to the limits of
statutory, administrative, or executive authority”
 Canada and BC say that the relief sought by the CBA is not within the Court’s power to give.
This raises the question: how does non-availability of relief affect standing?
 Para 51: Standing is not merely the right to assert a legal claim, but the "right to seek
particular relief" (Finlay at 635). . . . Where a party is precluded from seeking particular relief,
the party has no standing.”
 Para 54: “In order for the intended beneficiaries of this action to obtain a meaningful remedy,
the CBA asks the court to identify the parameters of a constitutionally valid scheme of civil
legal aid. Just as Mr. Borowski was unable to advance a s. 24(1) claim on behalf of a third
party, the CBA here has no standing to assert a claim on behalf of an amorphous group of
individuals those Charter rights may have been, or in the future may be, breached by the
operation (or more accurately the non-operation) of a public program”
Part 2: genuine interest
 BC said the CBA’s interest in bringing the action was actually in conflict with the people whose
interests it claimed to be protecting. The Court did not address this.
Part 3: No other Reasonable and Effective Manner
 The CBA has failed to show that there are no other reasonable means to bring the claim –
particularly using individual claimants.
o Long list and discussion of jurisprudence.
 Para 85: “The CBA material strongly suggests that bringing this "systemic claim", rather than
any of the more traditional forms of test case, representative action, class action or individual
challenge, was a strategic choice. I conclude that there are other reasonable and effective
methods for bringing the issues before the court”
2008 BCCA 92
113

Para 3: “The Association is the national bar organization. It does not have a direct interest in
the action. Rather, success in the action, in addition to enhancing legal aid to members of the
community, would increase the quantum of legal fees paid to lawyers, many if not most of
whom are members of the Association”
 Same test as above. CBA tried to say again they only had to show a serious issue, not a serious
issue with legislation.
 The pleadings are too general, do not disclose reasonable cause of action. Para 13: “I consider
that the statement of claim does not meet the requirements of the Rules of Court. In so
saying, I do not foreclose the possibility that, properly pleaded, a claim addressing perceived
deficiencies in legal aid may satisfy Rule 19(24)”
 one of the CBA’s claims is that it is contrary to the unwritten const’l principle of judicial
independence to have judiciary drawn into poor people’s claims (bc they can’t afford a lawyer
and are self-repped and judge has to help them more)
 Court says there is no reasonable claim based on unwritten principles. No reasonable claim
on Charter either (Christie answers most of these claims).
 QCCA sees no reason to overturn BCSC decision
 On the topic of costs:
 Para 58: “Although the action is intended to assist low-income members of the public and its
spirit is commendable, I do not consider that the altruistic nature of the action should be
afforded much weight until at least the plaintiff has established it can meet the minimal test
of disclosing a reasonable claim.”
Ratio: The proper test for standing requires pleading against specific legislation or government action.
If the pleading is deficient or contains no reasonable cause of action with no attainable remedy, the
party can’t have standing.
Legislation/Rules
1. CCP, arts. 10(3), 79 [court can invite AG to intervene on public interest matters], 85 [public interest
standing], 142, 168 [motion to dismiss for lack of standing]
2. ON Rules of Civil Procedure, R. 21.01 [motion to dismiss]
3. ON Courts of Justice Act, s. 97
4. Consumer Protection Act, S.Q., chap. P-40.1, art. 316
Abuse of Access to Courts, Feb. 26, class 16
Class notes:
Types of Abusive Behaviour
 Baseless claims
 Vexatious litigation
 Strategic lawsuits against public participation (SLAPPs)
 2 issues:
o Nature of claim
o Motivation
Why We Care
 Waste of judicial resources
o Don’t want to use Jud resources on things that can’t be resolved in court room
 Can interfere with or force people to surrender rights
 Brings the administration of justice into disrepute
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
Can cause people harm (including financial)
Means/Goals of Regulation
 Early intervention and/or ongoing supervision
 Compensation
o Trying to make whole the party on the other side who shouldn’t have been sued in the
first place (but doesn’t do anything to prevent the claim from being started in the first
place)
 Punishment/Deterrence
A Code of (Mis)conduct: arts 51-56
Abuse of Procedure: If… (art 51)
 Use of procedure is
o Excessive
o Unreasonable
o Causes prejudice, or
o Attempts to defeat the ends of justice
 Art 52=what happens if we are concerned about abuse
 Art 53=potential remedies
 54=more remedies
 55= vexatious litigants
 56=pierces the corporate veil, makes directors personally responsible
o This is interesting
Allegation of abuse (art 52)
 Initial threshold: “may constitute abuse”
 Reverse onus: impugned party must show that demand or pleading is “not excessive or
unreasonable and is justified in law”
 “summarily establishes” – means not a long drawn out process
 Not clear what happens if court decided on its own initiative (language says “if a party”)
 Para 2: claim presented and defended orally
 Acadia Suburu: “assume that the pleadings are true” and if the pleadings add up to a claim, then
an early application might be unsuccessful
Consequences
 If no abuse
o Claim continues
o Possible penalties for bringing the application
 If possible abuse (eg Acadia Suburu) (53 para 2: the court MAY…)
o Claim continues
o Impose conditions
o Require undertakings
o Stay the proceeding
o Special case management
o Costs orders
 Acadia suburu: security deposit order
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Penalties for Abusive procedure
 If abuse
o Dismissal
o Strike pleadings (with/without amendment)
o Terminate or refuse an examination
o Cancel a subpoena
o Costs order
o Damages
 Compensatory damages, including full reimbursement of (extrajudicial) costs
 Punitive damages
 Rare. Entirely designed to punish and deter.
Early intervention
 One of Fabriquant’s claims went on for 19 years. (Whoa).
 Quebec
o Motion to strike pleadings
o Preliminary exception in art 165 (old code) 168 (new code)
 Para 2: may ask that claim be dismissed if it is unfounded in law, whether or not
the facts are true
 Eg: Mr. Fabriquant
o New in 2009: Abuse of procedure scheme
 Consider what gaps we might be trying to fill with this
 Ontario
o R 25.11 Motion to strike pleadings
o R 21.01 Determination of an issue before trial (motion to strike, motion to dismiss)
o NEW IN 2014 (and a bit shocking): R 2.01: General powers to stay or dismiss
proceedings where frivolous, vexatious, abusive
 Court can act on its own initiative
 Summary determination
 Applies to both proceedings and motions
Vexatious Litigant Orders
 Exception to normal rules of standing/right to initiate legal proceedings
 In Ontario, explicitly contemplated by s 140 of Courts of Justice Act
 Produtions Pixcom v Fabrikant
o NB Arts 51-56 did not exist at that time
o Inherent jurisdiction (para 21)
o Presumption/Onus (para 34)
 Story of F. He was an engineering prof at Concordia. Was refused tenure. In 1992 he sued a
number of colleagues saying they had wrongfully taken credit for his work. In 1994 he was held
for contempt of Court. In 1995 he shot four people and held some hostage. His defence was to
say the court was out of order. He was self-represented. He was held in contempt of court 6
times. Ultimately convicted. Life in prison with no chance of parole for 25 years. Once in prison,
this is when his litigation really ramped up. Sued Gazette for calling him a murderer. $900,000
claim against Concordia for provoking him into committing murder. 6 actions commenced in
federal court against penitentiary people. Sues his prison doctors for negligence.
116




Vexatious litigant order arises out of a case where he sues one of his doctors
On that same day the judge had heard 4-5 orders about F.
The case that we read refers to the vexatious litigant order.
On what basis is the order granted?
o NB 51-56 didn’t exist at the time
o Inherent jurisdiction (para 21)
 This point is challenged by a report from Nova Scotia Law Reform Commission.
On a little bit thin ice when talk about inherent jurisdiction
o Presumption/onus (para 34)
 Presumption is flipped
o VLs are often also Self-Represented Litigants
 Cost, reputation, ethics
 Impact on A2J: lawyers are actually supposed to perform a filtering mechanism
as well
What is a SLAPP?
 Strategic Lawsuit Against Public Participation
o Aka poursuite-bâillons (gag suits)
 Legal proceedings against organisations or individuals who are engaged in policy debates in the
public sphere where such proceedings are intended to limit the freedom of expression and
neutralise those individuals or organizations through the use of court proceedings to intimidate,
impoverish and distract them
Sociopolitical Concerns
 Individual rights
o Freedom of expression
o Financial and personal harm
 Systemic impacts
o Democratic process
 ….
Ontario Bill 52
 Purposes: 137.1(1)
Why SLAPPs are bad for courts
 Nature of Claim:
o Often (but not always) without substantial merit
 Intention:
o Not the resolution of a genuine legal dispute by the courts
o To force the protestors into costly litigation and thus stop them from exercising political
rights
o Which is usually inferred from the effect
 Effect
Acadia Suburua v Michaud
 Was claim without foundation
o Evidenceétest
117


o Realationship between old art 165(4) and old art 54.1
Question of purpose
o Para 78: blameworthy conduct
o Compare wording of old 54.1 to new art 51
 “regardless of intent”
o Bt see paras 89 and 106(3)
 “I expressly leave to another day….” But it doesn’t seem like we are leaving it to
another day at all!
What does the court use?
o Targeted only…
o Didn’t seem to care about being compensated – so was there no damage?
o Demand letter threatened to withdraw advertising from the station
o From that the court infers an improper purpose
History of SLAPPs
 Term originated in the US
o Interference with constitutional “right of petition”
 First cdn jurisdiction to adopt anti-SLAPP legislation was BC in 2000; repealed 5 months later!
o Debates that came up in the legislature are quite illustrative of concerns. See some of
these concerns in the Little piece.
 In QC: Rappaport 2007, amendments to the CCP adopted in 2009
 ULCC: Uniform Prevention of Abuse Act (2009)
 ON: report to AG in 2010, legislation introduced 2013, 2014
Striking a new balance
 CA notes preferences expressed by anti-SLAPP articles (paras 69 & 88)
 SLAPPs capitalise on certain historical/structural features of judicial system
o Unscreened/unfettered right to institute proceedings
o Pressures on defendants created by lawsuits
o Formal irrelevance of motivation for suit
o Inequality of arms/access to counsel
o Limited ability to recover costs/damages for wrongful proceedings
 Fits into larger trend of measures designed to allow/press courts to exercise greater control over
their processes
Vexatious litigants & SLAPPs
Productions Pixcom Inc. v. Fabrikant, 2005 QCCA 703
Facts: in 2000, Valery Fabrikant was declared a vexatious litigant. Could only start a new claim with leave
of the Chief Justice. Fabrikant appealed this order in 2001, but it was summarily dismissed. F sought
authorization to sue Astral and Pixcom for libel. Chief Justice Rolland of the QCCS refused, told F so in a
letter. F is appealing that decision. By motions pursuant to article 501 C.C.P., Astral and Pixcom seek the
dismissal of the appeal.
Issue(s): (1) What is the legal status of the reply letter of Rolland CJ? (2) If it is to be considered as a
judgment, can Mr. Fabrikant appeal it without leave? (3) Do Astral and Pixcom have the necessary status
to present a motion for the summary dismissal of Mr. Fabrikant's appeal?
Held: (1) It is a judgment. (2) No it can’t be appealed without leave. (3) Yes Astral and Pixcom have the
necessary status. Appeal dismissed.
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Legal Reasoning- Dalphond JA:
 A court has the inherent power to ensure that its process is not abused by proceedings without
any apparent reasonable ground, so as to be vexatious and harassing (art 46 CCP)
 (1) Such a response constituted a judgment, rendered after the application was taken under
advisement.
 (2) Mr. Fabrikant sought authorization to file a claim against Astral and Pixcom because of the
prohibition order. For the reasons outlined by LeBel in Morency, I am of the view that such
judgment can be appealed only with leave: “tout pourvoi contre cette décision est assujetti à
l'autorisation préalable d'un juge de notre Cour, suivant l'article 26 CCP”
 Failure to have obtained leave to appeal goes to the heart of the jurisdiction of the Court
 (3) Once Robert, C.J had ordered that the inscription in appeal be served on Astral and
 Pixcom, they were entitled to contest Mr. Fabrikant's appeal. They became parties to the
appeal. Therefore, they could make a motion to dismiss the appeal.
Notes on Vexatious Litigants/Litigation
 Once a litigant has been declared vexatious, the allegations of any new proceedings that he/she
is making and for which an authorization must be sought cannot be presumed not to be
vexatious. Therefore, such an applicant has the burden to establish prima facie the seriousness
of the claim for which he/she is seeking authorization.
 In this case, Mr. Fabrikant did not discharge the burden incumbent on him to establish prima
facie to Rolland, C.J. that his new claim was no more than another example of his predisposition
to abuse the legal system.
Ratio: - A court has the inherent power to ensure that its process is not abused by proceedings without
any apparent reasonable ground, so as to be vexatious and harassing.
- Once a litigant has been declared vexatious, he/she then has the burden to establish prima facie
the seriousness of the claim for which he/she is seeking authorization.
Acadia Subaru c. Michaud, 2011 QCCA 1037
Facts:
 A Quebec City radio host made comments on air about how Quebecois car dealerships were
unfair when compared with American prices. Considering the value of the products they sold
and the services they rendered, Mr. Michaud claimed that car dealers charged too much to
consumers. Customers “se faisaient fourrer” (were getting fucked over) and dealers were
committing “du crossage”.
 This happened the night before a big Quebec auto show, admitting some of his comments may
have gone too far.
 He later apologised on air for his comments. The car dealerships banded together and delivered
a letter demanding a more elaborate apology. They also wanted $5,000 apiece in damages;
there were 136 members. They threatened legal action in the event of non-payment.
 The demands were not met, so under article 67 of the CCP, they filed a single collective Motion
to Institute Proceedings.
 The Quebec Court partially agreed with Michaud’s arguments under 54.1 of the CCP that the
defamation suit was “improper”. They removed the punitive damages and ordered the rest
proceed to trial.
 Both sides filed appeals and cross-appeals. Michaud saying the entire claim should have been
dismissed. The car dealerships arguing that the full amount should move to trial.
Issue(s):
Appeal
1. Did the judge err in reducing the punitive damages from $5000 to $200 per count?
119
Cross Appeal Issues
1. Is the action "clearly unfounded" under article 54.1, paragraph 2 C.C.P.?
2. Is the action improper as "an attempt to defeat the ends of justice" under article 54.1,
paragraph 2 of the C.C.Q.?
3. What is the appropriate redress under article 54.3, paragraph 2 C.C.P. for appearance of
impropriety?
Held:
Appeal
1. The judge should not have been so hasty in reducing punitive damages without seeing more of
the evidence pursuant to 1621 of the CCQ.
Cross Appeal Issues
1. The action is not “clearly unfounded” under 54.1 of the CCP. (He also fails to meet the lower
threshold found in 165(4).
2. No, it is not improper. But it could have been. Even though they found a colour of right, it does
not follow that the claim from the car dealerships can’t be an attempt to defeat the ends of
justice. (Complicated and minute point. Read carefully.)
3. He is entitled to costs moving forward for what appears at a preliminary stage to be an abuse of
process.
Reasoning:
Appeal
By allowing a party to establish impropriety "summarily" (article 54.2, paragraph 1), and
by empowering the courts to sanction abuse or apparent abuse of process on that basis (article 54.3),
the legislature has sought to provide judges with tools for acting expeditiously and inexpensively when
faced with abuse or apparent abuse of process
That said, judges should exercise some caution in using this power. Especially if it’s very early in the
proceedings.
Cross appeal
A finding made under article 165(4) C.C.P. does not require proof of impropriety.
Not all actions that are "unfounded in law" can be characterized as abuses of process.
 54.1 carries with it an element of blameworthiness that is absent in 165(4).
 The remedies under 54.1 are stronger.
These points differentiate (unfounded in law) 165(4) CCP from (clearly unfounded in law) 54.1 CCP.
(It’s a bit of “All oranges are fruits, but not all fruits are oranges.”)
Fault was sufficiently demonstrated.
 Crass language can be the basis for an action in defamation where the epithets seek to ridicule
and humiliate the persons so described.
 The manner in which the comments were made could lead a reasonable person to conclude that
the car dealers wrongly took advantage of consumers to sell them worthless products in a
manner that constitutes an improper business practice.
 The apology offered two days later may or may not make good the wrong – that is a matter best
decided upon on the merits.
The plaintiffs will have the burden of showing that they were singled out, or at least damned by
association, such that the loss they claim is sufficiently individualized.
 Court refers to Bou Malhab decision which has not yet been rendered when this was delivered
which talks about finding individual loss out of a general comment.
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
Divides the class as those car dealerships that were within radio frequency and those who
weren’t.
***TEST FOR EVALUATION PROCEDURAL IMPROPRIETY***
1) one must consider whether Mr. Michaud has summarily established what may be an abuse of
process on the distinct basis of "an attempt to defeat the ends of justice";
2) if Mr. Michaud has acquitted that burden, the onus to disprove impropriety falls to the
appellants under article 54.2, paragraph 1;
3) if there is an abuse or an appearance of abuse the appropriate remedy must be identified
(article 54.3, paragraphs 1 and 2).
Merely establishing that the action in defamation “MAY” be an improper use of procedure thrusts the
burden onto the initiator of the action to show that it is not excessive or unreasonable and is justified in
law.
**DIFFERENCE IN ENGLISH/FRENCH 54.1 para 2 CODAL PROVISION***
To show an action defeats the ends of justice, you must show wrongful motive and wrongful effect. The
English provision does not reflect this.
Three aspects of the record as it stands, considered together, indicate that the action "may be
improper" in this way: the motive for the action as revealed by the demand letter; the fact that the
action was directed only at Mr. Michaud; and the fact that the appellants will give any funds they
receive as compensation for the alleged defamation to charity.
The high damage award sought is not inherently abusive because of the way they joined together to
bring the claim. When seen in this way, it is reasonable.
Because he meets the threshold of “may”, and because the case has not advanced far enough to have
all the facts, the onus falls on the car dealerships to show this is not abusive.
The dealerships did not bring forward evidence to meet this reverse onus. So, they have not succeeded
in removing the stain that the appearance of abuse has left on their action. Mr. Michaud is then entitled
to redress to that extent.
The Court of Appeal overturns the Trial Judge and says securitized amounts (65K) would be an
appropriate remedy for the harm suffered at this point of the process under 54.3 para 2 (1) using the
narrow definition of the words “certain conditions”.
This is also justified given the deep pockets of 93 car dealerships vs. 1 man since there is an appearance
of abusive action.
(SUMMARY TAKEN FROM THE JUDGEMENT ON CROSS-APPEAL ISSUES)
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;
121
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. It is not necessary to decide whether his further argument
based on the effect of the total claim on freedom of expression in public debate is enough,
on its own, to reverse the burden on the facts of this case;
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.
Ratio:
Notes: long case holy shit
Les poursuites stratégiques contre la mobilisation publique : les poursuites-bâillons (SLAPP)
(Gouvernement du Québec, 2007) (excerpt)
Prologue
 SLAPP = poursuite stratégique contre la mobilization publique or poursuite-bâillon
 Definition: a judicial process started by a business or institution to neutralize or censure
individuals, social groups, or collectives engaging in the public denunciation of their activities
 Chilling effect = intimidation judiciare
 Important effects:
o Unequal access to justice, political use of judicial power, weakening of the conditions for
participative democracy, de facto limitation of free expression, potential tensions
between the recognition of the rights of moral and natural persons etc
Origin of the problem and diverse definitions
 SLAPPs seem to have developed out of the political and juridical culture of North America,
particularly the American experience
 This is in line with an increased general tendency to take things to court – as social movements
etc increasingly turned to the courts, so did the private interests they are fighting against
 Going to court can be seen as a means to limit negative publicity by confining the debate to the
less media-tized arena of the courts (contrast to public consultation processes, for example)
 This confines the parties without the resources to go to court to self-censure or mutism
 It is important to recall, however, that strategic recourse to courts is not confined to commercial
interests – NGOs, social movements, etc have all done this too
 Although it can be difficult to define when something is a SLAPP, there are 5 identifiable
tendencies
1. First identified in the context of environmental disputes, SLAPPs are being expanded to
other situations: commercial or industrial practices, employment relations, ancestral
territory protections, food quality, animal protection, etc
2. Originally considered to be for actions for damages in libel, defamation, damage to
reputation, we are beginning to qualify other actions as SLAPPs too – mainly in
commercial law and disloyal competition
3. SLAPPs aren’t aimed only at organized groups or engaged activists but can touch
researchers, journalists, and any person intervening in public space
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4. SLAPPS can be initiated by a diverse set of actors – politicians against their political
adversaries, governmental authorities (especially in states without a clear line between
the executive and judiciary), entrepreneurs, police, pollutant industries, etc
5. The target and instigator occupy opposite spaces on the ideological spectrum – the most
progressive against the most conservative
 SLAPPs are aimed at diverse types of activities: letter writing, public declarations, descriptions of
environmental violations at government agencies, peaceful protests, etc
 There are multiple definitions, each putting the accent on a particular aspect:
o Practice of intimidation, suits without substantial merit, frivolous, brought to obtain
economic advantage
 General definition/characteristics adopted by committee:
o 1) Legal proceeding
o 2) brought against an organization or individuals
o 3) who are engaged in the public space in debates addressing collective issues,
o 4) the point of the proceeding is to limit the freedom of expression of these actors and
to neutralize their actions
o 5) by using the courts to intimidate, impoverish them, and divert their action
o Before calling something a SLAPP however, we must evaluate the general context and
the relations between parties – good faith must be considered
 Going to court (or threatening to go to court) as a means of putting pressure on someone is a
current practice in law – does this threaten the integrity of the judicial system or contribute to
its functionality, given the large number of settlements?
 It’s generally not the biggest enterprises that do SLAPPs anymore because of the negative
publicity – it tends to be smaller to medium sized businesses
Conclusion and Recommendations
Although SLAPPs are not a systematic practice in Quebec, it is necessary to discourage them as a
menace to participatory democracy and a threat to justice
 Objectives:
o Protect the right to free expression and public opinion
o Rapid interruption of SLAPPs in courts of first instance
o Dissuade the initiators of SLAPPs
o Maintain the integrity and aims of the judicial institution
o Access to justice
 Any mechanisms must allow:
o The establishment of a normative foundation to facilitate the evaluation of a proceeding
taken for strategic reasons
o Defining an accelerated procedure that isn’t administered to the detriment of the rights
of the party asserting its point of view
o Reimbursement of the costs of the party whose right of free expression was infringed
o Recognition of the judge’s initiative/ability to intervene more directly to counter
procedures seeking to divert the judicial process
o Attribution of concrete financial and professional resources to victims of SLAPPs to help
them prepare a defence
o Imposition of punitive damages to limit the temptation to make frequent use of SLAPPs
Analysis of three possible legal options:
 Anti-SLAPP legislation:
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An anti-SLAPP law would establish a package of substantive and procedural rules, such
as 1) recognition of the right of public participation, 2) immunity for public interveners,
3) establishment of a specific emergency legal procedure on the model of a summary
judgment, 4) costs provisions, 5) reversing the burden of proof for public interveners
who are SLAPP victims, and 6) imposing punitive damages on SLAPP initiators
o Would have important symbolic weight
o Cons: would modify certain “quasi-constitutional” provisions in the CCP, complexify
legal activities and go against the trend towards procedural economy
Modify the CCP
o Art 46 CCP establishes the power of the court and judges to protect the judicial
institution
o The committee recommends a change to article 75.1 CCP – the article has since been
repealed
o Recommends a change to article 165 to allow judges to dismiss an action even if it is
founded, if it is vexatious, abusive or susceptible to divert the legal process
o These changes would harmonize the CCP with the Code de déontologie which allows a
lawyer to drop a client for persisting in vexatious or futile proceedings
o This is also in line with the Rules of Procedure for the Court of Appeal
Adopt an anti-SLAPP law explicitly stated as such
o Not sure how this is different from above???? - basically make it more explicitly antiSLAPP
o Adopt the same measures as above, but in a bill clearly dedicated to protecting the
courts and encouraging public participation and free expression  political choice to
affirm rights of citizens
J. Brown, ‟Anti-SLAPP legislation reintroduced in Ontario”, Canadian Lawyer (online :
December 8, 2014)
Legislation controversial. Some say it is not needed, too vague, tramples peoples’ right to go to cout
Legislation/Rules
1. CCP, arts. 25, 49, 51-56 [51-defn of abuse; 52=reversal of onus of proof, 53 powers court; 56
DIRECTORS AND OFFICERS personally liable]; 168 [motion to dismiss]
2. ON Courts of Justice Act, s. 140
3. ON Rules of Civil Procedure, RR. 2.1.01 [stay, or dismiss] 21.01(3)(d), 25.11 [strike a pleading]
Parties to an Action – Mar 10, class 17
Hijab case – on what authority did the judge make that ruling to not hear the case?
 Reglement de Cour du Quebec – every one who appears before the court must be appropriately
dressed
o Pg 1142, rule #13
 Case stayed – adjourned to a later date
 What is her recourse? File a complaint at the Quebec Judicial Council
o CJ at Cour du Quebec said judge is sovereign in her courtroom
Permutations of Claims & Pluralities of Parties
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Multiple claims, counterclaims, s (defendants suing each other)
Third party called warranty in Quebec
Dance case – Ottawa didn’t apply under Rule 13.01, applied under rule for necessary parties 
higher bar than voluntary interventions
Forced interventions
o Joinder of necessary parties
o Recourse in warranty/third party claims
Kingsway case
 Explains difference btwn 3rd party and a party
 Duvernay not brought in as guarantee, but as parties to the proceedings
Generally, plaintiff gets to pick which claims included in an action
 Subject to efficiency, harm considerations
Organisation of Hearings
Proper/ Necessary Parties
Saint-Martin v. Fédération des enseignants des écoles juives, [2002] J.Q. no 1054 (CS)
Facts: SM is a huge busybody it appears. She is claiming the nullity of a union vote that decided the
salary scale, and the nullity of the contracts with the school that arose from that pay scale. She is
claiming declaratory relief that a woman named Gertie Shuster is not part of the union and therefore
cannot be the person responsible for insurance for the union. She seeks declaratory relief that she is the
person responsible for insurance for the union. She also seeks an injunction to the union to fix its
minutes from the general assembly. The school has requested that the action against it be disjoined
from the others.
Issue: Should the action against the school be disjoined from the other actions? Holding: Yes.
Reasoning (Mongeon J.C.S.):
 The statement of claim groups together a variety of causes of action that are independent from one
another, and are directed at certain defendants, but in no case all
 Obvious that the three separate actions which the plaintiff has instituted could have been instituted
separately – but question here is since she has instituted them jointly, should the court disjoin
them?
 Article 66 CCP says that causes of action can be joined together into a single action to
accelerate procedure and in the interests of justice
o All the conditions in art. 66 have to be fulfilled for actions to be joined
 Recourses sought are not incompatible or contradictory
 Seeking condemnation of alike nature
 Joinder not expressly prohibited
 Susceptible to same mode of trial
o This article does not allow for the joinder of wholly unrelated claims against different
debtors
 The plaintiff’s actions are not contradictory or incompatible – but they do not tend towards similar
condemnations or trials
o The trials for the different issues will require different witnesses and different evidence
 If the action against the school is not severed, it may be subject to a long trial on subjects which do
not concern it – so its request to have its portion of the proceeding disjoined is granted
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Ratio: If disparate causes of action are instituted by a plaintiff against multiple defendants in the same
statement of claim, the court can grant the request of parties to be disjoined from the main action.
School of Dance (Ottawa) Pre-Professional Programme Inc. v. Crichton Cultural Community
Centre, [2006] O.J. No. 5224 (Ont. SCJ)
Facts: The School of Dance and the Crichton Centre share a historical building and are in dispute
over operational and financial issues. The School of Dance seeks partition and sale of the
building. The City of Ottawa had initially granted the School $250,000 to buy the property to
create a cultural and community centre. It is also a member of a tripartite agreement between
the three parties. In the application, the School originally named Ottawa as a respondent as
well, but then filed a Notice of Discontinuance (that it wouldn’t proceed with the claim against
the city). The City seeks to be added as a defendant on the grounds that it is necessary in order
for the court to completely and effectively adjudicate the issues, given its significant financial
and cultural interests in the Centre.
Issue(s): Is Ottawa a necessary party defendant? (Under Rule 5.03(1) and 5.03(4)) Held: Yes
Reasoning: Whether Ottawa is a necessary party is significantly dependent on whether they are
likely to be affected or prejudiced by a Court order disposing of the rights of the parties in this
proceeding. At the same time, the jurisprudence shows that the application of the necessary
parties/compulsory joinder principle is very narrow – because the plaintiff normally gets the
right to decide who she sues. The reasons for the necessary parties rule are:
 To do a complete job on the controversy in one sitting (viewpoint of the court)
 To protect against the consequences of subsequent litigation reaching inconsistent
results (viewpoint of those already parties)
 To assure that practical out-of-court situation would not be adversely affected by
changes due to a judgment (viewpoint of those not parties but required by rule to be
brought in)
The trial judge will determine the nature and maybe the value of the parties’ interests in the
property; there may be some form of equitable or other legally recognizable interest of the City
beyond the return of the $250,000. Even apart from that, questions of priorities affecting the
$250,000 could arise. Therefore the outcome of the proceeding will likely impact the interests of
the City in a sufficiently material way to require them to be joined as a party.
Ratio: A party is necessary when they are likely to be affected or prejudiced by a Court order
disposing of the rights of the parties to the proceeding – this is applied narrowly though
Beardon v. Lee, [2005] O.J. No. 1834 (Ont. SCJ)
Facts: Dr. Crosby served as an expert witness for Beardon in a medical malpractice trial. During his
testimony he said he had acted as a malpractice consultant for the Canadian Medial Protection
Association in about twenty cases and had been called to give evidence by the CMPA. The TJ relied on
his testimony to award damages to the plaintiff. Later, it came out that Crosby had not been entirely
honest about his qualifications. The defendants (Lee) brought a motion to have the decision set aside
on the basis of fraud. Dr. Crosby seeks to intervene in the motion.
Issue: Can Dr. Crosby intervene in this case, where is not a party?
Holding: Yes
Reasons:
 Rule 13.01 says a person who is not a party to the proceedings can intervene if (a) they have
an interest in the subject matter, (b) they will be adversely affected by a judgment in the
proceedings, OR (c) that there exists a question of fact or law in common with the parties.
o -> only ONE Of these conditions needs to be met. If it is, then the Court has the
discretion to make a ruling, considering whether the intervention will unduly delay or
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prejudice the determination of rights of the parties, and based on what the Court
thinks is just.
In this case, Crosby claims that he has an interest in the subject matter (condition a) since it is
about his testimony. The Court agrees. “Clearly Dr. Crosby’s integrity and credibility are
squarely in issue” (para 9)
Second stage of the test: whether or not to allow the testimony. Must consider:
o Nature of the case; Issues which arise; Likelihood of Crosby being able to make a
useful contribution to the resolution of the motion without causing injustice to the
immediate parties (Peel case)
o Should also consider whether the intervention will unduly delay prejudice the
determination of the rights of the parties to the proceeding.
Intervenor status should only be granted in exceptional circumstances, but these are such
circumstances.
In this case, no unnecessary prejudice will occur, and Crosby has unique perspective to
offer. He is the only one who can explain why he said what he said.
Third Party Claims
Kingsway General Insurance Co. v. Duvernay Plomberie et Chauffage, 2009 QCCA 926
Facts: Kingsway Insurance, the appellant, insured the property of Sanum. Plumbing work was carried out
by Duvernay Plomberie et Chauffage Inc at the premises of Sanum and, the following day, Sanum
suffered significant damage as a result of water leakage, which it assessed at $248,000. Kingsway denied
Sanum’s claim, alleging that Sanum had made false statements regarding the circumstances surrounding
the water damage, and that it had exaggerated the extent of the damage incurred. Dissatisfied, Sanum
instituted proceedings against Kingsway. However, Sanum neglected to sue Duvernay[the plumbers],
even though it alleged in its action against Kingsway that the damage to its property had been caused by
the faulty execution of the repair work performed by Duvernay. Kingsway [the insurers] then tries to
implead the plumbers into the action as a plaintiff alongside themselves- Kingsway files a motion to
institute proceedings in warranty and forced intervention against Duvernay. Duvernay tries to dismiss it
Issue(s): Can an insurer who refuses to pay an indemnity to a claimant forcibly implead the 3rd party who
is potentially responsible for the accident giving rise to the claim under 216 CCP?
Held: Yes, in this case.
Reasoning: Respondent [Duvernay] argues that the appellants [Kinsgway] who have no contractual or
extra-contractual relationship with them, may not invoke subrogation under 2474 C.C.Q. The appellant
has no right of action against them, and thus lacks the legal interest to sue the respondent and
therefore cannot implead the respondent. Nor can a forced intervention be used as a means of adding a
defendant to the main action, since such action is completely unrelated to the respondent’s liability and
concerns only Sanum and the appellants in their respective capacities as the insured and insurers. The
respondent is foreign to this dispute and its participation is not required to ensure the complete
resolution thereof.
The Court of Appeal ruled out the possibility of an action in warranty because no legal relationship
existed between the insurers and Duvernay. However, it agreed to allow Duvernay’s forced intervention
on the basis of Article 216 CCP: Any party to a case may implead a third party whose presence is
necessary to permit a complete solution of the question involved in the action, or against whom he
claims to exercise a recourse in warranty.
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According to the insurers [Kingsway], Duvernay’s presence was necessary to permit a complete solution
of the question, in that it would allow the true cause and circumstances of the loss to be determined.
The insurers also argued that Duvernay’s intervention was required to interrupt prescription of Sanum’s
right to sue Duvernay, which, if prescribed, would prevent the appellant insurers from instituting a
subrogatory action to recover any compensation they might have paid to Sanum.
The Court conceded that the principal action concerned the performance of a contract of insurance,
while the forced intervention pertained to Duvernay’s civil liability, but concluded that, in this specific
case, the word “necessary” should be interpreted broadly. Indeed, the dispute between Sanum and the
appellant insurers turned on the question of Duvernay’s liability. If Sanum could prove that Duvernay
had committed a fault which led to the water damage, Sanum could defend itself against the insurers’
allegation that it had misrepresented the circumstances of the loss.
The Court acknowledged that forced intervention raised questions as to the exact conclusions sought
against Duvernay, since the subrogation provided for in Art 2474 CCQ operates once the insurer has paid
the insured and is thus subrogated to the insured’s rights against the person responsible for the
damage. Therefore, until the insurer makes a payment under the policy, it has in theory no standing to
sue the third party. To circumvent this difficulty, the Court reasoned that the actual occurrence of the
loss creates “a potential” for subrogation. The insurer’s refusal to pay the claim cannot of itself preclude
such potential subrogation. Regardless of whether the insurer eventually compensates the insured of its
own volition or as a result of litigation, Article 2474 applies, since its purpose is to have the third party
that is responsible for the loss bear the cost of compensation(Potential or future subrogation)- thus
creating standing to sue. This solution eliminates the risk that the insurer’s subrogatory action against
the person responsible for the loss may be prescribed.
The Court is concerned with avoiding a multiplicity of proceedings and ensuring the effectiveness of the
administration of justice. Impleading aims to reduce costs and avoid the useless repetition of actions .
The goal of forced 3rd party intervention is to permit the complete resolution of the issue in a single
proceeding. The idea behind subrogation in the context of insurance, as expressed in 2474 C.C.Q is to
ensure that in the end the person who caused the damage, i.e. the person legally liable for the damage,
is ultimately held accountable for it
Ratio: The goal of forced 3rd party intervention is to permit the complete resolution of the issue in a
single proceeding. The idea behind subrogation in the context of insurance is to ensure that in the end
the person who caused the damage is ultimately held accountable for it. Article 216 CCP should be
interpreted broadly.
Wilson Cartage Ltd. v. Carlisle, 2011 ONSC 1154
Facts: Motion by the defendants (Mr & Mrs Carlisle) to add a third party to a construction lien claim. In
April 2009, the defendants contracted with the plaintiff (Wilson) to design, supply the materials and
install a gravity fed septic system. The Leeds, Grenville and Lanark District Health Unit was the authority
responsible for the enforcement of the provisions of the Building Code Act and the Ontario Building
Code relating to sewage systems in the township. The health unit inspected the property and approved
the defendants' application to install the septic system at the defendants' property. Once the septic
system was completed, the health unit completed a final, pre-backfilled inspection on the septic system,
and approved it. After receiving an as-constructed plan, the health unit issued a sewage system
completion certificate (even though construction was not actually done). Sometime after the
completion certificate was issued, the defendants became dissatisfied with the work performed by the
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plaintiff and refused to permit the plaintiff to complete the mantle area. The plaintiff registered a
construction lien upon the defendants' property, and then commenced action for outstanding amounts.
A judicial pre-trial conference was held in July 2010. The action was scheduled for trial in November
2010, but was not reached and was rescheduled for April 2011. In August 2010, the defendants raised
the possibility of adding the health unit as a third party, and they attempted to serve the health unit
with a third party claim in September 2010.
Issue(s): (1) Does Section 56 of the Construction Lien Act (CLA) apply as it relates to a third party? (2) Is
the purpose of the Defendants' Third Party claim for contribution or indemnity from the Third Party in
respect of the main claim? (3) Would the third party claim cause undue prejudice? (4) Would adding a
third party delay or complicate the resolution of the lien action?
Held: (1) No. (2) No. (3) Yes. (4) Yes. Motion dismissed. The proposed third party claim would unduly
delay or complicate resolution of the lien action.
Legal Reasoning – Johnston, J:
 (1) The Defendants posted security for the full amount of the Plaintiff's claim for lien and the
Plaintiff thereafter discharged the lien on the Defendants' property. Section 44(6) of the CLA
provides that where security is posted and an order is obtained vacating the lien, it does not
transform the action from a lien claim to some other type of claim.
 Section 67(3) of the CLA provides that the Rules of Civil Procedure apply to proceedings under
the Act, except where inconsistent with the Act. I find that Rule 29.01 is inconsistent with
Section 56 of the CLA and, therefore, does not apply.
 (2) The court must be satisfied that the purpose of the Defendants' Third Party claim is to seek
contribution and indemnity. The Defendants allege that they are entitled to compensation" as
against the Health Unit and that this arises from their current expenses of operating a
temporary holding tank, which "were unnecessary had the Health Unit not issued a Certificate of
Completion without appropriate inspection in May 2009". The true nature of the proposed Third
Party claim is not for contribution and indemnity; rather it is a separate claim for damages by
way of tort for alleged negligence by the Health Unit.
 (3) The Defendants allege they would be unduly prejudiced in the conduct of their defense
without joining the Health Unit as a party, because the Health Unit has information and
evidence which has not been disclosed to the Defendants concerning their dealings with the
Plaintiff. This is insufficient reason to grant leave to add the Third Party. The Defendants have
other options of obtaining documentation in the possession of the Health Unit, including
subpoenaing members of the Health Unit to trial. Adding the Third Party would cause prejudice
to the Plaintiff, to the extent it transforms the action from an action dealing in contract to an
action dealing in both contract and tort.
 (4) The claim by the Plaintiff against the Defendants is brought in contract. On the other hand,
the Defendants' cause of action as against the Health Unit is grounded in negligence. The
allegations and issues of negligence as against the Health Unit would complicate resolution of
the Plaintiff's lien claim. The Defendants are not foreclosed from a remedy as against the Health
Unit. The Defendants have the option of bringing a separate action.
Ratio: K and ECO claims should be kept separate so as not to complicate judicial proceedings
Legislation/ Principles/Rules
1. ALI/UNIDROIT Principles 12-13
2. CCP, arts. 143 (joining actions), 147 (plaintiff has to inform all parties), 172 (cross-application), 184190 (intervention of 3rd parties), 210-211 (combining unrelated claims)
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3. ON Rules of Civil Procedure, RR. 5 (joinder and third parties), 13 (intervenors), 27 (counterclaim), 28
(crossclaim), 29.01-29.02 (third party claim)
Protective Measures (I): Interlocutory Injunctions, Freezing
Orders, Protection of Evidence, Mar 12 & 16
Class notes:
Pending Litigation
 Protect or preserve substantive rights pending the judgment on the merits
 Protect ability to execute the ultimate judgment
Procedural Translations
 Interlocutory injunction
 Mareva Injunction
 Anton Piller Order
Some common features
 They all seek similar objectives
o All making the final judgment not moot
o All well and good for plaintiff, but for defendant: why should their rights be constrained
without a judgment against them. Why have pre-judgment
o One answer: it’s just a temporary measure
 Two types of temporary measures: interim/provisional measures (short); others
that are longer, even years
o Another possibility: if plaintiff loses and is abusive, defendant may be able to sue them
in return
o Want to be sure that injunction is justified – need some kind of proof. But we don’t
want this to turn into a trial within a trial
 Don’t want any of them to turn into a pre-trial within a trial
o What is the standard of proof we want?
 Level of proof is usually only an appearance of right
o Pretty low threshold (for interlocutory injunction)
o Should they all have the same threshold? Anton piller order and mareva injunctions take
away more rights, should they have a higher threshold?
 Extra risk involved when proceeding is ex parte
o If you alert someone about the order you request, and there is a lag of time between
when you make the request and the request is heard, there is time for you to make
evidence disappear.
o Plaintiffs say these motions should be without notice. Anton piller orders are always
taken ex parte. How to compensate for that? (1) up the burden of proof, (2) give
defendant time to quash it
o Usually when we ask for these provisional orders, there is a measure of urgency
involved.
Interlocutory Injunction: RJR-MacDonald
 Code defines an injunction for us: 509
 Injunctive relief is a relief that belongs to the superior court. To s 96, federally-appointed judge
courts. Courts of inherent jurisdiction
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Art 511 gives us some idea of when it will be granted
o “if it appears to have a right to it”
o “and it is judged necessary to prevent serious or irreparable prejudice to the applicant”
The interlocutory inj has been the subject of a lot of jurisprudence
Seems odd that RJR is the leading case on the test for injunctions across the country – in QC and
everywhere else
o Why: it’s a charter case, public law
o Not even really asking for an injunction, they were asking for a stay – so that they didn’t
have to follow the law
Para 41: “generally the same principles should be applied by the court, whether the remedy
sought is an injunction or a stay”
Traditional view = three prong test
(1) There is a serious question to be tried (not an assessment on the merits and not even a
prima facie case)
o Wording is slightly different in CCP. Art 511, the words are “appears to have a right”
Interlocutory injunction usually happens almost right after the initial demand. Or sometimes
even before the initial demand is requested (eg for anton piller case)
o Haven’t done discovery yet. Don’t have a lot of evidence to go on
o It’s taking place in “motions court” – like the one we saw. Things happen fast in a
motions court. SCC says: motions court doesn’t have the time to look at this in depth!
o So really low threshold : as long as it is not vexatious or frivolous
(2) petitioner will suffer irreparable harm if injunction is refused
o 511 CCP: “to prevent serious or irreparable prejudice”
o How do we assess this?
o SCC says: it’s not the amount of the harm, it’s the nature of the harm.
o Usually money won’t count, but in this case, RJR-MacDonald said: in a Charter case,
money is usually not awarded, so should be ok.
o In a regular case, money won’t be an irreparable harm
(3) balance of convenience between parties is weighed
o i.e. “who will suffer more”
o at judge’s discretion
o why? Injunction comes from equity
 Permanent injunction, which is really an order of specific performance. Different
situation than temporary. But both came from equity
 Equitable remedies are supposed to be viewed as an exceptional remedy
 Book VI: “Special” Procedural Routes
 Injunction is an eg of a procedure in QC that does NOT come from
France
o RJR – unusual because it weighs the inconvenience by taking into account the public
health interest
So, that’s the law. Do we like this?
Questioning the traditional test
 JP Groleau, “Interlocutory Injunctions: Revisiting the Three-Pronged Test” (2008) 53 McGill LJ
269
 Author questions low-threshold test. Says the threshold should only be so low when the facts
are really complex
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Author says injunctions are rarely used as protective measure, but instead as a negotiating tactic
Use the terms “petitioner” and “respondent” when talking about motions, not plaintiff and
defendant
Interlocutory Injunction
RJR MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (excerpt)
Facts: The government had introduced legislation requiring tobacco companies to put health
warnings on their packaging. The tobacco companies were challenging the constitutionality of the
regulations. The TJ found it unconstitutional, the CA found it constitutional. The SCC agreed to hear
the case. The tobacco companies were asking for an interlocutory motion saying they didn’t have to
submit to the regulation until after the SCC decided the case.
Issue: Can the Court issue an interlocutory motion in this case? Does the case meet the test for such a
motion?
Holding: Yes, the court has the power to do it, but no, the case does not meet the test. Application for
interlocutory relief denied.
Reasons:
Sopinka & Cory JJ
 The court has the power to grant a stay of execution, or any other order “that preserves
matters between the parties in a state that will prevent prejudice as far as possible
pending resolution by the Court of the controversy” (para 30). This power comes from s
65.1 of the Supreme Court Act and r 27 of the Rules of the Supreme Court of Canada
 The Court has this power even if the relief is for “suspension” rather than “exemption”
from regulation
 Even if the Court didn’t have jurisdiction under s 65.1, the Court would find that it had
jurisdiction under s 24(1) of the Charter (they are super determined here). “A Charter
remedy should not be defeated due to a deficiency in the ancillary procedural powers of
the Court to preserve the rights of the parties pending a final resolution of constitutional
rights.” (para 34)
Grounds for Stay of Proceedings
 The applicants must meet the test for interlocutory relief set out in Manitoba (AG) v
Metropolitan Stores.
o (1) is there a serious question to be tried
o (2) will the applicant suffer irreparable harm if the application is refused
o (3) which of the parties will suffer greater harm from the granting or refusal of the
remedy pending a decision on the merits
 “On the courts must be sensitive to and cautious of making rulings which deprive legislation
enacted by elected officials of its effect.” Para 38
 “On the other hand, the Charter charges the courts with the responsibility of safeguarding
fundamental rights. For the courts to insist rigidly that all legislation be enforced to the letter
until the moment that it is struck down as unconstitutional might in some instances be to
condone the most blatant violation of Charter rights. Such a practice would undermine the
spirit and purpose of the Charter and might encourage a government to prolong unduly final
resolution of the dispute.” Para 39
Is there a serious question
 The standard used to be “a strong prima facie case” but now it is just that "the claim is not
frivolous or vexatious; in other words, that there is a serious question to be tried" (para 44).
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Canada says that because a decision has been rendered at trial, the applicants can no longer
ask for interim relief. SCC says this might apply in some instances, but NOT in Charter
litigation. The interests the Charter protects are too important to allow them to be trampled
while the court is still reviewing a claim.
 Typically, Courts need not spend a lot of time on the merits of the case, and can move on to
the next two steps of the test. Two exceptions to this: (1) when the interlocutory motion will
in effect amount to a final determination of the action, (2) when the question of
constitutionality is a question of law alone
 In this case, there is a serious question to be tried.
Irreparable Harm
 “irreparable” refers to the nature of the harm and not to its magnitude. Egs: one party being
put out of business, loss of natural resources
 In this case, the financial damage that would be suffered by the applicant counts as
irreparable harm.
The Balance of Inconvenience and Public Interest Considerations
 Must consider all relevant factors. In Constitutional litigation, public interest is an important
factor to consider. The govt doesn’t have a monopoly on “public interest”. Public interest
includes the concerns of society generally and the particular interests of identifiable groups.
 In the case of a public authority, if they can show that they are charged with the duty of
protecting the public interest, and they can show that the impugned action was undertaken
in the interest of the public interest, the court can assume irreparable harm will result from
the restraint of that action (para 71)
o Don’t need to decide that actual harm will occur. “To do so would in effect require
judicial inquiry into whether the government is governing well,”
 In this case, while the companies would have to spend a lot of money re-doing their
packaging, they are huge successful companies who can deal with the expense.
 The government clearly passed the legislation with the intent of protecting public health.
“When the government declares that it is passing legislation in order to protect and promote
public health and it is shown that the restraints which it seeks to place upon an industry are
of the same nature as those which in the past have had positive public benefits, it is not for a
court on an interlocutory motion to assess the actual benefits which will result from the
specific terms of the legislation.” (para 92)
 So the respondents (government) will suffer the greatest harm from the interlocutory motion
if it is granted. Therefore, it is not granted.
Note: para 76-81 provide a nice summary of the test (p 16)
Ratio: Public interest considerations will outweigh most other considerations. When the government
has done something in the public interest, it will be hard to overcome that factor.
Freezing Orders
Class notes:
Freezing Orders
 Mareva injunction: Orders the freezing of assets of the defendant
 Named in honour of 1975 English CA Denning LJ case. A shipping case.
 First Cdn mareva case was a family law case in 1979. But people really started talking about
Mareva injunctions in 1985 (which is pretty fast for a case to cross the ocean). In 1985 – SCC
Etna decision = leading case
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For jurisdictions which don’t have a Mareva injunction in their rules (which is basically all
jurisdictions in Canada. Many have something that “looks like” a Mareva injunction, but isn’t
quite. Closest is QC which has a seizure injunction. Mareva is an action over a person, not over
the assets.
So, given that it is not in the rules, how does it come into law?
o Claim it is part of inherent jurisdiction
Important in cases of fraud, or more generally, when there is a fear that the defendant will
dissipate assets or transfer them out of the jurisdiction making enforceability of final judgment
difficult
Mareva Injunction
 The injunction does not encompass the dispossession of the assets of the defendant but merely
an order making it impossible for the owner of the assets to part with them or transfer them
 Successful mareva injunction is served on the financial institutions holding the money and is an
order on the institution not to transfer the money
 Impt: NOT a dispossession order
 The Mareva is said to be more worrisome than the interlocutory injunction. WHY?
o You freeze my assets, I can’t run my business
o You freeze my assets, I can’t pay my child support
o Asked for ex parte
o Prevents someone from exercising ownership rights over what they have. You might say
that it is no different from interlocutory injunction.
o Prejudgment execution order
o Litigious blackmail
 But of course sometimes they are necessary, so the real question is: what should the
appropriate test be?
Tracy v Instaloans:
 She was alleging criminal rates
 Just because you are a criminal doesn’t mean you are going to take off with your money,
necessarily
 Why was the judge worried here? They had created shell companies and sold, and had a bunch
of cash.
 Plaintiff said, “if I win this CA, my judgment will go unsatisfied. And there was proof from
Ontario that company might be trying to make itself “judgment proof”
 What do we take out of Tracy and Instaloans case?
o While generally speaking the mareva injunction follows the same three-step test as
ordinary interlocutory injunctions
 Btw the 3-pronged test is not a “step-one, step-two, step-three test, it is a
global test
o Jukier says the BCCA is upping the ante a bit: instead of just “not vexatious or frivolous”
you need “a strong prima facie case” or a “good, arguable case” but “not a case that is
bound to succed”
 That is a lot higher than not vexatious or frivolous
o Judge slashes the amount the injunction is requested for
o Also some talk about whether the defendant can put up some money in case Mareva is
granted wrongly
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Seizure before judgment in QC
 Why does QC need a Mareva in junction when they already have this? What is different about
them?
 New codal articles: 516-ff
 Pre-judgment garnishment order in BC
 But you might want to take a mareva injunction in QC if the assets are not in the jurisdiction, bc
the seizure before judgment only works when assets are in the juris
 Reason for Opera On case and Vancouver Sewage: (1) to show us rules in other jurisdictions
 Vancouver sewerage: main reason it failed is that debt wasn’t liquidated
 In some juris, these types of freezing orders, can even be obtained where the plaintiff doesn’t
have to prove that there is actually a risk. (do have to show it in QC)
 In both these cases, the respondant then applied to quash
Tracy v. Instaloans Financial Solutions Centres (B.C.) Ltd., 2007 BCCA 481
Facts: T is the representative plaintiff for a class action claiming that Instaloans charged a criminal
rate of interest on the payday loans it was giving out – she is seeking a disgorgement of all excess fees
received by Instaloans. She applied for (and received at trial) a worldwide Mareva injunction to freeze
not only the company’s assets, but also the personal assets of its individual corporate officers; she
also applied for an impound order requiring the corporate defendants to place all the funds from sale
of the businesses in a lawyer’s trust account, and an order requiring all the defendants to file
affidavits listing their assets.
Issue(s): Did the trial judge err in granting a Mareva injunction?
Held: No, but it scope should be reduced.
Reasoning (Saunders J.A.):
 No court should permit a defendant to take action designed to ensure that subsequent orders
of the court are rendered less effective; cannot allow them to make themselves judgment-proof
 The term “Mareva injunction” refers to any order impounding assets or freezing assets before
judgment
o Has developed to preserve the efficacy of judgments in this day of instant communication
and paperless cross-border transfers
 The Mareva injunction is an extreme and extraordinary measure: is an exception to the rule that
security for a debt will not be ordered before judgment
o The Mareva injunction therefore has certain attendant dangers
 Will tie up a litigant’s assets indefinitely pending trial of an action which may
not succeed, or which may result in an award for far less than the caged assets
 Could allow a plaintiff to force a settlement by freezing their opponent’s assets
o Judges need to be very cautious and prudent in the issue of these orders
 In BC, the traditional test for the granting of an interlocutory injunction is:
o Does the plaintiff have a strong prima facie case or a good arguable case?
o Does the balance of convenience favour the granting of the injunction?
 Examine the irreparable harm flowing to the plaintiff under this branch
o The judge must not allow himself to become a prisoner of this formula: fundamental
question in each case is whether granting the injunction is just and equitable in all the
circumstances of the case
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The extremity of the Mareva injunction requires another step to be surpassed in order for an
applicant to obtain one: they need to show that there is a real risk of disposal or dissipation of
assets so as to render nugatory any judgment
o The applicant must also show that the extent of the amount sought to be frozen bears
some relation to their potential damage award
 In this case, there is obviously a serious question to be tried because it has been the subject of
litigation in other jurisdictions (Ontario, Alberta)
 The balance of convenience was decided by the trial judge to favour the granting of the injunction
o This is a discretionary decision, and is owed deference unless a serious error was made
o The Appeals judge doesn’t seem entirely convinced that this case poses a serious risk for
dissipation of assets (the evidence was weak), so does not see fit to correct the trial judge
on the injunction against the companies – but overturns the injunction against the
corporate officers
o But the plaintiff has sought to freeze $39 million – this is way more than her damage
award will likely be  should go back to trial court to determine the appropriate amount
to freeze
 Must consider in this case the fact that it is a class action; the plaintiff already has numerous
advantages over the defendant  plaintiff is not exposed to costs; she has not had to submit to
an undertaking in exchange for the injunction
 Also must consider the issue of time – a Mareva injunction should not be indefinite. The
plaintiff must promise to expedite the trial and a time period for the injunction should be
specified.
Ratio: Mareva injunctions are extraordinary measures that should not be lightly granted
*this was mostly taken from a summary, because my version was muddled and confusing! But this is
totes legit
Opera on Original Site c. China Performing Art Agency, 2005 Q.J. 8174 (CS)
Facts: OOS and CPAA have a contract undergoing arbitration in Singapore and although it’s ongoing,
OOS has been awarded costs. OOS asks Quebec courts to seize before judgment several million
dollars that Cirque du Soleil (the third party seized) owes CPAA, claiming otherwise there’s fear OOS
won’t be able to collect a potential arbitral judgment in their favour. Article 733 CCP allows seizure
before judgment when there is reason to fear recovery of the debt would otherwise be put in
jeopardy. 738 CCP allows the defendant, within 5 days, to ask that the seizure be quashed because of
insufficiency of evidence.
Issue(s): 1) Should CPAA be allowed more than 5 days (738 CCP) to demand the seizure be quashed?
2) Has OOS proved that a seizure before judgment is necessary?
Held: 1) Yes 2) No
Reasoning:
1. 5 days
 It is well established that the 5 day period is not a strict limit – 9 CCP allows a judge to extend
any time limit if the conditions are just. There must be serious reasons.
 CPAA is a foreign company unfamiliar with Quebec procedural rules. They had to find Quebec
lawyers and have had difficulty communicating with them because of the distance and
language.
2. Seizure before judgment
 Seizure before judgment must be justified by precise facts and particulars demonstrating that
the defendant has the intent to hide or dispose of goods in order to avoid the recovery of a
debt
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There must be an objective fear
It may be that it is very difficult to enforce arbitral judgments in China but that is a general
statement not based on personal experience.
 The simple fear that a judgment may not be enforceable is not sufficient to justify a seizure
 The attitude of Chinese courts towards arbitral decisions is also not a new one – this risk
existed when OOS entered the contract and OOS cannot now claim fear in the sense of 733
when they knew what they were getting into
 The allegation that CPAA is colluding with a German creditor is too vague to demonstrate
disloyal manoeuvres or persistent conduct giving rise to fear
 Refusing to pay the costs ordered ($90,000) arose in a very precise context and doesn’t
amount to anything under 733
 The financial situation of the plaintiff has not relevance in this inquiry
 The plaintiff’s allegations were insufficient
Ratio: 1) Seizure before judgment must be justified by precise facts and particulars demonstrating
that the defendant has the intent to hide or dispose of goods in order to avoid the recovery of a debt
2) The simple fear that a judgment may not be enforceable is not sufficient to justify a seizure
Greater Vancouver Sewerage and Drainage District v. Canadian National Railway Co., 2012
BCSC 1929
Facts: Greater Vancouver Sewerage and Drainage District [“District”] was a statutory body
responsible for sewerage and drainage treatment within the Greater Vancouver region. A contractual
agreement between District and CN permitted District to encroach on land that was indirectly owned
by CN for the purpose of constructing and maintaining sewer pipelines [The Encroachment
Agreement]. Their contract stated that the rent amount was subject to review and adjustment every two
years. District constructed and maintained a sewer line under and along the land since 1960. District
paid rent pursuant to the agreements until 2009. CN claimed it was owed $1.7 million in rent. District
claimed that CN demanded unjust increases in the annual rent and that the annual rent renewal
provisions in the agreements were void for uncertainty. CN counterclaimed for the outstanding rent
and issued garnishing orders [an Order to have that money paid into the court registry so it is
available to be paid to you if you win the lawsuit] on the basis that its claim was for liquidated
damages of $1.7 million. Two payments were made by District into court pursuant to the garnishing
orders and they totaled $97,940.
Issue(s): Is CN's claim for liquidated damages? Was the garnishing order necessary?
Held: No. No- the court set aside the order and released funds back to District
Reasoning:
The Court Order Enforcement Act permits a plaintiff to obtain a pre-judgment garnishing order. The
test when considering a release of all or part of the garnishment is: whether a release is "just in all of
the circumstances".
Whether a claim is liquidated will depend on: (Hastings v. O'Neill Hotels)
1. Is it ascertainable by calculation or by referring to a fixed scale of charges?
2. Can the calculation be made by reference to the agreement between the parties itself or
implied by the agreement?
3. Was the price or method of calculation of the price agreed upon by the parties?
4. Has the defendant obliged him/herself to pay a specific sum of money?
5. Was a reasonable estimated cost established by the parties?
Relying on the District’s prior and ongoing payment of rents under the Encroachment Agreements, CN
pleads that District is estopped from claiming that the Encroachment Agreements are not subject to
rental adjustment in accordance with the fair market rental value. CN pleads that the District
137
unconditionally accepted and paid the rental increases in 2008-2009. The rents claimed for subsequent
years were not increased and CN submits that they are, therefore liquidated amounts.
However, the pleadings demonstrate that CN's counterclaim was not the type of simple debt claim for
which a garnishing order before judgment could be appropriate. It was a complex claim, which could
only be quantified if CN was successful. CN's claim [for outstanding rent] is not ascertainable by
calculation or reference to a fixed scale of charges because the Encroachment Agreements do not
set the annual rent to be paid beyond the initial two-year period. The fact that the District paid the
increased rent in 2008 and 2009 does not establish those sums as liquidated because District says they
paid under protest. Therefore CN's counterclaim is not for a liquidated damage amount.
The purpose of a garnishing order is to provide security for a claim when an action is started- it is an
extraordinary remedy. The garnishing orders were not necessary here because there was no concern
that District would dispose of the funds. If CN obtained judgment District would be able to satisfy it.
Ratio: The test when considering a release of all or part of the garnishment is whether a release is
"just in all of the circumstances" (see 5 factors above). A prejudgment garnishing order is an
extraordinary remedy and serves to prevent the defendant from disposing of, absconding with,
or in any other manner disavowing themselves of funds available to satisfy the debt.
Class notes:
ANTON PILLER ORDERS - Story from a case – narrative of what happened when a Bailiff showed up
What is it?
 Court order directing the defendant to permit representatives of the plaintiff to enter the
defendant’s premises for the purpose of removing certain documents and things (including
information stored in electronic format)
 “se laisser saisir”
 People say it is like seizure, but it is not – it is an order that you open the door and let the seizing
officer in
Where does it come from?
 Originates in the English CA decision of Anton Piller KG v Manufacturing Processes Ltd (1976)
(Lord Denning), an IP case dealing with potential infringement of copyright designs
 Originally people thought this was particularly apt for this kind of order, because if you were
copying designs it would be easy to through away the evidence you were copying and just say
you were making it up yourself
 Today: no subject matter restriction for Anton Piller order
 Today, AP orders are regularly obtained in the context of civil action, employment dismissals
and eve matrimonial cases
What is basis of such order?
 The ability to grant an AP order was originally based on the inherent jurisdiction of the court
 This is the case in QC as well (Raymond Chabot case, ,2002 CA)
o Even though it is not in the code, QC courts have the same inherent jurisdiction and can
also have AP orders
 In QC, usually based on : 2, 20, 46, 734
o New code: 25, 49(2), 516
o Art 20, 49: basically codification of inherent jurisdiction
o 734: seizure before judgment
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ON Rule 45.01 also looks a lot like an AP order
o “interim preservation of property”
Purpose and Effect of an AP order
 Purpose is to preserve relevant evidence that might otherwise be destroyed or concealed by the
defendant
o The evidence that is seized is held by some officer of the court and is not touched, but is
there to be preserved and looked at by both parties
 Effect is to authorize “a private party to insist on entrance to the premises of its opponent to
conduct a surprise search, the purpose of which his seizure and preserve evidence to further its
claim in a pirate dispute” (Celanese)
 Wording of a 2007 AP: “Authorize the bailiff charged with the execution of the writ to remove
the computer equipment and accessories including hard drives, external hard drives, servers,
memory keys, diskettes and CDs belonging to defendant to be moved to the offices of the
bailiff”
o AP order really designed for digital evidence
 Often computer expert accompanies those executing the order
Dangers
 Ex parte
o You don’t even know this motion is being brought
 We may get documents that ought not to be seized
o Esp privileged documents (Celanese case)
 Often before action is even served
o Person may not even know they are being sued
 Done by surprise
One of the things we will see on Thursday: requirement in many jurisdictions in Canada (not QC) is that
the party must give a list of documents to the other party of all the docs that are relevant to the case.
Here, it’s just sweeping. They take the kid’s homework for Pete’s sake.
Those that are critical of AP order say that the bedrock of our society is that we only have forcible entry
and search and seizure in the criminal context. Critics say this is an extension of criminal search and
seizures to civil arena.
 There is an answer to that. =there IS a difference. Nobody is going to force entry. You HAVE to
let the person in.
 Difference=no forcible entry but contempt if you don’t comply = “distinction without a
meaningful difference” (Binnie J in Celanese)
Where is seizure done?
 In defendant’s business premises
 In D’s home
 In D’s car
 Very expansive as to where it can relate to
o Recent case: it can even relate to property held by third party
Result of Dangers
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Remedy is seen “at the extremity of court’s powers” (Anton Piller KG)
Termed a draconian order (Celanese)
Exceptional remedy
“a nuclear weapon” of the private law!
However, despite these restrictive characterizations, AP orders are increasing, largely due to
their usefulness re electronic evidence where documents are easily deleted, moved or
destroyed (Celanese)
Reaction to dangers by courts: safeguards
 1. Creation of a 4-step test in Celanese: strong prima facie case, damage to P that is very serious,
confidence D has evidence, serious likelihood D will destroy the evidence
o Which part of the test is very hard to prove?
 Prima facie case is higher standard than “not frivolous”
 Damage to P will be serious: not too bad
 Convincing evidence D has documents or things: how do you prove that?
 Hardest part of the test: last one. Must be real possibility D may destroy such
material before discovery process can do its work. This is a tricky part of the
whole test. Most people agree that it’s almost impossible to prove.
 Quote from another case: “it is difficult to prove with tangible evidence
that an infringer has a history of destroying evidence or will dispose of
important evidence. Applications have therefore focused on the
dishonest nature of the D and on the ease with which evidence can be
destroyed”
 This would never pass muster in the criminal context. But what about
civil context?
 BC v Malik, 2011 SCC 18. Malik charged with Air India bombings. BC paid
for Malik’s defence. Cost $5.2 million. BC later said they shouldn’t have
had to pay, they were defrauded. BC Gov asks for both a Mareva
injunction and an AP order. Malik moves to quash. Quash goes up to
SCC. SCC maintains Ap order. TJ relies on the fraud in the Robotham
order. CA says you can’t do that. SCC says, yes you can. Similar fact
evidence ok.
o How do courts deal with that?
 Appointment of supervising solicitor (acts as officer of the court) who is independent of the
plaintiff and who is to be present at the search to ensure its integrity.
 3. Carefully drafted orders to specify what may be seized and when seizure may take place
o There is a BC judge who has created a model AP order, and BCSC judges tend to use that
 4. Allowance of some time for defendant to obtain legal counsel
o Not provided for, but some people have said it should be worked into Ap system
 5. Requiring plaintiff to provide an undertaking to pay damages in event order turs out to be
unwarranted or wrongfully executed
o Celanese talks about this
Types of Abuses
 Improper order in the first place
o Judge should to have granted. Didn’t satisfy 4 criteria
 Proper order but seizure of confidential information (subject to solicitor-client privilege)
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o Most often the thing that goes wrong
Proper order but abusive execution
Remedies for Defendant
 Apply to the court to annul (or vary) the order
o Original order ex parte. Now that they hear your side, they may quash it
o Bc they believe you will not destroy evidence
o Or that the evidence on which AP order was granted was not proper
o Usually that ends the matter, but can also always appeal
o Motions for AP. Eg motion filed in Court Feb 8, heard and granted Feb 9, executed Feb
12
 Have unlawfully seized material returned
 Disqualify the lawyers involved (Celanese)
o Often assume lawyers follow the ethical standard – no real safeguards, just trust lawyer
ethics
 Award of damages against plaintiff
 Award of full-indemnity costs (covering extra-judicial legal fees)
Comment: HUGE violation of privacy!
 Can evidence that is not relevant but is evidence of criminal activity be used?
o Not sure.
Protection of Evidence
Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36
Facts: This appeal presents a clash between two competing values -- solicitor-client privilege and the
right to select the counsel of one's choice.
Industrial espionage! Celanese retained Murray Demolition Corp. to demolish a production plant in
Edmonton. Celanese discovered in 2003 that other parties, among them Canadian Bearings, had been
given access to the demolition site and engaged in an attempt to copy proprietary processes and
equipment under the guise of demolition. They were ordered off the property by Celanese. Celanese
initiated proceedings against Canadian Bearings for allegedly stealing technology and making
unauthorised use of it in the construction of a production facility in Iran. On June 19, 2003, the
motions judge granted Celanese’s ex parte application for an Anton Piller order against Canadian
Bearings and others. The order did not deal with how privileged documents were to be handled.
During the execution of the Anton Piller order against Canadian Bearings by Cassels Brock (CB) on
June 20 and 21, 2003, privileged electronic documents were downloaded onto a portable hard drive
and burned onto CD-ROMS. These were then given to an independent accounting firm, BDO, in a
sealed envelope. Contrary to the express provision in the Anton Piller order, no complete list of the
seized records was made prior to their removal from the searched premises. On June 23, 2003,
lawyers from CB and another law firm, Karowitz (K), directed BDO to open the sealed envelope and
make copies of the contents of the hard drive and CD-ROMs available to them. The solicitors for
Canadian Bearings, BLG, were not informed that this was taking place. Lawyers from CB and K then
partially reviewed the solicitor-client privileged electronic documents obtained from the hard drive
and CD-ROMs. When BLG discovered that the sealed envelope had been opened, some heated
correspondence ensued. BLG sent a letter to CB & K on July 11 to request the immediate return of
some 82 privileged documents and identification of who reviewed them. Rather than returning the
privileged electronic material as requested, CB & K advised BLG that the documents had been deleted
from their systems.
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Judicial History: Canadian Bearings brought a motion to disqualify CB & K from continuing to act for
Celanese, which was dismissed by the motions judge. Canadian Bearings appealed to the Divisional
Court, which allowed the appeal and ordered that CB & K be removed. Celanese, CB & K appealed to
the Ontario Court of Appeal, which allowed the appeal, finding that neither of the courts below had
applied the correct test for removal.
Issue(s): What is the correct test for the removal of counsel? (2) Which party should bear the onus of
showing, or rebutting, the presumption of prejudice from a violation of privilege that necessitates the
removal of counsel?
Held: (1) The approach used in McDonald Estate (2) The burden is best borne by the parties that
received the confidential information, as they would be in a better position to do so. Appeal allowed
Legal Reasoning- Binnie J:
- Anton Piller Order: a court order that provides the right to search premises and seize evidence
without prior warning. This prevents destruction of relevant evidence. The only justification
for such an extraordinary remedy is that the plaintiff has a strong prima facie case and can
demonstrate that on the facts, absent such an order, there is a real possibility relevant
evidence will be destroyed or otherwise made to disappear. The usefulness of the Anton Piller
Order is especially important in the modern era of heavy dependence on computer
technology, where documents are easily deleted, moved or destroyed.
Requirements for an Anton Piller Order
- 4 essential conditions exist: (1) The plaintiff must demonstrate a strong prima facie case. (2)
The damage to the plaintiff of the defendant's alleged misconduct, potential or actual, must
be very serious. (3) There must be convincing evidence that the defendant has in its
possession incriminating documents or things. (4) It must be shown that there is a real
possibility that the defendant may destroy such material before the discovery process can
do its work.
The Governing Authority for Removal of Counsel for Possession of Confidential Information is the
MacDonald Estate Case
- In this case the court held that once the opposing firm of solicitors is shown to have received
confidential information attributable to a solicitor and client relationship relevant to the
matter at hand, the court will infer that lawyers who work together share confidences and
that this will result in a risk that such confidences will be used to the prejudice of the client,
unless the receiving solicitors can show that the public represented by the reasonably
informed person would be satisfied that no use of confidential information would occur. Only
where there is clear and convincing evidence to the contrary will the presumption be
rebutted.
- There is no doubt Canadian Bearings has discharged this onus. The motions judge noted the
admission by Celanese that some privileged material found its way into the possession of
both the CB & K firms
- If the privileged confidences were crucial to the defense of the claim, removal of the
searching solicitors would be called for. On this record, we have no way of knowing. The
gravamen of the problem here is the possession by opposing solicitors of relevant and
confidential information attributable to a solicitor-client relationship to which they have no
claim of right whatsoever.
The Court of Appeal Erred in Placing the Onus of Proof on CB
- Lawyers who undertake a search under the authority of an Anton Piller order and thereby
take possession of relevant confidential information attributable to a solicitor-client
relationship, bear the onus of showing there is no real risk such confidences will be used to
the prejudice of the defendant.
142
Placing the onus on Celanese accords with the usual practice that the party best equipped to
discharge a burden is generally required to do so. Celanese's lawyers know what they looked
at. Canadian Bearings' lawyers do not. The onus was not met by the respondents
The Appropriate Remedy
- The task is to determine whether the integrity of the justice system, viewed objectively,
requires removal of counsel in order to address the violation of privilege, or whether a less
drastic remedy would be effective. The right of the plaintiff to continue to be represented by
counsel of its choice is an important element of our adversarial system of litigation.
- A number of factors to be considered in determining whether solicitors should be removed:
(i) how the documents came into the possession of the plaintiff or its counsel; (ii) what the
plaintiff and its counsel did upon recognition that the documents were subject to solicitorclient privilege; (iii) the extent of review of the privileged material; (iv) the contents of the
solicitor-client communications and the degree to which they are prejudicial; (v) the stage of
the litigation; (vi) the potential effectiveness of a firewall or other precautionary steps to
avoid mischief
- Factor 1: the privileged documents came into the hands of CB & K under the exceptional
Anton Piller order in a way that was unintended but avoidable. Inadequate precautions were
taken. Those who fail to take precautions must bear the responsibility.
- Factor 2: CB failed to have the electronic documents listed at the search site as required by
the order and thereafter ignored the obvious significance of BLG's initials on the sealed
envelope.
Factor 3: The CBA submits that the plaintiff's counsel should not only promptly return the
inadvertently disclosed privileged materials, but also advise the adversary of the extent to
which those materials have been reviewed.
- Factor 4: CB &K failed to discharge the onus of identifying the contents of the solicitor-client
communications which they accessed in the course of classifying the material. It is therefore
not possible to determine the degree to which they are prejudicial.
- Factor 5: the litigation is at an early stage. At advanced stages of complex litigation, an order
removing counsel can be extreme and may have a devastating effect on the party whose
counsel is removed That is not the case here.
- Factor 6: in a matter of such sensitivity the court and the defendant are entitled to the best
available evidence. It seems apparent that appropriate firewalls were not in place prior to the
occurrence of the mischief.
CB & K have not produced sufficient evidence to satisfy the MacDonald Estate test, namely
that the public represented by the reasonably informed person would be satisfied that no use
of confidential information would occur.
- The right of Celanese to choose counsel yields to what occurred in the execution of the Anton
Piller order in this case and its aftermath, and that the reasonable perception of the integrity
of the administration of justice would be adversely affected were CB permitted to remain
solicitors of record for Celanese.
Ratio: The reasonable perception of the integrity of the administration of justice is primary.
In such a situation, it must be determines whether the integrity of the justice system, viewed
objectively, requires removal of counsel in order to address the violation of privilege.
The right to select counsel yields to the breach of solicitor-client privilege that occurred in the
execution of the Anton Piller order
NOTE: because Anton Piller orders are given ex parte and often quickly, it is possible that the plaintiff
who wrongly required it can be liable in damages (not costs). Sometimes the court requires the
plaintiff to provide an undertaking as to damages or security to pay damages (see para 40(1) (ii).
-
143
Legislation/Principles/Rules
1. ALI/UNIDROIT, Principle 8
2. CCP, arts. 25, 49, 509-515 (def’n of injunction; 510 provisional injunction no longer than 10 days;
511 conditions for granting; 512); 516-518 (seizure before judgment), 524 (sequestration)
3. ON Courts of Justice Act, ss. 101 (Injunctions)
4. ON Rules of Civil Procedure, RR. 40.01-40.03 (injunctions), 44-45 (seizure before judgment;
preservation of property interim order)
5. BC Court Order Enforcement Act, RSBC 1996, c. 78, s. 3(2)
Disclosure and Discovery, class 20
Class notes:
Disclosure vs Discovery
 Disclosure: communication of what a party wishes to use in evidence to prove the case
o Obligatory conveying of information you intend to use
 Discovery: power of inquiry into the other party’s case
o Advance interrogation
Recall elements of Disclosure
 We covered this a bit in pleadings
 QC and ON do things a bit differently
 In QC, the parties have to do three things:
o 1. Declaration/notification
 In their motion to institute proceedings, they have to declare the evidence they
plan to use. Described as ‘exhibits’
 Art 145, 247
o 2. Communication
 Deliver the exhibits. If it is very short, some people append them to the actual
demand, makes it easier. But usually there are too many documents for that to
be feasible.
 When do you have to do this? Create a plan of the trial process – case
management timetable (case protocol). First thing they have to do after making
a claim and announcing intention to defend. So they have to do this when they
agree to do it
 Art 148, 246
 What happens if you don’t hand over the document? You can’t use it - Art
248(2)
o 3. Production
 Communication=to the other party. Produced = in the court record
 You cannot use evidence that is not in the court record
 Art 250 – min 15 days before trial date
 What do you need to disclose? In QC: Anything YOU plan to use. But in ON it is different.
o So how does the D get documents the P has that are good for D? you find out about it
on discovery and then request it
 Disclosure in ON:
o Affidavit of documents
144


Parties have to give each other a list of all documents that are “relevant” to any
issue in the case
 ALL documents. Not only those good for that party, and not only the
docs that party plans to use
 Rule 30.03
o Key word: relevant. What is relevant? Ben v Gates case – shows how that arises on an
affidavit of evidence, and the definition the court will use for relevance
 Note: before the word relevant, the rules used to say “relating to”. Relevance is
seen as a narrowing of what documents will be required.
o Affidavit of documents is a great theoretical idea. But in practice, ironically, it can be
abused by the party sending you too much. Eg. View U case – Elizabeth receives over
100 boxes of documents. We think of abuse as not disclosing, but over-disclosure is
another form of abuse
 30.03 – you give this list of documents to the other party. The other party looks
through them, and asks you to send some over
o What are the sanctions?
 30.08 – If the document is favorable to the party, they cannot use it at trial. If
not, the court “may make such order as is just”
Bottom line: if you haven’t shared it, you won’t be able to use it
Discovery
 Key party of Anglo-canadian-US-pre-trial process
 We could do a whole course on discovery.
 Note difference between legal traditions: adversarial versus “inquisitorial” systems
o Nothing intrinsic about discovery process. Just seems natural in common law
jurisdictions. But doesn’t have to be that way.
 Discovery is inextricably linked to role of judge/parties
o In adversarial system: judge decided between competing parties
o Judge in common law systems (including QC), the judge is not responsible for eliciting
evidence
o Even though we have moved to a much more involved judge recently, we still don’t
have a judge eliciting evidence
o In continental civilian systems it is the judge’s role to get evidence, hire experts, etc
o So makes sense that there is no need for discovery, bc judge calls people in and adds
the information to the file. It’s not the parties who are in charge of gathering the
evidence
 Note: concept of pre-trial process has been inherited from England and jury trial. (Hazard piece)
 French law professors: If France got the class action, conditional fee arrangements, and
discovery, “ca serait la fin de la societe francaise”
 Within traditions, there are systemic differences: Eg differences between Anglo-Canadian vs US
systems
Discovery
 Purpose and Effects
 Costs and, therefore, new limits
 Scope
 Abuse/sanctions
145
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
Confidentiality
New world of e-discovery
Purpose
 Facilitates the trial – narrows issues and limits court resources
 Helps get closer to the truth
 Equals the playing field re information
What does it enable?
 Enables parties to assess the strengths and weaknesses of each side’s case
o Which hopefully leads to settlement
 Enables parties to obtain admissions
o Without admissions, you have to prove every single fact, and that can be time
consuming
 Enables parties to narrow issues for trial
 Enables them to assess credibility of a person examined as a witness
 Where does discovery take place?
o Usually in a law office room. Though it used to be in a courtroom, and it can be
anywhere
o But it is in circumstances where you swear an oath, and your testimony is recorded
o What happens to the transcript? Generally you are going to want to use what happened
in discovery in trial, so you put the discovery transcript in the court record.
 Allows parties to get a recorded version of testimony – a party’s memory prior to trial
o Trial could be years away. Memory fades.
 Can promote or induce settlement
Effect of Discovery
 Each party is forced to help the other party discover its case!
Cost




ON Task force report on discovery. 2010 – many changes made.
o Up to 25% of total billings in 32% of cases
o 25-50% of total billings in 40% of cases
o 50%+ of total billings in 23% of cases
Note: can’t discover experts
Issues of access to justice
o Designed to give A2J but prohibitive expense actually prevents
Limits on use of discovery (eg QC and ON)
o ON was first jurisdiction to put limits on discovery. Early 2010 severe limits placed on
discovery
o Two pivotal rules:
o Simplified procedure and regular procedure
o If it is a case under simplified procedure track, your discovery is limited to 2 hours
 Rule 76.04(2)
 No extensions
o Regular track: discovery limited to 7 hours
 Rule 31.05.1(1)
146
o
o
 Unless parties consent, or with leave of the court
QC: existing code, only limitation is that there is no discovery under $20,000
New code: same rule, but limit isi now $30,000 - art 229
 If between 30-100,000, you get 3 hrs
 If over 100,000, you get 5 hrs
 Parties may extend the 3 hrs to 4, or the 5 hrs to 7, BUT NO MORE
 Art 229(2)
 But Court can give you more time. So in case protocol, ask for more.
 Proportionality principle
Scope
 Another huge issue wrt discovery. What can you ask? What can you discover, and who can you
discover?
 Written vs oral discovery
o Might not save a lot of time and money – how many hours to answer a question?
o Parties don’t like it because you can’t assess credibility of witnesses
o But both QC and ON provide for this. Art 223. ON Rule 31.02 (says examination can be
written or oral, but not both)
 WHO may be examined
o This is one of the biggest myths of examination. We all watch US tv. Who is examined in
US? Everybody! Not like that in Canada. In Canada, ONLY the other party can be
discovered. With very few exceptions.
o General rule of thumb in Canada: you can examine the other party and no one else.
o EXCEPT with leave of the court…..
o Rule 31.10
o Art 221 – any other party can be examined with consent or judge’s authorization
 WHAT may be asked in an examination on discovery?
o What are we worried about in discovery? Fishing expeditions
o Questions that are relevant to an issue that is arising in the case
o Art 221
 Discovery plan
o Another big change brought into law in ON in 2010. Sought to directly limit the ambit
and scope of discovery
o Jukier thinks this was emulating a bit what QC does re its timetable agreement
o What has to happen in ON? Law said, “we’re not going to just let the parties to anything
they want to do. We are going to require the parties to come up with a ‘discovery plan’
 Rule 29.1
 Plan must be in writing. Must include intended scope of documentary discovery.
Dates for affidavit of documents. Timing, costs and manner of production of
docs. Persons intended to be produced for oral examination, any other
information -> 29.1.03(3)
o No separate discovery plan I QC, but it is part of the case protocol. Art 148(6)
Abuse and Sanctions
 Types of Abuse:
 Scope of questioning by party doing the examination
o How is that regulated? By objections. And without compliance, go to the court.
147


Evasive answers or non-compliance on part of party being examined
Unmeritorious objections to discovery and needless motions
Sanctions
 Types of sanctions:
 Costs – On Rule 34.14(2)
o Improper conduct of examination
 Evidentiary sanctions – disqualify use of evidence
o Rule 31.07
 Terminating sanction – terminate discovery, or even dismiss the whole case
o Art 230
 Contempt of Court?
o What is the issue with contempt of court. Why the question mark?
o We get contempt of court for not listening to the court. Is discovery a court process?
o Lac d’amiante case – most important case on discovery in Canada
Confidentiality
 Big argument against confidentiality of discovery: open court principle
 One question is: is discovery a court process? If so, how can it be confidential? But… is it? Ans:
no. there is court oversight, but it is not a court process and is not subject to the open court
principle.
 So HOW can we order contempt? Ans: it is possible, but only as a second tier. If one party brings
another to court about discovery an court makes an order and then the party violates the order,
THEN there can be a contempt order
Confidentiality
 Case of Lac d’Amiante. Jukier has written extensively on this case bc of the way in which legal
traditions intersect with procedural law in Canada.
o Interesting: QCCA found that discovery was confidential. Why? It is a common law legal
transplant. It came into QC in late 19C just before recodification of 1890. Came in
legislatively.
o Question is: if this is an import from the common law, should we not interpret it as does
the common law? QCCA says: yeah, sure.
o Lebel J does not like this reasoning. He criticizes QCCA for the reasoning. He says “that is
not the proper interpretative approach.” Have to see if confidentiality fits into civilian
system.
 Why should it be confidential?
 How does confidentiality square with the open court principle?
 How far does confidentiality go? Juman v Doucette
 What happens to the information that comes out of discovery?
 Discovery is done in private. Person is sworn. It is an oral examination. Similar to what would be
an oral examination in court. Examination is recorded and a transcript is produced
 But what happens to this information?
 Why do people do discovery? Multitude of purposes
o 1. To obtain evidence for ultimate trial
o Party entitled to put into record – but don’t have to
 If the case is settled, what happens to the record?
148
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


There is no automatic rule – no default position.
o In US, the stuff you get out of discovery is not held to be confidential, unless the party
has applied to the court for a protective order and has shown good cause for why it
should be
o Canada has opposite default
o Implied, or deemed, undertaking – in most rules.
o Ontario Rules 30.1.01(3)
Why should it be confidential?
o More inclined to be open/frank
o Discourage misuse of discovery
 Lebel J would even call this “abuse of right” to use info from discovery for other
purposes
Why should it not be confidential?
o Open court principle
o How does confidentiality square with the open court principle
o Today, discovery is not, technically, a court proceeding (lac d’amiante)
What is one of the key reasons of open court principle? To supervise behaviour of judges
o There is a worry that the information disclosed on discovery is information that the
public need to know
How far does confidentiality go? Juman v Doucette
o Should we waive confidentiality when what is discovered a potential criminal offense
Ediscovery
 Rules re disclosure and discovery of documents applies to electronic documents
 Rule in Ontario listing types of documents: includes “data and information in electronic form”
o So they are just documents
o So what is the difference? Why do we need to talk about this?
o Biggest difference is volume
o This increases cost
o Difficult to manage – located in dfferent places
o Dynamic (changeable)
o Reality is, this is all going to be outsourced to people (non-lawyers) who are going to
become experts in e-discovery
 E-documents are complicated in jurisdictions which require an affidavit of documents
o Slightly less of a problem in QC where you only list the docs you want to use
o But in ON, you have to send a complete list of any doc that is relevant
 E-discovery presents complications related to implied undertaking/confidentiality
Discovery
Ben v. Gates, 2013 ONSC 5814
Facts: A three car accident, with one car suing both others (one of which ran a red light, though which
one is a mystery). One of those cars was a police cruiser. An internal investigation was done as to
whether to lay charges against the officer. No charges were laid. This decision regards a requested
reappearance of the investigating Sgt to answer questions he refused to answer at his first crossexamination.
Issue(s): Are the recommendations and decisions of senior officers, verbally or as reports, relevant
and require disclosure?
149
Held: Reports are to be disclosed, at the Sgt is to be re-deposed if necessary.
Reasoning: Disclosure of all relevant documents required by civil procedure – Rule 30.02(1). It is a
matter of law not an exercise of discretion. CivPro also allows a reappearance of a witness (Rule
34.15(1). Even though lack of criminal charges is not evidence, the reports that make those
recommendations are relevant. Especially when it’s a conflict of interest matter of police investigating
police. Relevance is met.
Ratio: All relevant materials must be disclosed.
G.C. Hazard Jr., “Discovery and the Role of the Judge in Civil Law Jurisdictions” (1997-1998)
73 Notre Dame L. Rev. 1017
I. American and Civil Law Concepts of Judicial Role Compared
 Pre-trial discovery in an integral part of contemporary American civil litigation but is
unavailable in CVL jurisdictions
 Extensive pretrial discovery is unique to the USA; in other CML countries “fishing expeditions”
are not just prohibited but the rules make them almost impossible
 However, all CML systems begin from a concept of adversarial system; judge chooses
between competing presentations of evidence; advocates to develop and make those
presentations; judge not responsible for finding the truth or ensuring adequate development
of the evidence
 Civil law starts from entirely different premise: judge is responsible for finding the truth;
elicits relevant evidence; advocates assist him, but have no power of initiative
II. The Absence of Pretrial in Civil Law Adjudication
 Derivative from premise about the role of the judge is that there is no “pretrial” – this is a
common law division arising from an adjudicative system based on jury trial
 Civil law: case is subdivided issue by issue, considering both facts and law as to each issue
o No jury, so can do this; court makes ongoing appraisals of evidence
o Judge explores and sifts through evidence; judge needs to know only those facts
necessary to decide the case
o Evidence received on tentative basis is taken as truth unless other party objects
 Discovery (CML) allows each side to assess how much evidence will be needed to convince
the jury, so as to use resources efficiently
o Its primary function is to inform the advocates rather than inform the judge
 The negative reaction of civilian judges to American discovery is due to it being seen as an
invasion of their role and responsibility – it comes across as an attempt to circumvent the
judiciary and a peremptory demand that the judge undertake the inquiry
III. Société Aerospatiale
 Conflict btw the US Federal Rules which permit production of documents wherever they are
located, without prior judicial approval and the Hague Convention on the Taking of Evidence
Abroad in Civil or Commercial Matters, where evidence abroad is to be obtained by
application to the court in the country involved.
o Question of international law and of domestic law of civil law jurisdictions
 The notion that a party has a right to compel production of evidence violates the fundamental
principles of CVL but is a fundamental and nearly constitutional in modern American civil
litigation
150

SC interpreted Convention not to preempt Federal Rules but to be an alternative means that
could be displaced by the Rules when fairness so required (this is crazy nonsense and author
agrees)
o This is deeply offensive to civilian countries both as a matter of int’l law and of civil
procedure
IV. Constitutional Foundation of the Civil Law Concept of the Judicial Role
o This has evolved with the history of Europe – constitutional history includes
monarchism; resistance to judges going beyond the letter of procedural law (seen as
unconstitutional activism)
 Germany – judges seen as safe-guarding new democratic constitution (transformed from
previous status as authoritarian institution)
 France – French Revolution, Napoleonic Code as prioritizing the democratically constituted
legislature
o Corollary of this is judicial deference, judges as historical threat the Revolution
The Implied Undertaking of Confidentiality
Lac d'Amiante du Québec Ltée v. 2858-0702 Québec Inc., 2001 SCC 51
Facts: This case deals with the ‘examination on discovery.’ Examination on discovery is a procedure by
which a file is established on a person. It allows for information and documents that are still private at
that point to be obtained from a party with a view to obtaining admissions or discovering facts. The
purpose of the examination is to encourage the most complete disclosure of the information available,
despite the privacy imperative. This case addresses confidentiality regarding examinations on discovery.
Judicial History: The trial judge dismissed the respondent’s motion, he was of the view that the
respondent’s fears about the disclosure of trade or personal information could not prevail over the
principle that judicial proceedings must be public. The majority of the Court of Appeal allowed the
appeal, concluding that there is a rule of confidentiality and required that the parties to the case comply
with that rule.
Issue(s): Is there an implied rule of confidentiality concerning evidence or information obtained at
examinations on discovery under the Quebec Code of Civil Procedure?
Held: Yes. Appeal dismissed, decision of the Court of Appeal affirmed.
Legal Reasoning- Lebel, J:
Sources of Qc Civil Procedure
• Constitutionally, civil procedure in the Quebec courts is a provincial matter because of the
province’s jurisdiction over property and civil rights, the administration of justice and matters of
a merely local or private nature. However, civil trials in Quebec are conducted within a
framework that has been influenced by the common law courts.
The Effect of Codifying Procedure
• Civil procedure is found primarily in the Code. Although the scope of the rules of practice has
been gradually broadened, they are nonetheless made under the authority of the Code and
within the general framework defined by it. A Quebec court may not create a positive rule of
civil procedure simply because it considers it appropriate to do so. (para 37)
• Civil procedure is subject to the general principles found in the CCQ and it must also respect the
values expressed in the Quebec Charter.
The Basis for a Rule of Confidentiality
• There needs to be agreement as to what the nature of a rule of confidentiality with respect to
information obtained at an examination on discovery would be.
151
•
The rule of confidentiality seeks to limit the invasion of privacy at the examination on discovery
stage by restricting the scope of the examination to what is necessary for the conduct of the
proceeding. When the case reaches the trial stage, the effectiveness of the application of this
rule is no doubt limited and temporary; the obligation of confidentiality will sometimes be no
more than just one phase in the gradual disclosure of information that was originally private.
The Procedural Framework of the Examination on Discovery
• Arts. 396, 397 and 398 C.C.P. carry the rules concerning examination on discovery forward from
the 1897 Code. Articles 401 and 402 made changes to the provisions concerning the
communication of documents. Article 402 now permits a third party to be summoned to
produce a document. Article 401 abolished the requirement for leave of the court to compel the
production of a document by the adverse party. Major amendments to the rules governing
examinations on discovery occurred in 1983, when art. 398.1 was added, making it optional now
to file information obtained at an examination on discovery in the court record.
• The rules governing examinations on discovery include both the examination of witnesses and
the production of documents. Communication of documents is now to take place in the course
of the examinations held before or after defense filed. Before defense filed, the information
demanded must relate to what is set out in the claim. After defense filed, the information must
relate to the issue between the parties as a whole.
• A further amendment in 1984 permitted a party to examine any other person on discovery and
to obtain documents from that person, in addition to the parties or their representatives, with
leave of the court.
Objections to an Implied Rule of Confidentiality
• The nature of the first objection to recognizing an implied rule of the confidentiality of evidence
or information obtained on examinations in Quebec civil procedure is based on the principle
that trials are public. The Code of Civil Procedure provides that the sittings of the courts are
public unless the court orders that they be held in camera in the interests of good morals or
public order (art. 13). The problem here is to determine whether an examination on discovery is
always a sitting of the court.
• The changes that have occurred in civil procedure have expanded the exploratory nature of the
examination on discovery procedure and, as a general rule, have made it private. The
examination takes place under the control of the parties, outside the court and with no
involvement on the part of the court, other than in exceptional cases; therefore it is not usually
a sitting of the court.
Substantive Authority for the Rule of Confidentiality
• Recognition of this obligation of confidentiality is justified by the substantive legal rules set out
in the Quebec Charter and the CCQ. Section 5 of the Quebec Charter expresses a general
recognition of the right to the protection of privacy interests. In addition, art. 35 CCQ states this
principle when it recognizes that every person has a right to the respect of his privacy. Article 36
CCQ protects the privacy of a person against the unauthorized use of his or her correspondence
and manuscripts by other persons. And art. 37 CCQ governs the establishment of files on any
person. That article requires that there be a serious reason for establishing a file on another
person and that the person establishing the file have the consent of the person concerned or
authorization by law
• There is an additional statutory foundation for the implied obligation of confidentiality in QC
law. Using information and documents obtained at an examination on discovery for purposes
unrelated to the case may amount to a breach of good faith. The doctrine of abuse of right
which is codified in arts. 6 and 7 CCQ would then provide an additional basis to justify
recognizing the confidentiality rule in Quebec law.
152
The Scope of the Rule of Confidentiality
• The rule applies during the case to both a party and the party’s representatives, and it remains
applicable after the trial ends. However, there must be some limits on the rule. For instance, the
court will retain the power to relieve the persons concerned of the obligation of confidentiality
in cases where it is necessary to do so, in the interests of Justice.
• However, the courts will avoid exercising that power too routinely. Courts must assess the
severity of the harm to the parties involved if the rule of confidentiality were to be suspended,
as well as the benefits of doing so. In cases where the harm suffered by the party who disclosed
the information seems insignificant, and the benefit to the opposing party seems considerable,
the court will be justified in granting leave to use the information. Before using information,
however, the party in question will have to apply for leave, specifying the purposes of using the
information and the reasons why it is justified, and both sides will have to be heard on the
application.
Ratio: An implied rule of confidentiality at an examination on discovery may be found in Quebec
procedural law, based on the changes that have taken place in the institutions of the civil procedure and
on privacy principles.
Juman v. Doucette, 2008 SCC 8
Facts: Juman ran a daycare where she cared for Doucette’s daughter. While in J’s care, D’s daughter
had a seizure. The D’s sued for negligence. At the same time, the Vancouver Police were undergoing
an investigation into J. During the trial between J and D, J brought a motion to prohibit the parties of
the proceedings from providing Discovery transcripts to the police. The AG-BC opposed the motion. J
did Discovery and the case later settled so none of the information is publicly available. The
Vancouver Police want the transcripts to use in their investigation.
Issue: Are facts revealed during discovery covered by the “implied undertaking” rule – meaning, can
they be revealed to third parties, including the police?
Holding: Yes, discovery is protected by an implied undertaking, no it cannot be revealed to third
parties.
Reasons: (Binnie J)
Rationale of implied undertaking
 The AG-BC says that an implied undertaking for discovery documents is contrary to the “open
court” principle. Binnie J says this is nonsense. Pre-trial discovery does not take place in
“open court”. Open court principle only applies to trials.
 Pre-trial discovery is an invasion of privacy. But pre-trial discovery is necessary to prevent
surprise or “litigation by ambush”. So R 27(22) of BC Rules of Court compel a litigant to
answer all relevant questions posed, even those that are prejudicial. “The public interest in
getting at the truth in a civil action outweighs the examinee's privacy interest, but the latter is
nevertheless entitled to a measure of protection” (para 25). Rule 27(22) compels cooperation
ONLY for the purpose of civil litigation, and NO OTHER purpose.
 Another policy reason for allowing the implied undertaking: people will be more likely to tell
the truth if they know what they say in discovery can’t be used against them outside of the
litigation.
 Therefore, there is an implied undertaking to the court to not use any documents or answers
obtained during pre-trial discovery for any other purpose.
Remedies for breach
 “Breach of the undertaking may be remedied by a variety of means including a stay or
dismissal of the proceeding, or striking a defence, or, in the absence of a less drastic remedy,
contempt proceedings for breach of the undertaking owed to the court” (para 29)
153
Exceptional circumstances that may trump the implied undertaking
 A compelling public interest may trump the parties’ privacy interests. Parties may apply to the
court for leave to use the information for non-litigation purposes. Applications must be dealt
with expeditiously.
 In such an application, the applicant must show on the balance of probabilities the existence
of a public interest of greater weight than those represented by the implied undertaking.
I.e. greater than privacy rights of the parties and promotion of efficient and fair litigation. In
the case of a criminal investigation there is also the right of an accused to remain silent and to
not incriminate herself. (In this case, this latter factor is decisive).
 MB, PEI, and ON have written exceptions to the implied undertaking into their rules. The test
is:
o If satisfied that the interest of justice outweighs any prejudice that would result to a
party who disclosed evidence, the court may order that [the implied or "deemed"
undertaking] does not apply to the evidence or to information obtained from it, and
may impose such terms and give such directions as are just. (para 34)
 If there is “immediate and serious danger” to someone or an identifiable group, then a party
may apply for leave to the Court for an exception, OR may go directly to the police. (eg of this
is Smith v Jones case, where a psychiatrist knew his patient was planning to rape and kill
prostitutes but his knowledge of that was protected by doctor-client privilege).
 If an individual has given inconsistent testimony in successive or different proceedings, and
the discovery documents will prove this, the implied undertaking would also not apply.
 Where discovery documents contain evidence of a crime the parties cannot make their own
decision about exceptions, they must apply to the Court, and the Court will decide, balancing
all of the interests, and balancing the weight of the information revealed, whether or not the
parties can go to the police with the evidence. Because litigants are COMPELLED by statute to
answer questions in discovery, and may not exert their right to not incriminate themselves (a
right they HAVE for criminal investigations), this will not be decided lightly.
 The Court wants to avoid a situation where one party can use the threat of “I will go to the
police with the information I have” to force a settlement out of the other party.
Continuation of implied undertaking and ways to overcome
 The fact that there is a settlement and the Discovery is now moot does not render the implied
undertaking moot.
 Third parties may make an application to see discovery transcripts, if they have a valid reason
(like the Police and the AG in this case).
 Discovery documents are also not exempt from seizure, so if police get a search and seizure
warrant, they can have access that way.
E-Discovery
The Sedona Conference Working Group 7, “At a Glance” (at iv) and “Introduction” (at 1-8),
The Sedona Canada Principles – Addressing Electronic Discovery (January 2008)
Introduction
 Parties should ensure that steps taken in discovery are proportionate, taking into account the
costs burden and delay that may be imposed on the parties to deal with electronically stored
information
“Electronic discovery” = discovery of electronically stored information ex. e-mail, web pages, computer
databases ect. “paper discovery” = discovery of writings on paper that can be read without electronic
devices.
154


More than 90 percent of all information is created in electronic format.
In Canada rules for documentary production are codified by each province’s rules of civil
procedure or rules of court. “Document” typically includes electronic records or data.
Electronic documents are different form paper in the following ways:
A) Large Volume and Ease of Duplication- eg. Emails can be resent to multiple parties, and some web
pages automatically back up data
B) Persistence – e-documents Are Hard To Dispose Of- Despite the attempt to delete electronic
documents, information may remain on an electronic storage device until it is overwritten by new data
.Plaintiff can bring electronic data even though it has been “deleted” if it still exists.
C)e-documents Are Attached To Tracking Information (Metadata)- Metadata includes information on
file designation, creation and edit dates, authorship, and edit history. Metadata is necessary to
authenticate a document or establish facts material to a dispute (eg. When a file was accessed, who was
it CCed to). Deciding what metadata needs to be specifically preserved = one of the biggest challenges in
electronic document production.
D) e-documents Are Often Updated Automatically (Dynamic, Changeable Content)- e-documents may
change over time, often without the user being aware. Sharing application data files among many users
(“virtual” work groups) further compounds this problem.
E) Electronic Data Often Need A Computer Program, Which May Become Obsolete- To make sense of
the data, a viewer needs the context, including labels, columns, report formats, and other information.
Technological change and obsolescence can create unique issues for recovering “legacy data”
F) e-documents Are Searchable, And May Be Dispersed In Many Locations- The ease of transmission,
routine modification and a multi-user editing process may obscure the origin of a document. some
forms and media can be searched quickly and fairly accurately by automated methods- this saves a
lawyer time!
Why Do Courts and Litigants Need Standards Tailored to Electronic Discovery?
A preservation order to save “all records pertaining x” is easy to comply with if all documents were
paper With electronic documents, since they are ubiquitous, a party would have to either suspend
operations or copy all electronically stored information, wherever located and in whatever form- that
may not even be relevant. There is a need for standards that account for the uniqueness of electronic
document production
Is the “Paper” Discovery Case Law Applicable to Electronic Discovery?
 Aim is to secure the “just, most expeditious and least expensive” resolution of litigation
 There should be no expectation that an organization search the electronic files of individuals
with no connection to the litigation (relevance)
 Parties should not need to preserve electronic documents as well as backup copies.
(Duplications)
 Counsel should use key words to electronically search through electronic files, as opposed to
printing each page
Precedents Derived From Paper Discovery Are Often Inapplicable To Electronic Documents-Must look at reasonable limits
 Just as a party would not be required to sort through its trash to resurrect discarded paper
documents, so it should not be obligated to pay the cost of retrieving deleted emails.” However,
if there is a credible allegation that evidence has been destroyed, recovering destroyed
documents may be justified
 Avoid indiscriminate copying and retention of electronic files – even if cheaper than
indiscriminate copying and retention of paper files – this leads to greater headaches in litigation:
ballooning costs of review for relevance
155
Some Rules Developed For Paper Discovery Can Be Adapted To Electronic Discovery
 Rules governing discovery are media neutral, in that they apply to documents in all forms of
media—electronic files or stone tablets.
 Must ask is the factual differences between the paper context and the electronic context are
relevant to the rule, “Does the existence of documents in electronic form make another
technique more efficient?”. If so, the precedent may not be a good model
Canada/US/QC Models
 In Canada (not QC) there is generally a positive duty on each party to litigation to produce
potentially relevant documents, imposed by the provincial rules of civil procedure.
 In the US the production obligation stems from the obligation to respond to specific production
requests; therefore, if a document is not requested, it need not be produced, even if it is
relevant
 In QC there is no general duty to produce potentially relevant documents- but usually done so
anyways
 The Implied Undertaking rule provides that evidence obtained in a civil discovery will not be
used for any purpose beyond the action in which it was obtained, without the consent of the
party from whom it was obtained or leave of the court. (Alberta + British Columbia follow this)
 In QC the CCP does not specifically require the preservation or production of information
beyond documents that the disclosing party intends to refer to as exhibits at the hearing. There
is a general obligation of parties to refrain from acting with the intent of causing prejudice to
another person or behaving in an excessive or unreasonable manner.
Conclusion- translating the rules of discovery into the law of electronic document production
requires understanding some practical differences and implications of using electronic instead of
paper documents.
Legislation/Rules
1. CCP, arts. 145 (summons, list of exhibits, reply within 15 days), 148 (case protocol), 221-230 (pretrial discovery; oral and written; 226: don’t have to face your attacker; 229: no examination for
discovery for less than $30,000, max 5 hrs; 230=excessive or unnecessary can be cut short), 246-248
(disclosure and case protocol), 251, 257 (if a witness might die)
2. ON Rules of Civil Procedure, RR. 29.1(Discovery plan), 29.2 (principle of proportionality in discovery);
30.02-31.07(2) (note 30.03=disclosure, affidavit of documents; 31.05=ti me limit of 7 hours for
discovery), 34.14 (Adjournment to seek direction for abusive discovery), 76.04(no written
discovery?)
Summary proceedings, class 21
Class notes
Summary proceedings
 Truth is, form the moment someone walks through the door, you are trying to figure out how to
shut this down
 Courts frame it as an access to justice issue
 But think of these as off-ramps on the highway of litigation
Default judgment
 CCP, art 180
156
o

Mainly in default of an answer
 Judgement without any further delay/notice
o But can also be other failures
ON Rule 19
o 2 steps: noting in default (19.01(1)), then signing (19..04(1)) or motion (19.05(1))
Motion to strike
 Request to strike out some/all of opposing party’s pleadings
 No evidence admissible
 Ontario
o R 21.01(b) no reasonable cause of action
o 25.11: will prejudice or delay a fair trial, or scandalous/frivolous/vexatious, or abusive
o NV: where a pleading is struck out in full, party can be noted in default (19.01(2)), or
judgment can be immediately granted 21.01(b).
 You can get part of pleading struck or entire pleading struck. Person might have pleading with 4
causes of actions, and 2 might have no basis in law, or 1 might say “so and so had an affair”
which is totally irrelevant. So you can get those struck. What is in the pleading is what will be
talked about. Constrains all of your actions later.
 Often a pleading will be struck “with leave to amend”
 But, sometimes, no good: Imperial Tobacco – you can frame this however you want, you are
trying to attack a policy decision, and you can’t do that
 Quebec: requête en radiation
o Art 169, 2e: party may apply to the court to “strike immaterial allegations”
o Recall: Saint Martin case, where union (unsuccessfully) sought the striking of 125/212
paragraphs on the basis that they were superflouous
 Art 53: (abuse of procedure)
Imperial Tobacco cases
 At SCC (2011), motion brought to strike allegations against third party (Canada)
o Test (BC):where plain and obvious, assuming facts pleaded to be true, that no
reasonable cause of action is disclosed
o Claims against 3P struck out, therefore, claim ended
 But in QCCA (2012), motion brought “en recevabilite” under (existing) art 165 (new art 168):
motion to dismiss
o Dismissed on basis of stare decisis
 What is important to know: the third party claims in each of the cases were basically identical
 In QC: Riordan J in trial did not accept that the claims should be struck. Why? Because it was
brought so late. “on the eve of trial” you can’t bring this motion that is so disruptive
 But see art 165 test in para 134-35: largely the same as motion to strike?
o Are they really all that different? Marika thinks not
 How is doctrine of stare decisis applied?
o Why does the court keep talking about res judicata?
o Court was bound
o Same inevitable result
 CSN: “no unreasonable prospect of success” applied (existing 186(4)); unfounded in law
o Comment from Jukier: bit of a disconnect between these statmeents about stare decisis
and QC civil law methodology
157
Motion to Dismiss
Abusive/vexatious
Jurisdiction
Res judicata
Lis Pedens
Incapacity
No interest
Unfounded in law
Claim paid
For delay
CCP
53
167
168
168
168
168
168
168
ON
2.1(6)
21.01(3)(d)
21.01(3)(a)
21.01(3)(c)
21.01(3)(b)
14.10
24.01
R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 (excerpt)
Facts: Involves two cases. The first case (Cost Recovery Act - CRA) is about recovering health care
costs against tobacco companies who knew or should have known about the harmful effects of
smoking since 1950. The second case (Knight) is a class action against imperial only seeking refunds
for mild or light cigarettes and damages. Tobacco issued third-party notices to the government of
Canada stating that they would be entitled for compensation from them for negligent
misrepresentation (MR), negligent design (ND) and failure to warn, and at equity. Tobacco also claims
that Canada would be liable under the Cost Recovery Act as a manufacturer/supplier. Finally, Tobacco
alleges that, pursuant to the Negligence Act, they are entitles to contribution and indemnity from
Canada.
Judicial History: All struck down at trial. BCCA allowed the appeal in part. The majority agreed that
the negligent misrepresentation claims arising from Canada’s alleged duty of care in both cases
should go to trial. For Knight, the majority held that the negligent misrepresentation claim based on
CA’s alleged d of c to consumers should go trial, if the previous claim was rejected, as should the
negligent design claim. Everything else was unanimously struck down.
Issue(s): Should any of Tobacco’s claims be tried or should Canada’s motion to strike be allowed?
Held: Canada’s motion to strike all claims is granted as it is plain and obvious that none of the claims
have a reasonable chance of success.
Reasoning: Canada’s Alleged DofC to Smokers (CRA): Claim struck. A third party may only be liable for
contribution under the Negligence Act is it is directly liable to the PL (ie BC).
Negligent Misrepresentation: In Knight, Imperial alleges that CA misrepresented the health attributes
of low-tar cigs to consumers. In both cases, Tobacco claims that CA made negligent
misrepresentations to them. To determine the reasonable prospect of success, the general
requirements of tort must be met. Requires a (1) relationship of proximity (2) in which failure to take
reasonable care might foreseeably cause loss or harm to PL. In NM, both requirements for a prima
facie DofC are established if there was a special relationship between the parties, which is established
when (1) DF ought to reasonably foresee that the PL will rely on their representations, and (2)
reliance by PL would be reasonable. In Knight, there is no prima facie DofC as CA made general
statements to the public about low-tar tobacco, not to Tobacco in specific. In the CRA case, the facts
allege a history of interactions between CA and Tobacco involving advice to them specifically and is
combined with CA’s role as a regulator. There is no tort liability for conflicting policy considerations.
The ‘representations’ are protected expressions of government policy. As long as they are not made
in bad faith they are free from liability. MN claim must feel because a duty to Tobacco amounts to a
duty to consumers.
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Claims for Failure to Warn: Tobacco claims that CA directed them not to put warnings on cig packets
as well as their general failure to warn that tobacco is unhealthy. Both claims should be struck for the
same reasons as MN (policy considerations and protected expression).
Claims for Negligent Design (ND): Two claims. First claim is that CA breached its DofC to Tobacco in its
negligent design of the low-tar tobacco strains. Second in Knight, is that CA breached its DofC to
consumers for the same reason. Both claims create a prima facie DofC. Proximity is based on the
commercial relationship/capacity with Tobacco and consumers. However, CA was acting on its health
policies not on commercial interests. As a core gov’t policy, it cannot ground a claim for ND.
Liability as a Manufacturer and a Supplier: This is just relevant to the CRA case and it should be struck.
It is plain and obvious that CA is not a manufacturer under the Act as it was not the intention of the
BC legislature. Similarly, CA cannot be considered a supplier as it was not acting “in the course of
business”.
Claims for Equitable Indemnity and Procedural Considerations: EI is a narrow doctrine for when the
principle will indemnify its agent for acting on its directions, and does not apply. Claims for declatory
relief also struck as Tobacco’s defences will not be severely prejudiced if CA was no longer a third
party in the litigation.
Test for Striking Out Claims: A claim will only be struck if it is plain and obvious, assuming the facts
pleaded to be true, that the pleading discloses no reasonable cause of action (Odhavji Estate v
Woodhouse, 2003). In other words, the claim has no reasonable prospect of success. If a reasonable
prospect of success exists, the matter should be allowed to proceed to trial. The power to strike out
improbable claims is for efficiency in the conduct of the litigation and correct results. Good for
lowering costs. Motion to strike must be used with care as the law evolves and it is not determinative
that the law has not yet recognized that particular claim.
Ratio: A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that
the pleading discloses no reasonable cause of action.
Motion to Dismiss
Canada (Procureur général) c. Imperial Tobacco Ltd., 2012 QCCA 2034 (excerpt)
Facts: This is a class action suit that was brought by 1.8 million people in Quebec against three major
tobacco manufacturers. The tobacco companies claimed that if they were found liable for personal
injury, then the government should share financial responsibility as well, because tobacco products are
government regulated products.
Judicial History: The court of first instance rejected the Procureur’s (PGC) request for dismissal of the
three actions instituted against them by the tobacco manufacturers, and did not recognize the authority
of R. c. Imperial Tobacco Canada as precedent.
Issue(s): (1) Can a judgment dismissing a plea of inadmissibility be appealed? (2) Is stare decisis
applicable in this situation with regards to the 2011 SCC Imperial decision concerning similar issues? (3)
Does public interest immunity apply to the federal government for its decisions of fundamental policy?
Held: (1) By exception, yes. (2) Yes. (3) Yes. Superior Court ruling reversed, motion to dismiss granted to
the government.
Legal Reasoning- Gascon JCA:
 (1) Based on well-established jurisprudence, the judgment dismissing a plea of inadmissibility is
not, generally speaking, appealable.
 Rare exceptions exist, the permission to appeal a judgment that rejects a plea of inadmissibility
is accorded when the debate is about a lack of jurisdiction, is lis pendens (a pending legal
action), res judicata (a matter already judged), or a new issue of public interest. The court is also
159
sometimes allowed to appeal the rejection of a plea of inadmissibility when the judge of first
instance avoids ruling and returns the issue before a court of the same level.
 The permission to appeal must exceptionally be accorded here (making an exception for the
government). I consider that the exception presents some similarities to the issue of a new point
of law, and one that is of public interest. Though jurisprudence reminds us that we must reserve
this exception for particular cases and interpret and apply it strictly, the issue at stake on the
concept of stare decisis is, if not new, at least rarely addressed by the Court. On top of that, it is
in a dispute about federal governmental immunity for a reason of public interest.
 (2) The trial judge should have recognized the authority of precedent of the Imperial case on the
argument of immunity invoked by PGC to counter the claim. He could not defer the decision
because of the reason that evidence was required in a context where the Supreme Court had
already specifically analyzed and decided this question.
 The trial judge also could not distinguish the Imperial decision on the basis that it was not the
same procedural, private law, or factual context when these distinctions were irrelevant or nonexistent.
 (3) The Imperial case adequately addresses this issue. The court updates the common law by
redefining the approach that allows us to identify fundamental policy decisions that are exempt
from judicial review of the federal government’s liability. The federal government enjoys
immunity from prosecution for policy decisions, but can be liable for operational decisions.
 Fundamental policy decisions for which the government is not prosecutable must relate to a
policy that is based on considerations of public interest, including economic, social and political
decisions, provided that such decisions are neither irrational nor made in bad faith.
 The court retains that the government’s declarations to the tobacco industry, said to be inexact
and negligent, do not engage its responsibility. The line of conduct and all that is an integral part
of it are protected expressions of the Canadian government’s policy, adopted by its highest
authorities, and involving elaborate social and economic considerations.
Ratio: By exception, a judgment dismissing a plea of inadmissibility is appealable
- The authority of precedent exists
- The federal government enjoys immunity from prosecution for fundamental policy decisions
Canada (Attorney General) v. Confédération des syndicats nationaux, 2014 SCC 49
(headnote)
[note: the facts are a bit hard to follow since we are only given the headnote to read-focus on the ratio&
reasoning!]
Facts: In 1998 some unions went to court to strike down certain provisions of the Employment Insurance
Act that related to a premium-setting mechanism, which had made it possible to accumulate surpluses
totaling several billion dollars. The unions believed the government was misappropriating funds that were
supposed to be earmarked for employment insurance. In a 2008 decision on that matter [CSN v. Canada],
the Court declared the premium-setting mechanism used for 2002, 2003 and 2005 unconstitutional
because during those years, premiums ceased to be a regulatory charge without being authorized by
Parliament as taxes. In 2010, the Jobs and Economic Growth Act was passed. It had the effect of closing
the Employment Insurance Account retroactive to January 1, 2009 and creating a new account, the
Employment Insurance Operating Account. This account did not contain the balance, which by then was
over $57 billion. The CSN and the FTQ (the “unions”) filed an action seeking to have that initiative
declared unconstitutional. According to them, erasing the system reserve through an accounting procedure
retroactively eliminated its administrative nature and made it inconsistent with s. 91(2A) of the
Constitution Act. The Attorney General of Canada submitted that the issues raised by the unions had
already been decided by the Court in CSN v. Canada and moved to dismiss the action under art. 165(4)
C.C.P.
160
Issue(s): Should the unions’ motion be granted? Had this issue been disposed of in the 2008 decision?
Judicial History: The motion to dismiss was granted by the Quebec Superior Court, but the Court of
Appeal set aside that decision. The CA found that the action concerned an issue that had not been
disposed of in CSN v. Canada [the 2008 case.]
Held: No motion should not be granted. Yes this matter had been disposed of in 2008 case
Reasoning: before dismissing an action based on a similar authoritative case, the judge must be satisfied
that it would produce and complete certain and final solution to the present dispute. In the unions’ view,
the premiums paid in the context of the employment insurance program are constitutionally valid only if
they are properly accounted for. However, CSN v. Canada[2008] settled the law in this regard, and it
deprives the present motion to institute proceedings of any legal basis. In the 2008 case, the Court held
that the amounts collected as contributions to the employment insurance program form part of the
government’s revenues and can be used for purposes other than paying benefits.
Art 165 CCP States:
The defendant may ask for the dismissal of the action if:
(1) There is lis pendens or res judicata;
(2) One of the parties is incapable or has not the necessary capacity;
(3) The plaintiff has clearly no interest in the suit;
(4) The suit is unfounded in law, even if the facts alleged are true.
The courts must be cautious in exercising the power afforded to them under 165. Although the proper
administration of justice requires that the courts’ resources not be expended on actions that are bound to
fail, the cardinal principle of access to justice requires that the power be used sparingly, where it is clear
that an action has no reasonable chance of success. The application of the doctrine of stare decisis is fatal
to it: this Court’s 2008 decision in CSN v. Canada settled the law on the legal issues this action raises.
That decision therefore deprives the unions’ motion to institute proceedings of any legal basis.
Ratio: Art 165 CCP allows a court to dismiss an action if there is no legal basis. This power should be
used sparingly, but in the context where the case has already decided and stare decisis applies, it is in the
interest of the administration of justice that the case be disposed of at a preliminary stage.
Summary Judgment
Summary judgment
 Big difference between motion to dismiss and summary judgment is that you can bring evidence
 Exists broadly in common law jurisdictions, but not (per se) in QC
 In Ontario, R 20.01
 Evidence is permitted, historically uncontroversial, no issues of credibility
 Book with quote from 7 years ago: says “the bar is high. This is for unmeritorious claims”
 Test has evolved from genuine issue for trial -> genuine issue requiring a trial
o Wait a second – that’s pretty different. That is a different default. From default; we’re
going to trial; to default: do we HAVE to go to trial?
Hryniak v Mauldin
 Radical departure (para 28 “shift in culture”) from traditional default of cases going to full trial
(para 24 “illusory”)
 Adjudication must be proportionate in order to achieve justice, therefore every effort must be
made to decide the case on summary judgment
 Para 49: “no genuine issue requiring a trial when the judge is able to reach a fair and just
determination on the merits on a motion for summary judgement”
 Emphasis on powers available under 20.04(2.1), and (2.2)
o In case you don’t have enough info to come to a fair and just determination
161

o You can even evaluate credibility from an AFFIDAVIT
Note also deference (appellate SOR)
Hryniak v. Mauldin, 2014 SCC 7 (excerpt)
Facts : Mauldin (group of American investors) gave money to Hryniak (Canadian investment group) to
be invested. Instead of investing, H put the money in an offshore account, and it then disappeared. M
sued H for fraud. M then brought a motion for summary judgment. The TJ granted the motion and
made a judgment that H had committed fraud. ONCA said this case was too complicated to be subject
to summary judgment, but still dismissed the appeal bc they found that the evidence supported the
finding of fraud.
Issue: Was this an appropriate case for summary judgment?
Holding: Yes
Reasons: Karakatsanis J
 Summary judgment is an important tool for enhancing access to justice. Every jurisdiction in
Canada, except QC, allows for it. Ontario’s Rule 20 was modified in 2010 to improve access to
justice. The new rule extends purpose of summary judgment from just being a way of
weeding out unmeritorious claims to being a legitimate alternative for adjudicating and
resolving disputes. Rule 20 says summary judgment may be granted if (a) there is no genuine
issue requiring a trial, or (b) the parties agree to it and the Court is satisfied it would be
appropriate.
 Trial is not a default procedure. New rule also allows some fact-finding power to judge when
making the summary judgment (can have oral evidence, “mini-trial”).
When is there no genuine issue requiring trial?
 Para 49: “when the judge is able to reach a fair and just determination on the merits on a
motion for summary judgment. This will be the case when the process (1) allows the judge to
make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3)
is a proportionate, more expeditious and less expensive means to achieve a just result.”
The interest of justice
 The rule says the judge may use fact-finding powers in summary judgment, UNLESS it is in the
“interest of justice” for there to be a trial. What is the interest of justice? Not only fact-finding
ability, but also timeliness, cost-efficiency, etc.
 The evidence need not be equivalent to a trial, but only enough for the judge to be confident
she can fairly resolve the dispute.
 If there are multiple claims and some will go to trial anyway, it may not be in the interest of
justice to decide some of the claims on summary judgment
The Power to hear Oral Evidence
 The power should be employed “when it allows the judge to reach a fair and just adjudication
on the merits and it is the proportionate course of action” (para 63)
The process (para 66):
 1. Judge should first determine if there is a genuine issue requiring trial, based on the
evidence, and WITHOUT using new fact-finding powers.
o Summary judgment is ok if she will have the evidence “required to fairly and justly
adjudicate the dispute and is a timely, affordable and proportionate procedure”
 2. If there is a genuine issue requiring trial, THEN she should see if she can avoid trial by
using her new fact-finding powers, as long as it is not contrary to the interests of justice to
do so.
162
o
“Their use will not be against the interest of justice if they will lead to a fair and just
result and will serve the goals of timeliness, affordability and proportionality in light
of the litigation as a whole.”
o The decision to use fact-finding powers is discretionary.
 Where a motion for summary judgment is dismissed, the judge may use a multitude of other
powers in the Ontario rules to overcome the prejudicial effect of this (added cost and time to
trial). This includes case management, and the summary judgment judge taking on the case as
the trial judge.
 Decisions of summary judgment should attract deference, and should not be overturned
absent “palpable and overriding error”.
Ratio: Summary judgments should be used more – they are good for access to justice. Also, probably
the above test re how to decide whether or not summary judgment is appropriate.
Simplified Proceedings/Summary Trials
Summary trial
 Bc rules since 1983 permit a summary trial = a trial on affidavits, instituted by interlocutory
motion
 Osborne report recommended the adoption of a summary trial procedure but this
recommendation was not taken up (Hryniak para 40)
 Did sufficient powers already exist?
o Court’s powers under R 20.04(2.1) and (2.2)
o Summary trials are available in simplified proceedings (R 76.12)
 Less than $100,000=mandatory, but you can opt in as well
A Rose by any other name?
Hryniak para 50 vs Insiration Management para 52, 48
 Hryniak says : Once someone brings a motion for summary judgment, it’s going to be decided by
summary judgment, unless it is UNJUST
 It used to be that if you brought a summary judgment, you could be penalized with costs, but
they got rid of that bc they don’t want to discourage motions for summary judgment
Question of law
 Seeks ruling of court on isolated question of law (where factual matrix may not be crucial)
 Ontario
o R 21.01(1)(a): “where the determination of the question may dispose of all or part of
the action, substantially shorten the trial or result in a substantial saving of costs”
 Motion
o See also RR 20.04(4), 22
 Rule 22 is the special case, where the parties agree that courts should give a
ruling on a question of law
 Sub (4) is a motion for summary judgment
 Marika: where something is mentioned in three different rules, might want to
take it serious
 CCP, art 209 (joint submission)
 Classic example of this would be limitation period
Discontinuance/withdrawal
 Voluntary termination of a party’s claim/defence, in whole or in part
163



Ccp, arts 213 (discontinuance), 217 (acquiescence)
Ontarion R 23.01 (discontinuance) , 23.06 (withdrawal)
o Where whole defence…
….
Inspiration Management Ltd. v. McDermid St. Lawrence Ltd., (1989) 36 B.C.L.R. (2d) 202
(CA)
Facts:This was an appeal by the plaintiffs against dismissal of their application for summary judgment
under R. 18A of the British Columbia Supreme Court Rules.
 The personal plaintiff was the sole shareholder of the corporate plaintiff. The corporate plaintiff
had investment accounts with the defendant brokerage house. The personal plaintiff borrowed
money from the defendant and placed it in the corporate plaintiff's investment account. The
personal plaintiff subsequently withdrew the borrowed funds from the investment account
which caused that account to fall into a debit position. The personal plaintiff also fell into default
regarding payment of the loan. The defendant consequently began selling various shares in the
accounts to recoup the debt. The plaintiffs brought an action for damages and restitution
claiming that some of the shares sold had not been pledged as security for the loan. The
affidavit evidence respecting which shares were pledged as security was conflicting. The trial
judge dismissed the Rule 18A application on the grounds that R. 18A procedure was only
available where a normal trial could not possibly make any difference to the outcome.
Case History:The trial judge dismissed the application for judgment under Rule 18A because she
considered the test to be applied under this rule precluded her from giving judgment unless it was "...
clear that a trial in the usual way could not possibly make any difference to the outcome."
Issue(s): Did the judge use the wrong test in determining how Rule 18A of the BC Rules ought to be
applied?
Held:Yes. The appeal was allowed and the plaintiffs were granted leave to file a new R. 18A application
for summary judgment.
Reasoning:
 The chambers judge applied the wrong test in determining whether the summary trial and
judgment procedure was appropriate for the resolution of the issues in this case.
 Rule 18A was designed for the express purpose of permitting summary trials even if there was
conflicting affidavit evidence. An arguable defence should not always defeat an application
under this rule. Only where a judge was unable to make critical findings of fact necessary for a
determination of the issues and where cross-examination of the affidavits or other means of
clarifying the evidence would not remedy this problem, or where it would be unjust to
determine the issues raised in the application should the judge then decline to hear the
application.
 It must be accepted that while every effort must be made to ensure a just result, the volumes of
litigation presently before our courts, the urgency of some cases, and the cost of litigation do
not always permit the luxury of a full trial with all traditional safeguards in every case
particularly if a just result can be achieved by a less expensive and more expeditious procedure.
 On the determination of the question of whether it would be unjust to give judgment based on
the summary trial procedure, the chambers judge should consider the amount involved, the
complexity of the matter, its urgency, any prejudice due to delay, the costs of taking the case
forward in relation to the amount involved, the course of proceedings, and any other matters.
 It was wrong for the chambers judge to speculate whether a full trial would reach the same or
different conclusion on the merits of the case and base his or her decision as to whether to
proceed on this basis.
164

The test for Rule 18A is the same as on a trial. Upon the facts being found the chamber judge
must apply the law and all appropriate legal principles. If then satisfied that the claim or defence
has been established according to the appropriate onus of proof he must give judgment
according to law unless he has the opinion that it will be unjust to give such judgment.
Ratio:
Homologation
Homologation
 CCP, art 528
o Turning an agreement between the parties into a judgment so that it can be enforced
like a judgment
 General test: legality (cf SH c STL, which are proceedings under the Divorce Act)
 Skips adjudicative proceedings altogether
 This is unusual, special to QC (and maybe NB as well)
 Ordinarily, the test for homologation is: is this agreement valid?
o But in the case we read (SH v SL) there was an argument about whether it was valid
 Was there fraud?
 Was it an agreement in principle? Or whether it was a final agreement?
 Unique to QC, although see Ontario R 49.09(a) for settlements made under the offer to settle
rules
 Possibly other ways to cobble together an analogous order outside QC, but will generally require
an underlying proceeding to be instituted
o Rule 76 proceedings, culminating in consent order under R 76.05
 Marika looked and looked and looked, all she could find was rule 76
o Consent orders in BC
S.H. c. S.T.L. et al, 2008 QCCS 2853
Facts: Divorce – Madame H wants to confirm an agreement from a settlement conference and
declare a divorce. Monsieur L claims there was no agreement, only a draft agreement that
wasn’t final. If the Court declares there was an agreement, he will invoke vice of consent.
There’s a lot of money at stake here – parties are rich. Both parties were acting in accordance
with the agreement until Monsieur discovered that part of their agreement, in which Madame
would transfer certain shares to him, would cost him $75k-$90k in tax (presumably capital
gains).
Issue(s):
1) Did the document signed in the settlement conference constitute a transaction?
2) Did this document constitute an agreement?
3) If yes, is this agreement null for vice of consent?
4) Can this court confirm the agreement and pronounce a divorce?
Held: 1) No, 2) Yes, 3) No, 4) No
Reasoning:
1. This document is not a transaction
 A transaction is defined in 2631 CCQ (not CCP!) as “a contract by which the parties
prevent a future contestation, put an end to a lawsuit or settle difficulties arising in the
execution of a judgment, by way of mutual concessions or reservations”
 However in a divorce, the court must pronounce divorce and make sure that the terms
of the agreement aren’t against public order
165

There’s nothing illegal or against public order about transactions – but it would be
against public order for the court to accept them without its own inquiry into the terms
 Transactions have the authority of a final judgment (2633 CCQ)
2. This document is an agreement
 There was an exchange of consents on all the points remaining in dispute between the
parties
 The document was signed by both parties and their lawyers, it was in fact an agreement,
the fact that the parties both began to execute it shows the agreement was real,
Monsieur was willing to conform to it until he realized it would cost him big in the taxes
accompanying the stock transfers, these agreements aren’t a priori against public order,
and these types of agreement deserve consideration from the courts
3. It is not null for vice of consent
 This document was negotiated over two days in settlement conference
 Monsieur learned the financial impact 3 weeks later
 No one asked Madame directly if she had found a job or what her income was
 The circumstances around the signing:
o There was no power imbalance, both parties were represented, no discussions
occurred outside the settlement environment, it was presided over by a judge
o Nothing suggests the parties were forced to sign against their wills, indeed their
lawyers also signed
o The length/duration of the conference is not a reason to annul – the parties
were free to leave at any time and the judge didn’t force them to negotiate long
hours
o Finally, parties ratified the agreement by their later behaviour
 Financial impact:
o Monsieur would have to pay $75k-$90k in tax in the share transfer haha
o He is claiming error, that had he known that, he wouldn’t have signed
o He had an accountant and a tax expert for the first day of negotiations – he
could have brought them back the next day
o If this was an error, it was an inexcusable error (1400 CCQ) and doesn’t vitiate
consent
 The non-declaration of income by Madame:
o Monsieur claims if he knew Madame had a new job, he wouldn’t have signed
o Madame should have declared that she had a new job but Monsieur hasn’t
proved that he wouldn’t have signed if he’d known – this was a minor element
with respect to all the concessions and claims made in the process
4. The court can’t confirm the agreement immediately
 First of all, the document isn’t complete – some items aren’t listed, questions like
indexation of the pension alimentaire aren’t answered, it doesn’t address the share
transfer, etc – this makes it difficult for the court to enforce
 More importantly, the Divorce Act requires the judge to verify that the agreement is just
and appropriate in the circumstances – can’t do this with this incomplete agreement
 Furthermore the Court of Appeal suggests that this evaluation should be done in one
proceeding before the trial judge
 This action should have gone before the trial judge to determine whether the
agreement is valid according to contract law, then whether it respected the Divorce Act
in substance
166
Ratio: 1) Transactions don’t apply in divorce cases, 2) Evaluations of the validity of an agreement
and of whether it respects the Divorce Act should be done in one hearing by the trial judge
Legislation/Rules
1. ALI/UNIDROIT Principle 15
2. CCP arts 51-53 [abuse of the court powers – dismiss or strike], 158(case management), 167-171
[168=motion to dismiss; 169=strike immaterial allegations], 180 (default judgment), 209, 213, 217,
527-528
3. ON Rules of Civil Procedure, RR. 2.1(6), 14.10, 19 to 24 [19-default; 21.01(b)= ; ], 25.11, 48.14, 49.09,
76 (esp. 76.12)
4. BC Supreme Court Civil Rules, BC Reg. 168/2009, RR. 3-8, 9-4 to 9-8
Costs (1) – General Policy, class 22
Costs
Class notes:
What should the default rule be?
 User pays
o Impedes access to justice (actually, this argument can be made on both sides)
o No disincentive for frivolous law suits
o But this is the default rule in the USA: “Since litigation is at best uncertain one should
not be penalized for merely defending or prosecuting a law suit, and. . . the poor might
be unjustly discouraged from instituting actions to vindicate their rights if the penalty
for losing included the fees of their opponents counsel”
 Fleischman
o Remember: 40% of cases are overturned on appeal. Litigation is uncertain.
o Royal Lepage case – moved by words “we can’t dissuade “tout plaideur”. . .
 Basically: our law depends on very brave people bringing cases and asking the
court to move the law forward
 Alternative Default Rule: Costs Indemnity Rule
o Australia law reform document goes over policy discussion
o This rule is: let’s shift some or all of the costs to the other party
o The Canadian practice in awarding costs has been characterized as an attempt to
balance two conflicting principles. . .
 MM Orkin
o Generally in Canada, some of the costs are shifted. Not all of the costs. Just what is
reasonable. (Unless we are dealing with bad conduct)
 Partial indemnity via costs
 But there are real policy decisions at either end of this debate.
Canada?
 Most jurisdictions in Canada adhere to some variation of a costs indemnity rule
 But there is much variation
 Art 477 existing CCP
o Loser pays costs unless court orders otherwise
 New art 340
o 339-342 – need to be aware of these
o 340: loser pays, BUT para 2: in family matters, it is USER PAY
167


Rule 57
o Loser pays
ALI/UNIDROIT Principle 25
o Loser pays
Against whom?
 Losing party
 Successful party
o Art 341 – if successful party did not properly observe proportionality, or abuse of
procedure
o Rule 57.012
 Even the party’s lawyer! (will discuss this Tuesday)
What constitutes a cost?
 Court costs and filing fees, disbursements for service, indemnity for witnesses, registration costs
 Judicial costs, ordinary costs, partial indemnity, party and party costs
o =costs other than your lawyer fees
o Fees for filing documents, hearing fees, etc
 Have to pay for witnesses to come testify. Register things. File things.
o Some lawyers call these ‘disbursements’
o Jukier uses term judicial costs
 Within judicial costs are expert fees
 Lawyers’ professional fees
 Judicial vs extra-judicial; partial vs substantial indemnity, other terms
What costs do you get in Canada?
 No one answer
 Quebec:
o Note difference in current vs proposed system in new Code
o Art 480: party entitled to costs prepares a bill in accordance with the tariffs in force
 QC has a tariff system. Losing party has to pay the winning party the costs based
on that tariff
 Tariff currently includes judicial costs and a portion of extrajudicial costs
o New code: Huge change in policy (though not a huge change in outcome)
 Cost shifting rule is limited to judicial costs. No cost indemnity for lawyers fees.
 Art 340: legal costs owed to party who is successful
 339 defines legal costs: court costs and fees, disbursements for printing,
professional fees for service (bailiff fees), witness indemnities, expert fees… NO
lawyers fees
 Unless, under 342: there is a behavioural issue for which we want someone to
be punished
o Don’t underestimate amount of experts fees!
o Churchill Falls case: 65 year k btwn hydro QC and Churchill falls. Fixed price k. hydro QC
buying power from NL for v low prices and reselling for 36X that amount. Churchill Falls
lost case, so had to pay costs. Jukier shocked when, in judgment she sees. One of the
expert reports cost 1,000,000. The other 143,000.
 Ontario: very different from qc
168
o

S 131 Courts of Justice Act – costs of proceeding are in the discretion of the court
 But Rule 57 talks about factors in the exercise of discretion.
 Discretionary but principled
o General principle (as stated in Ritchie) is NOT one of full indemnity
o In neither QC nor Ontario are full costs given.
Several years ago (may 2004): barreau de mtl did extensive report on costs. – can google this
o This report v critical of how costs done in qc. Because what it said was, at the end of the
day, ‘les tariffs…..’ only allow recovery of about 5% of lawyers’ fees
Tariffs:
 Classified by amount of claim
o In QC; for every demand letter, you get $25
o For a judgment decided - $1000
o This is why tariffs criticized in QC – ridiculously low amount
o Tariffs not updated since 1976
o Barreau of montreal very critical. Advocated updating tariffs. Legislature listened and
got rid of tariffs, but now there is no allowance for lawyers’ fees at all!
Tools for Courts
 Discretionary versus tariff system
 Ontario: ss 131 Courts of Justice Act + Rule 57 (discretion plus guidelines)
o In Ontario: no tariff
o Used to be a grid in ON. What’s the difference between a grid and a tariff. Tariff is flat
amount. Grid is a range.
o But general rule in ON is partial indemnity. Although they CAN grant full fees, they
generally don’t.
 In QC: used to be Tariff
 BC: costs based not the amount of the case, but the difficulty of the case that matters.
 Wide variety of ways to think about costs
 Huge strategic component: where do you want to sue? If you think you’re going to win, ON. If
you think you might lose, QC.
o Sometimes no choice, but when there is, costs are part of the strategy.
 There is such a discrepancy, sometimes one jurisdiction won’t even recognize judgment from
another jurisdiction
o MacKinnon case
o Jukier: weird that US judgment in Beals is enforced in Canada, but Ontario judgment not
enforced in QC. Something disconcerting about this.
Costs as a policy device
 When can you get higher costs?
 Specific provisions (eg currently in QC ss 342
o Largest tariff is for a case of 50,000 or more. But if your case is more than 100,000, you
will get an additional 1%.
o S 15: if “important case”
 What the heck is an important case?
 Royal Lepage case
 It only applies “dans les affaire d’interet public et dans les affaires civile
complexe”
169





So it applied in Churchill falls case. So in addition to 100000 in expert
fees, extra-judicial fees of $250,000.
 Note how inconsistent this is with other cases
In Ontario, rule 57. Some of the criteria on which an oN court will grant costs:
o 57.01: in addition to result, court can consider:
 Amount claimed
 Apportionment of liability
 Complexity of proceeding
 Importance of issue
 Conduct of parties
 Any other matter relevant to question fo costs
o How do courts do this? Not easy, and that’s why we have a LOT of appeals on costs in
ON.
o Ontario has specific rules as well. One such rule has to do with offers to settle.
 Doesn’t exist explicitly in QC
 See rule 49.10 Ontario and BC double costs rule
 Look at 49.10 carefully
 Partial indemnity u to the offer, full indemnity after the offer
 BC has an interesting rule – JD and Chandra
 Plaintiff offered to settle for 200,000. Court gave judgment for the
plaintiff of 500,000. BC rule is regular costs up to offer, and DOUBLE
costs after the offer. That is really punitive.
Inappropriate procedural behaviour (see existing art 54.4 CCP, new articles 341, 342 and 54
CCP, rule 57.01(1)(e)(f)
o Three different types of bad behaviour (and we must understand the difference)
o 1. Bad behaviour in the substantive breach that is at issue in the trial
 Eg. Unjust dismissal. The method in which you are dismissed is really really bad.
What method in law protects that? PUNITIVE damages. NOT costs.
 Biel case stated this
o 2. Instituting an action abusively, vexatiously, only to irk, harm, bother, destroy the
other party
 Motion to dismiss.
o 3. Growing notion of inappropriate procedural behaviour: not executing the procedural
mechanisms in a case like a reasonable person.
 This is one of the things they try to argue in Royal Lepage.
 This is the big news wrt costs
 Factor e and f in rule 57.01 – conduct of the party
Two major sticks that have been introduced recently. One is about offers to settle. The other is
about bad behaviour.
Once upon a time, only way to get lawyers fees was to sue for damages
o Pretty rarely successful, unless the person sued in bad faith
o QC: arts 51 ff – articlces we saw earlier in terms of abuse
 Regardless of intent – what case did they overrule?
 Suburu and acadia?
o As of 2009, legislator said they would open the door to fees
 Oasis case
 Trademark infringement case
170

o
25,000 in punitive damages and 100,000 in lawyers’ fees
 This kind fo thing so new. This is 2010 decision.
Rule 341: successful party
 Brand new provisions
 Why do we need 342, fi we have 51ff?
 I didn’t hear the answer. Damnit. Should have b
 Things that are less than abuse under 51 will still be able to be sanctioned under
342
 Final point: if successful party can be seen as liable for costs, how far can that
go? Nothing about settlement offers in existing provisions.
Australian Law Reform Commission, “Costs Shifting — who pays for litigation”, (ALRC
Report 75, October 1995) (excerpt)




Everyone agrees cost is a critical element of access to justice.
The problems of cost, delay and complexity are related.
Cost orders may be one way to influence effectiveness of courts
The Commission recommends that federal courts have the power to award costs and to
determine by whom and to what extent costs are to be paid. (Recommendation 1)
 Costs should be awarded according to rules, not according to judicial discretion. Rules should
specific presumptions about costs, and exceptions to presumptions. Rules should reduce
costs of litigation, reduce disputes about costs, be easy to understand.
 The best way to control costs is through case management. Costs allocation should
complement this, not replace it.
Current Cost Allocation Rules
 Cost indemnity rule=basic rule that the losing party will pay the reasonable costs of the
winning party in a civil litigation claim.
 There are some exceptions: if the litigation is a public interest case, if a costs order means one
party can’t properly present their case
 There may be cost caps or other rules, and unmeritorious or vexatious claims are almost
always punished with costs
Reasons for the rule, and Effects
 Compensates successful litigants;
o Effects: it does to this to some extent
 allows those who can’t afford to litigate to still bring claims;
o Only does this for certain kinds of claims, especially those that can be taken on
contingency against parties who can surely pay, like insurance companies.
Doesn’t always help. But still probably reduces strain on Legal Aid.
 deters vexatious or frivolous litigation
o Hard to know how effective it is, but it seems lots of people still bring vexatious
claims, so probably an inefficient means of combatting this. Case management
would be a better tool.
o Furthermore, this rule may actually deter MERITORIOUS claims, especially where
the consequences of having to pay costs would be disastrous to the claimants.
 encourages settlement;
o Costs orders are rarely the determining factor here. American studies have
actually shown that settlement is LESS likely under cost indemnity rule than
under the rule that parties bear their own costs.
o Costs orders appear to not be a factor in whether or not parties will use ADR.
 deters delay or misconduct
171
Apparently the costs indemnity rule actually increases the cost of litigation bc it
encourages more expenditures on both sides.
Alternatives to the Rule
 Parties bearing their own cost
o Good because it discourages over-spending
o Bad, because it does nothing to help parties who can’t afford a claim
 One-way cost shifting
o Only one party (usually the plaintiff) can recover costs if successful.
 Costs as part of damage award
Conclusions
 Best starting point is that the unsuccessful party should pay reasonable costs of
successful party.
 Exceptions:
o Disciplinary and case management costs orders
o Material adverse effect on a party’s ability to litigate or negotiate
o Public interest cost orders
 There should be certainty about costs – need to follow rules.
 Parties should bear their own costs at tribunals such as small claim tribunal.
 Losing parties will mostly have to pay costs on appeal as well, subject to some
restrictions.
o
Walker v. Ritchie, 2006 SCC 45 (excerpt)
Facts: In a personal injury suit concerning a motor vehicle accident, counsel for the poor
plaintiffs carried the litigation in the face of the defendants' denial of liability through its fouryear duration without remuneration. During the litigation, the plaintiffs had issued an offer to
settle pursuant to Rule 49 of the Ontario Rules of Civil Procedure, but the defendants had
rejected the offer. At trial, the defendants were found liable. As the plaintiffs' award exceeded
their Rule 49 offer, they were entitled to partial indemnity costs for the litigation up to the date of
service of the offer and substantial indemnity costs from that point onward. At issue is whether
the plaintiffs' costs award, payable by the unsuccessful defendants, should be increased to take
into account the risk of non-payment to the plaintiffs' counsel.
Judicial History: On the basis of the risk of non-payment to the plaintiffs' counsel and of the
result achieved, the trial judge held it was appropriate to award a premium of $192,600. The
Ontario Court of Appeal upheld the risk premium awarded by the trial judge.
Issue(s): Should the plaintiff’s cost award be increased to take into account the risk of nonpayment to the plaintiff’s counsel?
Held: No. The appeal should be allowed.
Legal Reasoning- Rothstein J :
 The determination of whether risk of non-payment to plaintiff's counsel was an
appropriate consideration requires an examination of the relevant Ontario legislative
scheme governing the fixation of costs, which is contained in the Rules of Civil
Procedure.
 Rule 57.01(1) guides a court's determination of the quantum of a costs award. While
indemnification is one of the cornerstones of a costs award, the scheme in place at the
relevant time was not one of full indemnity. Rather, the quantum a party would receive as
an indemnity was governed by the factors set out in Rule 57.01(1) and the Tariff.
172

Risk of non-payment to plaintiff's counsel is not an enumerated factor under that rule.
While the words "any other matter relevant to the question of costs" in clause (i) of Rule
57.01(1) are broad, they are not unlimited.
 Unsuccessful defendants should expect to pay similar amounts by way of costs across
similar pieces of litigation involving similar conduct and counsel, regardless of what
arrangements the particular plaintiff may have concluded with counsel.
 Requiring unsuccessful defendants to pay a premium to the plaintiffs in personal injury
cases is not compelled on the theory of promoting access to justice.
Ratio: The Rules of Procedure do not allow an increase in a cost award to take into account the
risk of non-payment to plaintiff’s counsel.
Elevated/Special Costs
Royal Lepage Inc. v. 109650 Canada Ltd., 2007 QCCA 915
Facts: Appeal of a superior court judgment against RL who was ordered to pay costs ($54k) to 109650
for litigating a frivolous suit amounting to abuse of the law.
Issue(s): Did the trial judge err in finding abuse and awarding costs?
Held: Yes, there was no proof of abuse to merit awarding costs.
Reasoning: Bad faith, recklessness and the failure to drop an action when you’ve realized you’re in
the wrong, can all amount to an abuse (of process?) leading to extrajudicial costs being awarded
against you. This is done to recognize one party as a victim to abusive litigation (see CPC art. 75.2 and
524).
 Two kinds of abuse: “abus de droit sur le fond du litige” (happens at the moment of the
contractual or extra-contractual fault) and “abus du droit d’ester en justice” (a fault
committed during judicial recourse). The latter includes multiplying procedures in bad faith,
or bringing forth an action it knows has no founding, etc. Should be reserved for cases of
malice/bad faith or gross error amounting to fraud (recklessness).
 Recklessness happens when a reasonable and prudent person, with the knowledge they had
at the time of instituting an action or procedure should know there is no founding
 The facts of this case do not support a finding of abuse.
Ratio: Abuse leading to extrajudicial cost awards requires proof of bad faith or recklessness.
Davies v. Clarington (Municipality), 2009 ONCA 722
Facts: There was a train derailment in Bowmanville in 2000. Blue Circle Inc [B], one of several
defendants, delivered an offer consenting to a dismissal of the claim and all counterclaims and crossclaims, without costs. The offer elapsed, but they made a second offer in 2005 . The 2005 offer to settle
was never revoked and was open for acceptance at the time of trial. During trial (on the issue of liability
for the train derailment), many defendants decided to settle with the plaintiff (collectively referred to as
the "settling defendants"). B Inc. did NOT participate in the settlement. As a result, the trial judge had to
determine B’s liability, if any, for damages arising from the derailment. The trial judge dismissed the
action against B. B then sought costs against the settling defendants on a partial indemnity scale from
the commencement of the litigation to the 2005 offer and on a substantial indemnity basis thereafter.
[note: Partial indemnity costs award = you get back about half of the total cost of a lawyer.
Substantial/full indemnity costs award = costs awarded in an amount that is 1.5 times what would
otherwise be awarded (you get back almost all your legal expenses)]
Judicial History: At Trial, Full indemnity costs were ordered for the period following the delivery of B
Inc.'s offer to settle. The trial judge ordered the settling defendants to pay B’s costs in the amount of
$509,452.18. The settling defendants appealed.
173
Issue(s): 1.Did the trial judge err in relying on the 2005 settlement offer as justification for a full
indemnity award? 2.Were the trial judge’s costs awarded "fair and reasonable"?
Held: 1.Yes, B cannot recover a full indemnity award, only partial. 2. No, the CA brought the amount
down to 300k
Reasoning:
1.The general source of judicial discretion to award costs is found under s. 131 of the Courts of Justice
Act. Full indemnity awards are warranted in only two circumstances:
i) the operation of an offer to settle under rule 49.10 CCP
ii) Sanction-worthy behaviour by the losing party.

Rule 49.10 States “Where an offer to settle,
a) is made by a defendant at least seven days before the commencement of the hearing;
b) is not withdrawn and does not expire before the commencement of the hearing;
c) is not accepted by the plaintiff, and the plaintiff obtains a judgment as favourable as or less
favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs
to the date the offer was served and the defendant is entitled to partial indemnity costs from
that date, unless the court orders otherwise”
Rule 49 was not applicable to B Inc.'s offer to settle.

To constitute sanction worthy behavior, there needs to be specific acts that clearly indicate an
abuse of process + reprehensible, scandalous or outrageous conduct on the part of one of the
parties
 The settling defendants did not conduct themselves in a reprehensible or egregious fashion. The
settling defendants were entitled to advance their position and were not required to settle. They did
nothing to abuse the process of the court. Malicious counter-productive conduct could warrant sanction
but Hardfought litigation that turns out to have been misguided does not warrant sanction.
The language of rules 49.13 and 57.01 [ Ontario CCP] give the judge discretion with respect to costs, and
invite the judge exercising discretion to take into account any offer to settle made in writing. This must
be done on a principled basis. The judicial discretion under rules 49.13 and 57.01 is not so broad as to
permit a fundamental change to the law that governs the award of full indemnity costs. In applying the
costs grid, the judge must consider in whether in all the circumstances the result is fair and reasonable
and inline with the expectations of the parties.
2. Several principles that must be considered when awarding costs:
Reasonableness The judge awarding costs should reflect on what the court views as a reasonable
amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs
of the successful litigant
Consistency treat like cases alike
Complexity of proceeding
Key principle is reasonableness; the amount of costs that an unsuccessful party could reasonably
expect to pay in relation to the step in the proceeding for which costs are being fixed.
Here the costs award was not fair and reasonable. The settling defendants would not have expected
that they would be faced with an award of this magnitude, particularly in light of B Inc.'s limited
involvement in the proceedings. The trial judge awarded Blue Circle an amount in legal fees that was
almost double those that were received by the plaintiffs.
174
Ratio: 1.Full indemnity awards [sometimes referred to as elevated costs] are warranted where
substantial indemnity costs are explicitly authorized under 49.10 CCP OR where the loosing party acts in
a reprehensible or egregious fashion and abuses the court process
2. In determining fair costs, the parties reasonable expectations is the most important factor
SLAPPs
Industries Lassonde inc. v. Oasis d'Olivia inc. 2010 QCCS 3901 (excerpt)
Facts: IL seeks an injunction against OO to stop it using its trademark “Olivia’s Oasis with
design,” claiming OO is infringing IL’s trademark “Oasis.” IL also seeks damages and any profits
generated from OO’s use of its own trademark. IL uses its trademark to market food of some
sort (not specified) and OO uses its trademark to market beauty products. The action is
obviously bullshit. IL already lost an action to prevent trademarking of OO’s name.
Issue(s):
1) Does OO’s trademark infringe IL’s?
2) Is IL’s action “frivolous, vexatious, prejudicial or an attempt to defeat the ends of
justice” according to arts. 54.1 to 54.6 CCP, requiring damages for OO?
Held: 1) No, 2) Yes – IL ordered to pay $100k in extra-judicial costs plus $25k in punitive
damages, OO’s right to claim further damages reserved, and legal costs
Reasoning:
(The part dealing with the trademark issue is omitted, except that IL loses, and loses baaaaad)
OO’s claim for sanctions against IL for improper use of procedure
 OO seeks payment of all legal costs it incurred and reserves its right to claim further
damages
 Based on An Act to… prevent improper use of the courts and promote freedom of
expression and citizen participation in public debate – added arts. 54.1 to 54.6 to CCP
 OO claims IL engaged in manifestly unfounded, frivolous, vexatious proceedings,
excessive and unreasonable in the circumstances, in an attempt to bully OO and prevent
it from the lawful exercise of its rights to use its trademark and engage in business
 IL claims there was a serious issue to litigate, good faith, an obligation to protect their
trademark, and proceedings were conducted in a reasonable manner
 True that the action wasn’t encumbered by unnecessary or extraneous proceedings, and
that plaintiffs have obligation to protect their trademark
 But IL’s action was preceded by a menacing letter with 10 demands, including $20k in
punitive damages, creating a very serious threat to OO’s survival
 It is obvious IL pursued a claim they knew or should have known would not succeed
 Evidence of IL’s bad faith or willful blindness: they referred to 3 court judgments they
claim recognized the “Oasis” mark – 2 were by consent, 1 a judgment by default AND
they failed to disclose the one contested judgment that is actually a source of judicial
authority, and which they lost!
 TL;DR: they had absolutely no case, and they knew that
 IL evidently expected that, given the threat to OO’s fledgling business, the projected
cost of proceedings, the obvious disparity in powers and resources of parties, that OO
would give in and change its name or sign a licensing agreement with IL, as others have
in the past
 “Such menacing and abusive conduct cannot be condoned with impunity”
 54.4 CCP allows for damages, including extrajudicial legal fees and punitive damages
Ratio: Basically just how to apply 54.1-54.6 CCP and courts don’t like conduct like IL’s.
175
Offers to Settle
Kalish v. Rosenbaum, 2010 ONSC 3189
Facts: This case concerns an action for solicitor’s negligence. At a very early stage of the litigation,
before any significant expenses had been incurred, the lawyers for the parties met and attempted to
settle the claim. On May 31, 2007, a formal offer to settle was made by the Plaintiffs- The offer
remained open until the commencement of trial. The defendant solicitor believed “there was no chance
that any liability would attach” and thus refused to contribute “one penny” to settlement. The judge
found the defendant’s conduct amounted to a breach of contract and a breach of duty of care owed to
plaintiff. Judgment was rendered in favor of the Plaintiffs. Once an agreement was reached on the
damages issue, both the Plaintiffs and Defendants filed written costs submissions.
Issue(s): 1. Are the plaintiffs entitled to indemnity cost? (What is the proper approach to fixing costs)
2.Was the total amount of costs claimed by the plaintiffs fair and reasonable?
Held: 1.Plaintiffs are entitled to partial indemnity costs up until the date they made a formal offer to
settle, and to substantial indemnity costs thereafter 2. Yes
Reasoning: The proper approach to fixing costs is set out in Boucher v. Public Accountants Council:
 Must have regard to the factors set out in rule 57.01 of the CCP
 Costs award must be fair and reasonable + take into account reasonable expectations of the
parties
The plaintiffs offer to settle is a factor under Rule 57.01 This is further expanded upon by Rule 49.10(1):
“Where an offer to settle,
(a) is made by a plaintiff at least seven days before the commencement of the hearing;
(b) is not withdrawn and does not expire before the commencement of the hearing; and
(c) is not accepted by the defendant, and the plaintiff obtains a judgment as favourable as or more
favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the
date the offer to settle was served and substantial indemnity costs from that date, unless the court
orders otherwise.”
The presumptive effect of Rule 49.10(1) is that the plaintiffs are entitled to partial indemnity costs up
to the date of the offer and to substantial indemnity costs thereafter.  Here, a formal offer to settle
was made by the Plaintiffs, in writing. The Plaintiffs’ offer to settle falls within Rule 49.10 as the result at
trial was substantially more favourable to the Plaintiffs than their offer to settle.
The Defendant submits two bases for departing from the presumptive effect of Rule 49.10(1):
1. “it was not unreasonable to proceed to trial” as there were arguable issues raised by the defense in
relation to the damages claimed by the Plaintiff
 However, the good faith or reasonableness of a Defendant’s decision to proceed to trial is not a
significant factor in determining whether to depart from the presumptive effect of Rule 49.10. The
Defendant had no real defence to the alleged failure to meet the standard of practice.
2.The defendants also argue that the action ought to have been commenced under simplified procedure
 But Plaintiffs were awarded $60,617.71 which exceeded the maximum amount permitted under
simplified procedure.
Ultimately, no proper basis has been advanced for departing from the presumptive effect of rule
49.10(1).Plaintiffs are entitled to partial indemnity costs up until May 31, 2007 (the date the formal
offer to settle was made by the Plaintiffs) and to substantial indemnity costs thereafter
176
Factors under Rule 57.01 that suggest the amount of costs claimed by plaintiff was fair and reasonable:
 The factual and legal complexity of the matter, both in relation to liability and damages
 Ms. Dhirani, the lawyer who performed the bulk of the work on the case, was a junior and thus
saved the clients substantial fees)
 The Defendant’s refusal to admit liability when he had no real defence, thus adding
unnecessarily to the length of the trial and to the amount of preparation required by counsel
The defendant must have foreseen substantial exposure to costs, given its intransigent response to the
Plaintiffs’ very reasonable offer to settle
Ratio: (1)The presumptive effect of Rule 49.10(1) is that the plaintiffs are entitled to partial indemnity
costs up to the date of an offer to settle and to substantial indemnity costs thereafter. The good faith of
a Defendant’s decision to proceed to trial is not a significant factor in determining whether to depart
from the presumptive effect of Rule 49.10. (2) Costs award must be fair and reasonable + take into
account reasonable expectations of the parties.
J.D. v. Chandra, 2014 BCSC 1272
Facts: JD was awarded $500k for two accidents. She argues she should be awarded her entire
costs of the action, but double costs for the conduct of the trial because she offered a much
lower settlement ($200k) before the trial that the defendants rejected. Defendants argue she
offered the settlement too close to the trial date and judicial feedback they received at a
settlement conference justified their refusal. They also argue JD should be deprived of costs
relating to one sub-issue, which she lost.
Issue(s): 1) Should JD’s offer to settle be considered when awarding costs? 2) Should the court
apportion costs based on JD’s failure to prove one sub-issue?
Held: 1) Yes 2) No
Reasoning:
Offer to Settle
 Rule 9-1 of the BC Rules permits the court to take into account an offer to settle when
awarding costs
 The cost implications of an offer can depend on whether it’s made by plaintiff or
defendant but the idea is the same: to reward parties for making a reasonable effort to
settle
o Typically, if plaintiff makes an offer, courts award her double costs of the
proceeding after the date the offer was made
o If defendant makes the offer, typically this deprives the plaintiff of costs and
gives the defendant his costs, even if the plaintiff gets a trial judgment that
normally would entitle her to costs
 Considerations when taking an offer to settle into account (Rule 9-1):
o 1) Whether the offer ought reasonably to be accepted, 2) relationship between
terms of settlement and final judgment, 3) relative financial circumstances of
parties, 4) “any other factor the court considers appropriate”
Application:
 2) JD substantially bettered her position at trial, 3) was a student who couldn’t afford to
ignore risks of trial compared to defendants (represented by insurance company)
 1) Whether the offer ought reasonably to be accepted:
o Defendants say she offered it too late, about two days before the trial
177
o
The shortness of time should be considered but JD can point to cases where this
same insurance company has offered settlements to plaintiffs on the eve of a
trial
o What a reasonable time frame is “is largely driven and governed by context”
 The defendants had previously offered settlements, nothing new or
complicated about this offer, had experienced counsel
o Court rejects defendant’s argument that their refusal of the offer was
reasonable because the presiding judge at a settlement conference had
suggested the defendants could win on one issue
 1) Counsel’s account of what the settlement judge said can’t be
admissible – no record, context, 2) settlement judge doesn’t predict
outcome of a trial, 3) limited opportunity for a settlement judge to learn
the facts/evidence, 4) different factors at play in settlement conference
than trial, e.g. JD’s reluctance to go to court, 5) strong policy reasons
not to admit judge’s comments
Divided Success (Apportionment)
 Rule 14-1(15) of BC Rules
 JD didn’t succeed in proving one sub-issue of a broader issue, but she did succeed in
proving the broader issue (loss of earning capacity)
 BCCA test for apportionment of costs is:
o 1) there are separate and discrete issues on which the ultimately unsuccessful
party succeeded at trial, 2) the judge can identify the time spent on those
issues, 3) apportionment would be just
Application
 Rejected because:
o Trials and legal arguments are complex and we don’t want unsuccessful litigants
combing through all the evidence/arguments looking for areas to win on costs
o Would unduly complicate and extend expense and turmoil of litigation, force
parties to re-litigate over costs
o Against interests of proportionality and access to justice
Ratio: 1) “The normal rule is that costs go to the successful party at trial, unless there is good
reason otherwise,” 2) Offers to settle are considered in awarding costs, 3) Apportionment of
costs is rare
Legislation/Principles/Rules
1. ALI/UNIDROIT Principle 25
2. CCP, arts. 339-344 + Tariff (p. 1181), 51-54 (abusive procedure)
3. ON Rules of Civil Procedure, RR. 19 (default judgment), 23 (discontinuance by plaintiff), 49.10 (costs
consequences of offer to settle), 57.01 (factors to consider in awarding costs)
4. ON Courts of Justice Act, s. 131 (discretion to award costs)
5. BC Supreme Court Civil Rules, RR. 9-1 (esp. subrules (4)-(7)), 14-1, Appendix B (esp. Tariff)
For Discussion
McKinnon v. Polisuk, 2009 QCCS 5778 (esp. para. 11ff)
Facts:Decision was rendered outside Quebec. Litigation lasted 12 years. They want the judgement
enforced in Quebec.
178

Article 170 of the Loi d'application de la réforme du Code civil states that the articles in
the New Civil Code of Quebec, concerning recognition and execution of foreign judgments
do not apply to cases started before the Civil Code comes into effect.
 The court action began in 1987, therefore the New Civil Code of Quebec does not apply.
 Costs were to be determined pursuant to [11] of the judgement by Sharpe J.
Quoted here:

As of that date, while liability for the costs was determined by Sharpe J., the exact
quantum of the costs was to be determined as follows :

11.1 "The Defendants are to provide the Plaintiff and Polisuk with detailed bills
and costs and background documentation to justify the claims they make;

11.2 I will receive written submissions from the parties with respect to the quantum of
costs to be fixed;

11.3 I will afford the parties up to two full days for hearing oral submissions on the
question of the quantum of costs;"
Issue(s): Is an order for costs on solicitor – client basis for $1,050,000 plus 4 % interest a year since
April 4, 2002, in favor of each of two defendants, whose claims were dismissed, enforceable under
Quebec law? Held: No.
Reasoning:
 Attorney fees may be awarded as part of costs to the losing party.
 “Les honoraires extrajudiciaires ne peuvent être accordés à titre de dépens”
 Through exhaustive jurisprudential analysis and academic authorship, this point has been
repeatedly confirmed despite being absent in the code. Judges have established it is a
matter of public order.
 BUT, the court distinguishes the case at hand with the help of 180.1 CPC (before 1994)
 « Notwithstanding articles 178 to 180, the recognition and execution of a judgment
rendered outside Quebec shall be denied where, by reason of the subject matter, the
courts of Quebec have been vested with exclusive jurisdiction, under Quebec law, to hear
the demand or action which has given rise to the judgment or where, although the
judgment is based upon rules of foreign law, a rule of law is established in Quebec the
application of which is imperative. »
 Therefore as a result of application of 180.1 C.p.c. the judgment should not be recognized
and enforced.
 They flip public policy justification around and say why it should prohibit such an
exhaustive claim, even though it was ordered in Ontario.
Quoted here:
 [28]
As cited by Justice Marcelin in Cortas Cannings and Refrigerating Co v. Suidan Bros.
Inc., J.E. 99-827, Professor Glenn points out there may well be an argument against
recognizing decisions which are, by all accounts excessive in the amount of money
awarded.
 [29]
In that decision, Justice Marcelin rejected the application for recognition on the
basis that : « This amount is so disproportionate with amounts awarded in similar
situations in Canada and in Quebec that it could be said to be in non-conformity with
public order as understood in the international context. »
 [30]
Even recognizing that the present judgment sought to be enforced is from the
sister province of Ontario and not a court from outside of Canada, and taking into account
that normally there should be deference.
179
Ratio: Courts have a lot of discretion in determining costs when asked to enforce judgements from
cases in “foreign” jurisdictions.
Costs II - Exceptional Costs Orders, class 23
Class notes:
Exceptional Cost Orders
 Costs against a solicitor personally
 Interim or advance costs
 Costs in public interest cases, generally
 Security for costs (different than a costs order)
Costs against a solicitor personally
 Rules generally say loser pays costs. And maybe in certain circumstances successful parties. But
when lawyer?
 Sometimes provided for in procedural rules (see Rule 57.07 Ontario)
o “liability of lawyer for costs
o Question: is this all costs? Is it things the lawyer spent money on? Is it also lawyer’s
hourly rate?
 What happened if there is no special rule?
o Rule 57.07 is merely a legislative translation of a discretionary power courts have over
costs
o S 131 of ON Courts of Justice act says this
o Also, inherent jurisdiction
 Under what circumstances will such an award be made? Is the test the same when there is a
legislative provision and when there is not?
 Beardy v AG
o Should the lawyer have to pay for the expense of going to examine witnesses. Crown
says: this is completely useful
o Why go after lawyer? Other party was insolvent.
o What is the solicitor’s best defence?
 “I was just following the instructions of my client”
 Critics say costs against lawyer creates a conflict for the lawyer. Fundamental
duty to client, but if doing what client wants, may be liable for costs
 Conflict between duty to client and duty do administration of justice
 So, costs against lawyer EXCEPTIONAL, RARE, and must be connected to conduct
attributable to solicitor
 In Beardy, the solicitor was completely complicit.
o Should the lawyer have to be in bad faith in order to have a cost order against? This is
the issue raised in Beardy.
 Several years earlier in Young v Young – McLachlin J: “the basic principle on
which costs are awarded are as compensation for the successful party, not as
punishment for the barrister”…. But have ability to make such orders “to control
abuse of process”….”and that the lawyer acted in bad faith”
 Good faith always presumed
 Beardy says he is not in bad faith
 Crown says, you don’t have to have bad faith under Rule 57.07
180


So common law rule requires bad faith. Does 57.07 change common
law?
57.07 doesn’t require bad faith. Mere negligence standard.
Interim or Advance Costs Orders
 Has become important in recent years for allowing people access to the courts in allowing
people to argue an important case
 Remember one of the first lectures in this course: the cost of litigation
 What is an interim or advance costs order? Tollefson gives a good defn: opposing side pay
plaintiff’s costs in advance
o Okanagan case as eg
o Indian Band wants to make claim. Clearly does not have funds to go to SCC. How to fund
litigation? One way is to make interim cost order request. SO Crown is ordered to pay
legal costs in advance and regardless of how case pans out.
 Question is: what is wrong with this? Why are they controversial?
o Seems to be pre-judging the case
o Awarding costs at the beginning, instead of at the end
 When we know who won and how the parties acted
o This is nothing more than judicially-imposed legal aid
 Why are they ordered?
o Access to justice
o In cases of a severe resource imbalance (as is often the case in charter, public interest
cases), it helps mitigate imbalance of resources
 Under what circumstances will they be ordered?
o Okanagan test
Okanagan test
 Three-step test
 (1) Quality of litigant
o Must be impecunious.
 And also most not have another way of funding trial. Might be impecunious but
have another way of funding.
 TJ in Okanagan did not award advance cost bc he thought there might be
another way, eg conditional fee arrangement
 (2) Quality of case
o Concern about pre-judging
o So, needs to be prima facie meritorious
 So, there is some pre-judging happening here
 But we have no choice
 And we do it for injunctions all the time
 (3) Quality of the Circumstances
o Must have some sort of special nature. Must be special circumstances.
 Look at Major J’s dissenting opinion
 Historically, interim costs existed for very different kinds of cases.
o Family law where one spouse was suing the other for her share of the family patrimony.
o Estate claims
o This is kind of the type of circumstances that Major J wants to keep
181
o
o

But Lebel J does not agree. Thinks it can be extended to cases of public of importance.
“issues raised transcend the individual interests of the particular liti-gant, are of
public importance”
Is the caselaw consistent?
o A brief review of subsequent cases: how do Little Sisters II and R v Caron fit in?
o Mentioned in Tollefson article
o Little Sisters: LGBTQ porn being stopped at the border. Equality argument. SCC found
customs practices infringed s 2(b) and 15 of the Charter. That’s little sisters 1. Then
there is Little Sisters 2, because CBSA didn’t listen. LS had to go back to court to enforce
the rights the SCC told them they had. This time they asked for interim costs. First two
branches usually not a problem to meet (when at SCC level at any rate). Third step is the
tricky part. Lebel J: refuses advance costs. Why? “this is a small business corporation
engaged in litigation to gain the release of merchandise stopped at the border”. . . this is
about four books. “Courts should not seek on their own to bring an extensive legal aid
system into being”; “in this case there is no interest beyond that of the appellant”.
 Binnie J in dissent: no, this is not a fight about four books, it is a larger question
about the disproportionate seizure of GL materials…. Systemic, discriminatory,
etc
o R v Caron. Issue=whether every piece of legislation in AB had to be bilingual. Caron
prosecuted for minor traffic offence. In contesting, he says, “I don’t have to pay this
ticket because it is in English only”. Caron says he can’t afford to launch the appeal, asks
for advance costs. Problem: the judge hearing the case can’t award advance costs bc no
inherent jurisdiction. So AB Superior Court asked to do it. Can they give costs in a case
that is pleaded in Provincial court? That is interesting.
 Court visit of Friday the 20th: ppl heard an injunction. Injunction failed, so ppl
had to go back to Cour to QC.
ON application of the test, does Caron get it? Quality of litigant: yes. Quality of case:
prima facie right: yes. Quality of circumstances: yes
Binnie J consistent (dissenting in Caron).
Public Interest Costs generally
 Carter v AG Canada (2015 SCC)
o Costs worth 1,000,000
o Carter deals with post-judgment cost awards
 Interesting quote from Tollefson: “is there a bright line distinction between private and public
interest litigation in relation to costs”
o Wrt both advance and post-judgment cost orders
o Smith J at BCSC makes cost order. Says partial indemnity would be about $150,000, but
she gives 1,000,000. Why? Extraordinary, complex case. Requiring more funding. And a
case which should be granted FULL indemnity. On appeal: reversed. Decision. Cost order
stayed (art 355). SCC reinstates trial decision. And ends up giving higher costs. But in the
course of doing so, altered the test that had previously existed.
o Previously: higher cost award required public interest – case that “transcended interest
parties” etc (from Tollefson and Carter)
o Carter criticized this test: says we already have a test in Okanagan, why do we have this
separate test for post-judgment costs?
o Has to be tweaked to apply to post-judgment
182


Only reasonably and prudently incurred costs
Question: isn’t this true for advance costs too? How does this play out in
practice? How to deal with idea of incentivizing lots of spending through
awarding advance costs?
 Question: are Okanagan costs full indemnity? Or partial indemnity?
 Ans: not full indemnity (said in Hetu).
What about Hetu? Where does it fit?
 Q1: is this a public interest case? No. It is an unjust dismissal case.
 If it is not public interest case, what motivates the interim order?
 Employee takes Eer to admin tribunal. Gets an award in his favour with damages. Emp’er
doesn’t pay, and challenges the decision in judicial review. Superior court jurisdiction.
o “judicial guerrilla warfare”
 Is this inherently a terrible thing to do? No. But in this case, Dalphond J doesn’t think it is a
legitimate use of JR. It is being used to wear down Eee.
 On what basis is the award made?
o Art 46 – inherent jurisdiction
o Applies Okanagan
 Whoa. Disconnect?
o Side note: current code, art 51, or existing code art 54.1 (from 2009) – could kick out the
case for abusive conduct but this didn’t exist at time of Hetu
 Is Hetu getting interim costs? Bc no such thing as costs then for bad behaviour. At the time:
how could parties get extra-judicial costs? Only by suing for damages.
 No, he is getting interim damages. And getting through a completely different test
o Not advance costs, because if he loses he has to pay it back
 What is the Hetu test and how does it differ from Okanagan?
 Do we still need Hetu in QC?
o Jukier says no bc legislator has added art 54.1 (now art 51)
o Art 53(5)
 53(5) is advance costs
 54 is after the decision
Security for Costs
 Not as exceptional as public interest costs
 ON Rule 56
 CCP art 492, 364
 What is an order for security for costs and how does it differ from an interim costs order?
o Not supplied for purpose of party paying their lawyer
o Just to make sure the money is there so that an eventual cost order can be satisfied
 Against whom can an order be made?
o By D against P. why? If suretyship
o Plaintiff: but can also be P in counter claim, P in third party claim…
 So “defendant” may also be a plaintiff
o Bc penalty for not depositing security is just that you won’t get to prosecute your claim,
it is on plaintiff to …
 What is the rationale for an order for security for costs?
 In what circumstances can such an order be made?
183
o


Classic case: when the other party is not normally resident in the jurisdiction – concern
about enforcing costs order
o Cupcake case: Calif and QC had enforcement agreement, so no trouble to enforce order
(said Calif plaintiff). Second arg: We are rolling in money! Court said: you brought no
proof of that.
o See circumstances in Rule 56
Comes up most often in appeal cases
What interests need to be balanced?
o Judicial costs
Distinguish between impecunious and insufficient assets
Impecunious – good
Insufficient assets – not
What do you need in addition to being impecunious? Demonstrate that your case is not devoid of merit.
Need prima facie case.
Public Interest Costs
British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71
Facts:
 In 1999, members of the four respondent Bands began logging on Crown land in B.C. without
authorization under the Forest Practices Code of British Columbia Act. The Minister of Forests
served the Bands with stop-work orders under the Code, and commenced proceedings to enforce
the orders.
 The Bands claimed that they had aboriginal title to the lands in question and were entitled to log
them. They filed a notice of constitutional question challenging the Code as conflicting with their
constitutionally protected aboriginal rights.
 The Minister then applied to have the proceedings remitted to the trial list instead of being dealt
with in a summary manner. The Bands argued that the matter should not go to trial, because they
lacked the financial resources to fund a protracted and expensive trial.
 In the alternative, they argued that the court, in the exercise of its powers to attach conditions to a
discretionary order and to make orders as to costs, should order a trial only if it also ordered the
Crown to pay their legal fees and disbursements in advance and in any event of the cause.
 The B.C. Supreme Court held that the case should be remitted to the trial list and declined to
order the Minister to pay the Bands’ costs in advance of the trial. The Court of Appeal allowed
the Bands’ appeal. The decision to remit the matter of the Bands’ aboriginal rights or title to trial
was upheld. The court concluded, however, that although the Bands did not have a constitutional
right to legal fees funded by the provincial Crown the court did have a discretionary power to
order interim costs.
 It ordered the Crown to pay such legal costs of the Bands as ordered by the chambers judge from
time to time, subject to detailed terms that it imposed so as to encourage the parties to minimize
unnecessary steps in the dispute and to resolve as many issues as possible by negotiation.
Issue(s):
Majority Decision
(1) First, the nature of the court’s jurisdiction in British Columbia to grant costs on an interim basis and
the principles that govern its exercise
(2) Appellate review of the trial court’s discretion as to costs
Dissent
(1) At issue in this appeal is how trial courts should be guided in their award of interim costs.
184
(2) When are these advance costs appropriate?
(3) How much deference should appellate courts give to the trial judge’s discretion in the matter?
Held: The Court of Appeal’s decision to overturn the trial judge and grant interim costs to the Bands
should be upheld.
Reasoning:
The Court of Appeal’s decision to grant interim costs to the Bands should be upheld. The
discretionary power to award interim costs in appropriate cases has been recognized in Canada as a residual
power from Equity. Concerns about access to justice and the desirability of mitigating severe inequality
between litigants feature prominently in the rare cases where such costs are awarded. The power to order
interim costs is inherent in the nature of the equitable jurisdiction as to costs, in the exercise of which the
court may determine at its discretion when and by whom costs are to be paid.
****TEST FOR INTERIM COST ORDERS****
Several conditions must be present for an interim costs order to be granted.
1. the party seeking interim costs genuinely cannot afford to pay for the litigation, and no other
realistic option exists for bringing the issues to trial and without such an order, such that the party
would be deprived of the opportunity to proceed with the case;
2. the claimant must establish a prima facie case of sufficient merit to warrant pursuit;
3. and there must be special circumstances sufficient to satisfy the court that the case is within the
narrow class of cases where this extraordinary exercise of its powers is appropriate.
Public law cases, as a class, can be distinguished from ordinary civil disputes. They may be
viewed as a subcategory where the special circumstances that must be present to justify an award of interim
costs are related to the public importance of the questions at issue in the case.
It is for the trial court to determine in each instance whether a particular case, which might be
classified as special by its very nature as a public interest case, is special enough to rise to the level where
the unusual measure of ordering costs would be appropriate. The criteria that must be present to justify an
award of interim costs in this kind of case are as follows:; the claim to be adjudicated is prima
facie meritorious; and the issues raised transcend the individual interests of the particular litigant, are of
public importance, and have not been resolved in previous cases.
Each of these criteria is met in this case. The Bands are impecunious and cannot proceed to
trial without an order for interim costs. The case is of sufficient merit that it should go forward; the issues
sought to be raised at trial are of profound importance to the people of B.C., both aboriginal and
non-aboriginal, and their determination would be a major step towards settling the many unresolved
problems in the Crown-aboriginal relationship in that province. In short, the circumstances of this case are
indeed special, even extreme.
The conditions attached to the costs order by the Court of Appeal ensure that the parties will
be encouraged to resolve the matter through negotiation, which remains the ultimate route to achieving
reconciliation between aboriginal societies and the Crown, and also that there will be no temptation for the
Bands to drag out the process unnecessarily and to throw away costs paid by the Crown.
The Court of Appeal had sufficient grounds to review the exercise of discretion by the trial
court. Discretionary decisions are not completely insulated from review. An appellate court may and
should intervene where it finds that the trial judge has misdirected himself as to the applicable law or made
a palpable error in his assessment of the facts. Two errors in particular vitiate the chambers judge’s decision
and call for appellate intervention. First, he overemphasized the importance of avoiding any order that
involved prejudging the issues and erred when he concluded that his discretion did not extend so far as to
empower him to make the order requested. Second, his finding that a contingent fee arrangement might be
a viable alternative for funding the litigation does not appear to be supported by any evidence, and the
prospect of the Bands’ hiring counsel on a contingency basis seems unrealistic in the particular
circumstances of this case.
185
Ratio: When you’re dealing with exceptional cases, exceptional measures regarding costs can be
implemented.
Notes:
 Impecunious means poor. They keep using it, but it’s so pompous.
 The dissent (6-3) relied exclusively on the judicial discretion of trial court judges. That’s how
they avoided most of the analysis from the majority. They essentially disagree on the point of
reviewable error.
 Dissent also had a different test. Said advance costs were an exceptional private law remedy
basically rooted in the idea that husbands controlled family assets, but it was presumed those
family assets should be shared, so advance costs would be awarded in divorce cases.
Inappropriate to apply that kind of procedure to this kind of case. “special relationship” of the
parties.
 The test from this case was affirmed in the 2011 decision of Caron.
Chris Tollefson, “Costs in Public Interest Litigation Revisited”, (2011) 39 The Advocates’
Quarterly 197
Part 1 : Distinct and Coherent? Some Initial Musings about Costs in the Public Interest Context
 Author was involved in Sierra Club v BC – a case trying to stop logging in Clayquot Sound,
saying it violated legislation because it was unsustainable. MacMillan Bloedel was added as a
party bc of its large financial stake in the outcome. When Sierra Club lost, a judge decided
they had to pay MacMillan Bloedel’s costs. After this, Tollefson wrote an article arguing that
for in public interest cases, the traditional rule of awarding costs should be replaced by a oneway rule, such that only claimants could be awarded costs if they won, not defendants.
 Since then, some major cases have altered the landscape. Okanagan Indian Band approved
advance costs. And “special” costs have been awarded more and more.
 In the US, the general rule is everyone pays their own costs, but important exceptions have
been made for public interest litigation including environmental litigation. In these cases, the
one-way costs shifting rule is followed.
 In Australia, the 1995 “Costs Shifting” report was very influential. It recommended judicial
power to make “public interest cost orders”.
 The UK has seen the most reform. Protective Costs Orders (PCOs) have become a thing. PCOs
cap the amount of costs a litigant can claim or be liable for. Also, the UK might abandon its
current two-way rule in favour of a one-way rule.
Part II: Towards a Principled Approach to Costs Allocation in Public Interest Litigation
 Initial justification for rule that costs follow event were based on idea of compensation. Either
than the unsuccessful party was at fault, and the successful party should be compensated, or
the idea that fairness dictate that he winner be compensated their costs.
 Two rationales against this: public interest and access to justice
 If either of the parties engaged in misconduct during the litigation there is also the
punishment rationale
 Cdn courts are increasingly comfortable with the idea that public interest litigation may
warrant a change in costs rules, and that cost orders are a form of public policy
o This is good. What would be better would be for there to be some predictability and
coherence within cost decisions
 Jurisprudence suggests that claimants must show that they are a public interest litigant and
‘something more’ in order to have special costs rulings
o Except in Federal Court (see p 206)
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Part III: A Consideration of the Public Interest Costs Case Law
Ex Post claims
 Courts have been applying five factors test to decide whether a public interest costs award is
warranted. Victoria v Adams reworked these factors into a four-part test:
o (1) there is an issue of public importance which extends beyond the immediate
parties which has not been previously resolved, (2) the person has no personal,
proprietary or pecuniary interest in the outcome, (3) the defendant has a clearly
superior capacity to bear the costs of the proceeding (4) the plaintiff is not engaged in
vexatious, frivolous or abusive conduct.
o This has been accepted by BC and Federal Courts
 In Ontario, the approach has been to ask just one question: is the litigant a “genuine” public
interest litigant.
 Australia does a three-part test this is kind of similar to the Adams test.
Ex Ante claims for Advance costs
 Okanagan introduced the crazy idea that a party could be ordered to pay the costs of the
litigation before the litigation had even occurred! HUGE access to justice implications. In
order to get this order, three requirements must be met.
o (1) the party must be genuinely unable to pay and there are no other options. i.e.
without the advance costs order the litigation will NOT proceed.
o (2) the claim is prima facie meritorious such that it would be contrary to the interests
of justice if it did not proceed due to lack of finances.
o (3) the issues are of public interest, transcend the individual litigants, and have not
been resolved in previous cases
o Basically, if there would “an injustice” to the public at large to deny the order. Must
be “the injustice of denial of an opportunity to have a vital private and/or public issue
judged and resolved by the courts” (p 215)
 Requests for advance costs are not made very often. Have been considered by SCC three
times: Okanagan (granted), Caron (granted), Little Sisters (denied)
Ex Ante Protective Costs orders
 UK thing. Awarded if:
o (1) the issues were of general public importance;
o (2) the public interest required resolution of these issues;
o (3) the applicant had no private interest in the outcome of the case;
o (4) having regard to the financial resources of the parties and the amount of costs
likely to be involved, it was fair and just to make the order; and
o (5) if the order was not made, the applicant would likely discontinue proceedings and,
in so doing, be acting reasonably.
 There is one reported case in Canada where they asked for a PCO – Farlow v Hospital for Sick
Children.
Hétu v. Notre-Dame-de-Lourdes (Municipalité de), 2005 QCCA 199
Facts: Municipal worker took a complaint and won at the Commission des relations du travail
(CRT) against his employer, the city. The city began challenging every single aspect of the
judgment it could on judicial review, forcing Hétu to continue to fight while not paying him his
damages. The CRT awarded him $237 000, including $50 000 for lawyers’ fees and $5 000 in
punitive. Given that the municipality still hadn’t paid, Hétu asked for interim costs. Trial judge
said no.
Issue(s): Can interim costs be awarded in this case?
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Held: Yes
Reasoning: (all codal articles are from current, i.e. not new, code)
 Civilian procedure allows for less creativity than common law procedure (Lac d’amiante)
 However 477 CCP allows judges discretion in awarding costs
o Quebec jurisprudence shows many examples of using costs as a policy tool to
encourage settlement, prevent futile litigation, and sanction abusive conduct
o In exceptional, public interest cases, losing parties may be awarded costs
 In the absence of explicit legislation, courts have the power to award interim costs
o This is an exceptional occurrence
o Must fit the three criteria in Okanagan:
 1) Party would be otherwise unable to continue, 2) case is prima facie
meritorious, 3) special circumstances justifying this exceptional exercise
o The utility of advance costs isn’t that great though, given the tariff system
 The Tariff system doesn’t include extra-judicial costs but there are exceptions:
o Art 15 (cause importante), bankruptcy, family proceedings, abuse of process
(75.2 and 524 CCP)
o Only abuse of process applies here
 In abuse of process cases, extra-judicial costs are recovered as damages, not as costs
o So the principles in Okanagan aren’t directly applicable since it was about costs
 However, an order for costs, corresponding to anticipated, reasonable extra-judicial
costs, remains possible under 46 CCP in special circumstances (? Does he just mean
damages?)
o Special circumstances = impecuniousness + other party’s conduct is prima facie
abusive
 Hétu meets the special circumstances criteria:
o He’s impecunious – city hasn’t paid him a cent, doesn’t have a job
o He’s “victime d’une guérilla judiciare” – city’s conduct is prima facie abusive
 Orders $12, 500 as provisional payment of damages
o If Hétu wins and city’s conduct found to be abusive, H will get more
o If H loses, he will have to pay it back
Ratio: 1) Courts have power to award advance costs 2) Courts have power to award advance
damages for abuse of process under 46 CCP
Note: It’s hard to tell whether the judge is awarding costs or damages; he says “costs” but it
looks like damages. Looking at class notes from other summaries, Jukier clarifies that he’s
awarding damages, not costs, because costs would be the Tariff rate
Carter v AG (Canada)
Facts: Litigation challenging assisted suicide provision in criminal code. Trial Judge had found in favour
of plaintiff and had awarded full costs ($1,000,000). BCCA had said each party should pay their own
costs.
Issue: Should full indemnity be awarded? Held: Yes
Reasons:
TJ applied the Adams test for costs (from Victoria City v Adams):
(1) the case concerns matters of public importance that transcend the immediate interests of the
parties, and which have not been previously resolved;
(2) the plaintiffs have no personal, proprietary or pecuniary interest in the litigation that would justify
the proceeding on economic grounds;
(3) the unsuccessful parties have a superior capacity to bear the cost of the proceedings;
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and (4) the plaintiffs did not conduct the litigation in an abusive, vexatious or frivolous manner.The
trial judge found that all four criteria were met in this case.
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Threshold set in Adams is too low.
Special costs should only be awarded in “exceptional” circumstances
The Okanagan test is better – serves as a useful guide
Para 140: “First, the case must involve matters of public interest that are truly exceptional. It
is not enough that the issues raised have not previously been resolved or that they transcend
the individual interests of the successful litigant: they must also have a significant and
widespread societal impact.
 Second, in addition to showing that they have no personal, proprietary or pecuniary interest
in the litigation that would justify the proceedings on economic grounds, the plaintiffs must
show that it would not have been possible to effectively pursue the litigation in question with
private funding. In those rare cases, it will be contrary to the interests of justice to ask the
individual litigants (or, more likely, pro bono counsel) to bear the majority of the financial
burden associated with pursuing the claim.”
TJ was right to award full costs in this case
It was also ok for TJ to award 10% of costs to intervener AG of BC. It will be very exceptional for costs
to be awarded to a party who intervenes as a right, but in this case it was justified.
Ratio: test for special costs will be the above (based on Okanagan test)
Security for Costs
Sprinkles Cupcakes Inc. v Dlish Cupcakes Inc., 2013 ONSC 866
Facts: This is a decision re costs related to an American cupcake company suing a Canadian one for
trademark and copyright violation. The DF are asking that the PL put up security for costs because
they do not ordinarily reside in Ontario, as per rule 56.01(1)(a) of the RCP. PLs do not have any assets
in Ontario or Canada.
Issue(s): Does PLs have to put up security for costs?
Held: Yes.
Reasoning: Two-step process as per Sadat v Westmore Plaza.
(1) Party asking for security must prove that there is good reason to believe that they do not
ordinarily reside in ON.
(2) Party denying it must then demonstrate that it is unjust by proving either
o (a) that they are impecunious and ask the court to make such an order as is just in the
circumstances or
o (b) that they do have sufficient assets in Ontario (or reciprocating jurisdiction) to
respond to a cost order.
If they cannot prove they are impecunious, and they do not have sufficient assets in Ontario, they
must agree to a high threshold to satisfy the court of its chance of success. Part 2 is clearly permissive
and requires the exercise of discretion which can take into account a multitude of factors.
In the case at hand, DFs have met their onus. PLs have also proven that their assets are located in the
reciprocating jurisdiction of California. But they have not proven they have sufficient assets because
they did not provide enough evidence. Therefore they must put up security. However, it is much less
than the DFs asked for ($40,000 instead of $140,000).
Ratio: When the party is not a resident of ON and is not claiming impecunity, it must prove it has
sufficient assets.
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Costs Against Solicitor Personally
Beardy v. Canada (Attorney General), [2003] O.J. No. 3940 (SCJ) – please skim background
(paras 2-50)
Facts: The lawyer, M, was counsel for plaintiffs in a sexual abuse claim brought against religious
organizations and the Federal Attorney General. He failed to show up on two occasions at his clients’
examinations for discovery, even though he had notice of examination and was asked to confirm
suitability of dates. He also failed to respond to numerous letters and telephone calls to confirm suitability
of dates. A registered letter was sent by the Attorney General to M stating: “If [you and your client] do
not attend and additional costs have been incurred by sending counsel from this office to attend, we may
be seeking costs from you personally, pursuant to Rule 57.07(1)." Mr M did not respond. As a result,
when counsel for the Attorney General attended examinations for discovery in Hearst and Thunder Bay,
neither M nor his clients were present. Attorney General applies for costs to be paid by the lawyer M
personally for the cost of two abortive examinations.
Issue(s): Should the costs be payable by the lawyer personally? Held: Yes.
Reasoning: Rule 57.07(1)(c) grants authority for solicitors to pay costs personally where the solicitor has
caused costs to be incurred without reasonable cause or due to delay, negligence, etc.
- A cost orders against a solicitor should be used with extreme caution. It is not meant to punish
lawyers, but to control abuse of process/contempt of court.
- The threat of personal cost orders may be used as a tactic in litigation, and would foster an
antagonistic relationship between counsel.
- In Ontario, two approaches can be applied when ordering a solicitor to pay costs personally:
o Plain meaning of the rule
o Requirement that the solicitor be acting in bad faith or in an otherwise reprehensible
manner (i.e. there must be misconduct beyond mere negligence)
- In Marchand, Granger J. held that the jurisdiction to award costs against a solicitor can either be
statutory or part of the court’s inherent jurisdiction to discipline lawyers (as for contempt) –
and different standards apply for each.
o R.57.07 is not a codification of the common law, but a statutory grant of jurisdiction.
Thus, the ordinary meaning of the rule applies. There is no requirement of bad faith.
There is a two-step approach:
1. Determine whether the conduct complained of falls within the scope of the rule;
2. Decide whether the circumstances call for an application of the rule
- The solicitor’s conduct in this case goes beyond mistake, inadvertence or error in judgment.
There is a pattern of conduct indicating disregard for due process.
- Counsel had a duty to offer guidance and direction to his client. If there has been a breakdown in
the solicitor-client relationship, such that the client will no longer accept the lawyer’s advice, then
the lawyer should be removed as a solicitor of record.
Ultimately this is an appropriate case for the solicitor to pay costs personally.
Ratio: Rule 57.07(1)(c) grants authority for solicitors to pay costs personally where the solicitor has
caused costs to be incurred without reasonable cause or due to delay, negligence, etc. A cost order against
a solicitor should be used with extreme caution. The solicitor must be acting in bad faith or in an
otherwise reprehensible manner (i.e. there must be misconduct beyond mere negligence)
Check ratio – compare to class notes
Legislation/Principles/Rules
1. CCP, arts. 49 (powers of courts), 364 (suretyship), 492 (suretyship)
2. ON Rules of Civil Procedure, R. 56 (security for costs), 57.07 (lawyer liability for costs)
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Class 24, Class Actions I
Class notes
Class Actions in Canada
 1978: Quebec is the first province to enact CA legislation
o Odd because this is a common law procedure
o No CA as we know it in civilian systems
o Also, 1978 is SO MUCH earlier than the other provinces
 1992: Ontario enacts legislation permitting class actions
o This becomes the basis of CA legis for the rest of the country
o 1996: BC follows Ontario; 2001: SK and NL; 2002: MB’ AB: 2003; NB 2006; NS 2007
o The point: this is a new phenomenon. New area of law
 PEI and the territories do not have CA legis.
o But, by virtue of a SCC decision (western Canadian
 “Common Law” representative action (Western Canadian Shopping Centres v Dutton [2001] 2
SCR 534
o Even without CA legislation, CA’s can still happen. Ad hoc court rules
o But most commentators say it is better to have legislation
What is a Class Action?
 Code of Civil Procedure defines it for us: art 571
 New art 571, existing art 999
o Class action is a procedural means enabling a person who is a member of a class of
persons to sue, without a mandate, on behalf of all the members of the class”
o Recours collectif (current French version)
o New code: l’action collective
 Don’t know why this change
 Who can be a “member”?
o A natural person, a legal person established for a private interest, a partnership or an
association…
o Wide variety of people
o Used to be a restriction that a legal person had to have fewer than 50 employees. That
has been taken out in the new code
 Key: permits ONE person to sue a defendant(s) on behalf of a group or class of people, many (if
not all) are not known to the plaintiff
o Why do we need CA? if you have 74 individual suits, the court can join the suits
o But in this case, these people might know each other and organize together
o CA is for large group of unknown people
Purposes of Class Actions?
 CA’s are entirely policy-driven
 Hollick v Toronto (City) tells us!
 Access to Justice
o Theory: makes economical the prosecution of claims that any one individual class
member would find too costly
 Judicial Economy
o Easier to just have one suit than millions
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o
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If you have a bunch of parallel cases that are not necessarily joined, there would be
duplication of fact-finding and possibly even contradictory results
Behaviour Modification/Deterrence
o This is the major reason for CA
What other remedial area of law has the same kind of purpose?
o Punitive damages
o Interest sask trial decision case: sask gave plaintiff who was denied insurance a total of
4.5 million in punitive damages, (watch for this at SCC)
When CA’s were instituted, people thought it would be really good in consumer areas.
o And it has but..
Areas that have been the subject of a class action
 Consumer products
 Consumer contracts (termination of k, hidden fees, abusive clauses etc)
 Medical device/drug liability
 Pollution/environmental issues
 Securities
 Price-fixing
 Sexual abuse
Some notable cases
 Victims of Montreal’s Bernard Madoff: Claiming compensation from Earl Jones’ band
o Nelles v Royal Bank of Canada
 Tobacco Class Action
o Over 50 interlocutory appeals during the CA
 Religious institutions and sexual abuse
o Frank Tremblay v Seminaire St Alphonse et al
o Centre de la Communaute Sourde du Montreal Metropolitain and Serge D’Arcy v
Institute Raymond Dewar and Clercs de St Viateur du Canada
 Don’t need to know these cases : these were what the guest speaker was going to mention
Is the class action merely a procedural device?
 Is class action a substantive area of the law?
 Technically, no
 “le recours collectif ne constitute qu’un moyen procédural et. . . son utilisation n’a pas pour
effet de modifier les règles de fond applicables au recours individuel. . . On ne peut s’autoriser
du mécanisme du recours collectif pour suppléer a l’absence d’un des élément constitutifs du
droit d’action”
 Yet many rules are different
Role of the class action judge
 “Si, en effet, le recours collectif débute selon les règles ordinaires, il demeure que tout le
déroulement qui suit est bien particulier et fort actif pour le juge qui va y tenir un rôle de
premier plan. C’est lui qui est en quelque sorte le maître d’œuvre de la procédure. Il sera le
gardien des intérêts des absents «i.e des membres repésentés par les représentants.’
o Justice ginette Piché
 See art 585 CCP
192

Lots of things you can’t do on your own, as a re plaintiff : can’t give up an y rights, can’t modify
claim…..
o All to protect absent class members
The stages of a class action
 Additional stage than normal
 Authorization (QC)/Certification (rest of Canada)
o Defendant has the right to challenge the plaintiff’s right to bring the action, without the
usual reasons for a motion to dismiss
 Used to be that the decision on authorization meant the end of the case (D would settle)
o But this is changing. Starting to see more trials
Authorization/certification
 To what court do we go? Superior Court. How do we know?
 Only superior courts have jurisdiction to hear class actions
o Art 33 new CCP
o Like injunctions, divorce, this is a subject matter ONLY given to s 96
 2 step process: first step – prior authorization of the court is required for a person to institute a
class action
 Currently (Que): no appeal from judgment authorizing class action (only rejection) art 1010
(current code)
 On: Appeal to Divisional Court form rejection of certification, and with leave for authorization (s
30(1) and (2))
 New Quebec Code moves to that solution (art 578 new CCP)
Authorization Criteria
 QC: existing art 1003, new art 575 (no difference between the two)
 ON: s 5 Class Proceedings Act
 What’s the difference?
o QC: 4 criteria
o ON (and ROC): 5 criteria
What do you need?
 1 Commonality (art 575(1) CC, Ontario s 5(1)(c)
 2 Prima facie cause of action (art 572(2), Ontario s 5(1)(a)
 3 Identifiable group – not appropriate for individual lawsuits (art 575(3) CC, Ontario s 5(1)(b)
 4 Representative plaintiff (art 575(4), Ontario s 5(1)(e))
5th criterion (ROC)
 S 5(1)(d): class proceedings would be the preferable procedure for the resolution of the
common issue
 Element of overall judicial discretion
 How does this differ from QC?
o Is there something similar in QC?
Is QC a Class Action haven?
 It has be called one by many lawyers/judges
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o
o
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There is a fund to help pay the fees
Art 575(1)
 Commonality element is lower (Vivendi case)
o Defendant can’t appeal authorization decisions
In 2003, legislative changes brought in
o They were subject to const’l challenge (pharmascience case, she used to teach it)
o Legislatre seemed to think the threshold was too high, made the procedure for
authorization very minimal
 No affidavit or evidence reqd unless court allows “relevant evidence”
 No cross examination
In addition: no preferable procedure criterion
o Hollick case re preferable procedure (QC doesn’t have this)
Plus cost awards, general not significant
o Note: see s 42 tariff (1% over 100,000) does not apply. (see art 1050.1 CCP)
Finally: no appeal from decision authorizing class action (art 1010 CCP) THIS WILL CHANGE
Standards at authorization stage
 It is a filtering/screening stage. standard not that high
 Facts alleged are deemed to be true
 “At the authorization stage, the court plays the role of a filter. It need only satisfy itself that the
applicant has succeeded in meeting the criteria set out in art 1002 of the CCP, bearing in mind
that the threshold provided for in that article is a low one. The authorizing court’s decision is
procedural in nature, as it must decide whether the class action may proceed
o Case quote
Commonality
 Vivendi decision=most recent SCC decision
 Threshold is low
 Not all questions, or even the majority need to be identical, similar or related (even one is
enough)
 Specific grounds of defence applicable to certain categories of group members (eg prescription,
res judicata) are not a bar to authorization
 There may be variation in nature of damages and amounts claimed
 Dell’Anielloo v Vivendi Canada Inc
 Similar response to common law cases of Dutton (alta) and Rumley (BC) (although QC even less
stringent)
 “flexible approach”
 Need common questions, not common answers
 As long as success for one is success for all, different results for different class members is ok
 Similar to Lac d’Amiante – different approach to procedural issues in QC
o EVEN where QC has borrowed the procedure from common law
Prima Facie case
 “the facts alleged appear to justify the conclusions sought”
 “Pleadings disclose a cause of action”
 The facts alleged must be sufficient to ground an arguable case (but court does not enter into
merits of the case)
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Composition of the Class
 Must be identifiable and definable class
 But its composition must make it difficult or impracticable to apply ordinary joinder rules
 Factors taken into account:
o Possible number of members
o Unknown members
o Practical and legal constraints inherent in obtaining a mandate or joining actions
As an aside: according to Canadian lawyer magazine, 75% of summary judgments are granted, ever since
Hryniak decision
Representative Plaintiff
 Rep plaintiff must:
o Have a personal interest in the case (standing)
o Be legally competent
o Not have a conflict of interest with the members of the group
 Eg cross claims
 2015 QCCA decision: authorization decision. Leveque vs videotron. Issue:
o Repl plaintiff rep ppl who had rented films on the tvs “films d’adultes torrids”
o Ads said you would have film for 24 hr period, but sometimes you only had them 9-18
hrs
o Trial judge skeptical. Is this really a representative plaintiff? Hasn’t made an effort to
find any other members
o QCCA says: there is no requirement in the legislation that he has to do this – find other
class members
The necessary interest: class actions against multiple defendants
 Issue: does the rep require a cause of action against each defendant?
 Bank of Montreal v Marcotte
o Charges contrary to CPA when dealing with foreign exchanges
o It’s usually not just one credit card co that is doing it, usually all of them
o So if the rep plaintiff only has one credit card, but all the banks are doing it, shouldn’t
you join them in as defendants?
o Previously: no, the re plaintiff should have a link to each D
o In this case: it wouldn’t make sense for a rep plaintiff to have to fulfill to the letter the
rules of standing.
Preferable Procedure
 Hollick v Toronto
 Residual discretion
 Why wouldn’t a class action that otherwise satisfies the 4 criteria be the preferable procedure?
o Goes back to the policy reasons for CA
o Best for minimal injury
 Quebec: no explicit equivalent
 Only potential for equivalence is
 Is “proportionality” functional equivalent?
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
o Many cases have tried this
o Vivendi seems to end this
What does vivendi say?
Hollick v. Toronto (City), 2001 SCC 68 (excerpt)
Facts: Toronto operates a landfill near H’s house. H is bringing a class action on behalf of the inhabitants
of the region surrounding the landfill, claiming compensation for the air pollution and noise emitted by
the landfill. The landfill has a Small Claims Trust Fund to cover individual claims of up to $5000.
Issue(s): Does the claim satisfy the certification requirements for a class proceeding?
Judicial History: The Divisional Court overturned the certification order on the grounds that the
appellant had not stated an identifiable class and had not satisfied the commonality requirement. The
Court of Appeal dismissed the appellant's appeal, agreeing with the Divisional Court that commonality
had not been established.
Held: No. Appellant may pursue this action only on his own behalf and not on behalf of the stated class
Reasoning: (McLachlin C.J.C.)- S5 of the Ontario Class Proceedings Act (1992 explains the
requirements for the certification of a class proceeding – if the 5 criteria are satisfied, then the court must
certify the class. The Act must be construed generously, in light of the advantages/goals of class actions:
Judicial economy (by avoiding unnecessary duplication in fact-finding and legal analysis)
Access to justice (distribution of fixed litigation costs amongst large class)
Behaviour modification (actual and potential wrongdoers are held to account for the harm they are
causing or might cause to the public.)
The certification stage is not meant to be a test of the merits of the action; the question is not whether the
claim is likely to succeed, but whether the suit is appropriately prosecuted as a class action.
Section 5(1) states: The court shall certify a class proceeding on a motion if:
(a )the pleadings or the notice of application discloses a cause of action;
 not disputed that there is a cause of action
(b) there is an identifiable class of two or more persons that would be represented by the representative
plaintiff or defendant;
 Criteria is met. The appellant defined the class by reference to objective criteria and the class was
bounded by territory, by time, by requirement of ownership/occupation of premises.
(c) the claims or defences of the class members raise common issues;
Idea is to avoid duplication of fact-finding and legal analysis. An issue is “common” if it is a
substantial ingredient of each of the class members’ claims. The criteria defining the class should bear a
rational relationship/connection to the common issues asserted by all the class members. The class must
be defined narrowly but it’s not necessary to show that everyone in the class shares the same interest in
the resolution of the asserted common issue.
 Criteria is met, It is clear that many individuals besides the appellant were concerned about noise
+ emissions from the landfill. Moreover, the geographical area specified by the class definition appear to
have been the source of a disproportionate number of complaints,
(d) a class proceeding would be the preferable procedure for the resolution of the common issues;
 Criteria not met
This preferability inquiry asks whether a class proceeding would be preferable in the sense of preferable
to other procedures such as joinder, test cases and consolidation.
The inquiry should be conducted through the lens of the three principal advantages of class actions:
judicial economy, access to justice, and behavior modification.
Judicial economy- any common issue here is negligible in relation to the individual issues. While each of
the class members must, in order to recover, establish that the landfill emitted physical or noise pollution,
it is likely that some areas were affected more seriously than others, and each area was affected at
different times. Once the common issue is seen in the context of the entire claim, it becomes difficult to
say that the resolution of the common issue will significantly advance the action.
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Access to justice- The fact that no claims have been made against the Small Claims Trust Fund may
suggest that the class members’ claims are either so small as to be non-existent or so large as to provide
sufficient incentive for individual action. In either case access to justice is not a serious concern.
The argument that behaviour modification is a significant concern in this case should be rejected for
similar reasons.
(e) there is a representative plaintiff or defendant who,
(i) would fairly and adequately represent the interests of the class,
(ii) has produced a plan for the proceeding that sets out a workable method of advancing the
proceeding on behalf of the class and of notifying class members of the proceeding, and
(iii) does not have, on the common issues for the class, an interest in conflict with the interests of other
class members.”
[Not Considered in the analysis]
The appellant has not shown that a class action is the preferable means of resolving the claims here. he
can pursue the action on his own behalf, but not on behalf of the stated class
Ratio: For a class proceeding to be certified by the court in Ontario, it must satisfy criteria set out in s.
5(1) of Ontario's Class Proceedings Act
Comment: If this case had been in QC, would have been authorized – because there is no fifth
requirement that the class action be the “preferable means” to prosecute the case
Vivendi Canada Inc. v. Dell’Aniello, 2014 SCC 1 (excerpt)
Facts: Issue arising over a class action against changes made in a health insurance plan for retirees. At
the superior court, the judge ruled that the claimants’ right to insurance raised too many different
and separate questions to be treated as a class action. Reversed on appeal.
Issue(s): Did the court of appeal err in granting class action status?
Held: No, the questions are similar enough to merit a class action.
Reasoning: Art 1003(a) of the CCP says that class actions may only be authorized if “the recourses of
the members raise identical, similar or related questions of law or fact”. This is true in QC and the rest
of Canada, though in QC it is broader and more flexible. To meet the commonality of 1003(a), the
applicant must show that an aspect of the case lends itself to a collective decision and that once a
decision have been reached on that aspect, the parties will have resolved a not insignificant portion of
the dispute.
 The fact that members live in different provinces do not make it too dissimilar, as there is no
substantial differences between the legal schemes affecting its collective nature.
 The principle of proportionality does not allow a judge to refuse authorization when the four
criteria of 1003 are met.
 Trial judge made two errors. (1) He ruled on the merits of the case by determining that the
rights to insurance benefits of certain members of the group had not crystallized, thereby
overstepping the bounds of the function of screening motions to which he should have
limited himself. (2) He adopted the wrong methodology by seeking common answers rather
than merely identifying one or more questions that were common to the claims of all the
members of the proposed group.
 All four criteria for authorization are met.
Other notes: commonality requirement in ON and QC is different. In ON it is “common issue” in QC
“common question”. (see para 52).
Ratio: Probable results of the action should not influence class action authorization. Judge must look
at common/similar questions, not common/similar answers.
197
Bank of Montréal v. Marcotte, 2014 SCC 55 (headnote)
Facts: A class action was launched by consumers to seek repayment of conversion charges imposed by
several credit card issuers (the “Banks”) on credit card purchases made in foreign currencies primarily on
the basis that the conversion charges violated Quebec’s Consumer Protection Act (“CPA”).
 The Banks argued that (1) the representative plaintiffs did not have a direct cause of action
against each of the Banks and therefore did not have standing to sue all of them,
(2) the CPA did not apply to them due to theConstitution Act, 1867 , and (3) no repayment of the
conversion charges was owed.
 The Superior Court maintained the class action and found that the CPA applied to the Banks. It
determined that the conversion charges were “credit charges” for the purposes of contracts
extending variable credit, and ordered all the Banks to reimburse the conversion charges. It
further required BMO, NBC, Citibank, TD and Amex (the “Group A Banks”) to pay punitive
damages for failing to disclose the conversion charges.
 The Court of Appeal determined that the conversion charges were “net capital” and allowed the
appeal of the non-Group A Banks. It maintained the order against the Group A Banks, but
overturned the amount awarded against Amex as well as the award of punitive damages against
all Group A Banks, with the exception of TD.
Issue(s):
For our purposes…
Do the representative plaintiffs have standing to bring a class action against all of the Banks, including
those against which they do not have a personal right of action?
Held: Yes. The representative plaintiffs have standing to sue all of the Banks.
Reasoning:
 The law permits a collective action where the representative does not have a direct cause of action
against, or a legal relationship with, each defendant.
 Indeed, art. 55 of the Code of Civil Procedure (“CCP”), which requires plaintiffs to have
“sufficient interest” in the action, must be interpreted in harmony with the provisions governing
class actions and in accordance with the principle of proportionality found in art. 4.2 of
the CCP.
 This approach is consistent with most other Canadian jurisdictions and the CCP itself, and it
ensures the economy of judicial resources, enhances access to justice, and averts the possibility of
conflicting judgments on the same question of law or fact. In addition, the analysis of whether
the plaintiffs have standing must have the same outcome regardless of whether it is conducted
before or after the class action is authorized, because at both stages, the court must look to the
authorization criteria of art. 1003 of the CCP.
Ratio: Even without a relationship between the representative plaintiff and every defendant, the class is
to be seen as a whole for determining standing.
Notes: The principle in Regroupement des CHSLD Christ-Roy (Centre hospitalier, soins longue durée)
v. Comité provincial des malades 2007 QCCA 1068is to be favoured over that in Bouchard c. Agropur
Coopérative
Legislation/Rules
CCP, arts. 571-590 (special rules for CAs, 595-596 (collective recovery of claims), 599-600 (individual
recovery of claims)
ON Rules of Civil Procedure, R. 12
ON Class Proceedings Act, SO 1992, c. C.6
Class 25, Class Actions II
Class Actions in Canada
198
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1978: Quebec is the first province to enact CA legislation
o Odd because this is a common law procedure
o No CA as we know it in civilian systems
o Also, 1978 is SO MUCH earlier than the other provinces
1992: Ontario enacts legislation permitting class actions
o This becomes the basis of CA legis for the rest of the country
o 1996: BC follows Ontario; 2001: SK and NL; 2002: MB’ AB: 2003; NB 2006; NS 2007
o The point: this is a new phenomenon. New area of law
PEI and the territories do not have CA legis.
o But, by virtue of a SCC decision (western Canadian
“Common Law” representative action (Western Canadian Shopping Centres v Dutton [2001] 2
SCR 534
o Even withoutu CA legislation, CA’s can still happen. Ad hoc court rules
o But most commentators say it is better to have legislation
What is a Class Action?
 Code of Civil Procedure defines it for us: art 571
 New art 571, existing art 999
o Class action is a procedural means enabling a person who is a member of a class of
persons to sue, without a mandate, on behalf of all the members of the class”
o Recours collectif (current French version)
o New code: l’action collective
 Don’t know why this change
 Who can be a “member”?
o A natural person, a legal person established for a private interest, a partnership or an
association…
o Wide variety of people
o Used to be a restriction that a legal person had to have fewer than 50 employees. That
has been taken out in the new code
 Key: permits ONE person to sue a defendant(s) on behalf of a group or class of people, many (if
not all) are not known to the plaintiff
o Why do we need CA? if you have 74 individual suits, the court can join the suits
o But in this case, these people might know each other and organize together
o CA is for large group of unknown people
Purposes of Class Actions?
 CA’s are entirely policy-driven
 Hollick v Toronto (City) tells us!
 Access to Justice
o Theory: makes economical the prosecution of claims that any one individual class
member would find too costly
 Judicial Economy
o Easier to just have one suit than millions
o If you have a bunch of parallel cases that are not necessarily joined, there would be
duplication of fact-finding and possibly even contradictory results
 Behaviour Modification/Deterrence
o This is the major reason for CA
199
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What other remedial area of law has the same kind of purpose?
o Punitive damages
o Interest sask trial decision case: sask gave plaintiff who was denied insurance a total of
4.5 million in punitive damages, (watch for this at SCC)
When CA’s were instituted, people thought it would be really good in consumer areas.
o And it has but..
Areas that have been the subject of a class action
 Consumer products
 Consumer contracts (termination of k, hidden fees, abusive clauses etc)
 Medical device/drug liability
 Pollution/environmental issues
 Securities
 Price-fixing
 Sexual abuse
Some notable cases
 Victims of Montreal’s Bernard Madoff: Claiming compensation from Earl Jones’ band
o Nelles v Royal Bank of Canada
 Tobacco Class Action
o Over 50 interlocutory appeals during the CA
 Religious institutions and sexual abuse
o Frank Tremblay v Seminaire St Alphonse et al
o Centre de la Communaute Sourde du Montreal Metropolitain and Serge D’Arcy v
Institute Raymond Dewar and Clercs de St Viateur du Canada
 Don’t need to know these cases : these were what the guest speaker was going to mention
Is the class action merely a procedural device?
 Is class action a substantive area of the law?
 Technically, no
 “le recours collectif ne constitute qu’un moyen procédural et. . . son utilisation n’a pas pour
effet de modifier les règles de fond applicables au recours individuel. . . On ne peut s’autoriser
du mécanisme du recours collectif pour suppléer a l’absence d’un des élément constitutifs du
droit d’action”
 Yet many rules are different
Role of the class action judge
 “Si, en effet, le recours collectif débute selon les règles ordinaires, il demeure que tout le
déroulement qui suit est bien particulier et fort actif pour le juge qui va y tenir un rôle de
premier plan. C’est lui qui est en quelque sorte le maître d’œuvre de la procédure. Il sera le
gardien des intérêts des absents «i.e des membres repésentés par les représentants.’
o Justice ginette Piché
 See art 585 CCP
 Lots of things you can’t do on your own, as a re plaintiff : can’t give up an y rights, can’t modify
claim…..
o All to protect absent class members
200
The stages of a class action
 Additional stage than normal
 Authorization (QC)/Certification (rest of Canada)
o Defendant has the right to challenge the plaintiff’s right to bring the action, without the
usual reasons for a motion to dismiss
 Used to be that the decision on authorization meant the end of the case (D would settle)
o But this is changing. Starting to see more trials
Authorization/certification
 To what court do we go? Superior Court. How do we know?
 Only superior courts have jurisdiction to hear class actions
o Art 33 new CCP
o Like injunctions, divorce, this is a subject matter ONLY given to s 96
 2 step process: first step – prior authorization of the court is required for a person to institute a
class action
 Currently (Que): no appeal from judgment authorizing class action (only rejection) art 1010
(current code)
 On: Appeal to Divisional Court form rejection of certification, and with leave for authorization (s
30(1) and (2))
 New Quebec Code moves to that solution (art 578 new CCP)
Authorization Criteria
 QC: existing art 1003, new art 575 (no difference between the two)
 ON: s 5 Class Proceedings Act
 What’s the difference?
o QC: 4 criteria
o ON (and ROC): 5 criteria
What do you need?
 1 Commonality (art 575(1) CC, Ontario s 5(1)(c)
 2 Prima facie cause of action (art 572(2), Ontario s 5(1)(a)
 3 Identifiable group – not appropriate for individual lawsuits (art 575(3) CC, Ontario s 5(1)(b)
 4 Representative plaintiff (art 575(4), Ontario s 5(1)(e))
5th criterion (ROC)
 S 5(1)(d): class proceedings would be the preferable procedure for the resolution of the
common issue
 Element of overall judicial discretion
 How does this differ from QC?
o Is there something similar in QC?
Is QC a Class Action haven?
 It has be called one by many lawyers/judges
o There is a fund to help pay the fees
o Art 575(1)
 Commonality element is lower (Vivendi case)
o Defendant can’t appeal authorization decisions
201
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In 2003, legislative changes brought in
o They were subject to const’l challenge (pharmascience case, she used to teach it)
o Legislatre seemed to think the threshold was too high, made the procedure for
authorization very minimal
 No affidavit or evidence reqd unless court allows “relevant evidence”
 No cross examination
In addition: no preferable procedure criterion
o Hollick case re preferable procedure (QC doesn’t have this)
Plus cost awards, general not significant
o Note: see s 42 tariff (1% over 100,000) does not apply. (see art 1050.1 CCP)
Finally: no appeal from decision authorizing class action (art 1010 CCP) THIS WILL CHANGE
Standards at authorization stage
 It is a filtering/screening stage. standard not that high
 Facts alleged are deemed to be true
 “At the authorization stage, the court plays the role of a filter. It need only satisfy itself that the
applicant has succeeded in meeting the criteria set out in art 1002 of the CCP, bearing in mind
that the threshold provided for in that article is a low one. The authorizing court’s decision is
procedural in nature, as it must decide whether the class action may proceed
o Case quote
Commonality
 Vivendi decision=most recent SCC decision
 Threshold is low
 Not all questions, or even the majority need to be identical, similar or related (even one is
enough)
 Specific grounds of defence applicable to certain categories of group members (eg prescription,
res judicata) are not a bar to authorization
 There may be variation in nature of damages and amounts claimed
 Dell’Anielloo v Vivendi Canada Inc
 Similar response to common law cases of Dutton (alta) and Rumley (BC) (although QC even less
stringent)
 “flexible approach”
 Need common questions, not common answers
 As long as success for one is success for all, different results for different class members is ok
 Similar to Lac d’Amiante – different approach to procedural issues in QC
o EVEN where QC has borrowed the procedure from common law
Prima Facie case
 “the facts alleged appear to justify the conclusions sought”
 “Pleadings disclose a cause of action”
 The facts alleged must be sufficient to ground an arguable case (but court does not enter into
merits of the case)
Composition of the Class
 Must be identifiable and definable class
 But its composition must make it difficult or impracticable to apply ordinary joinder rules
202
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Factors taken into account:
o Possible number of members
o Unknown members
o Practical and legal constraints inherent in obtaining a mandate or joining actions
As an aside: according to Canadian lawyer magazine, 75% of summary judgments are granted, ever since
Hryniak decision
Representative Plaintiff
 Rep plaintiff must:
o Have a personal interest in the case (standing)
o Be legally competent
o Not have a conflict of interest with the members of the group
 Eg cross claims
 2015 QCCA decision: authorization decision. Leveque vs videotron. Issue:
o Repl plaintiff rep ppl who had rented films on the tvs “films d’adultes torrids”
o Ads said you would have film for 24 hr period, but sometimes you only had them 9-18
hrs
o Trial judge skeptical. Is this really a representative plaintiff? Hasn’t made an effort to
find any other members
o QCCA says: there is no requirement in the legislation that he has to do this – find other
class members
The necessary interest: class actions against multiple defendants
 Issue: does the rep require a cause of action against each defendant?
 Bank of Montreal v Marcotte
o Charges contrary to CPA when dealing with foreign exchanges
o It’s usually not just one credit card co that is doing it, usually all of them
o So if the rep plaintiff only has one credit card, but all the banks are doing it, shouldn’t
you join them in as defendants?
o Previously: no, the re plaintiff should have a link to each D
o In this case: it wouldn’t make sense for a rep plaintiff to have to fulfill to the letter the
rules of standing.
Preferable Procedure
 Hollick v Toronto
 Residual discretion
 Why wouldn’t a class action that otherwise satisfies the 4 criteria be the preferable procedure?
o Goes back to the policy reasons for CA
o Best for minimal injury
 Quebec: no explicit equivalent
 Only potential for equivalence is
 Is “proportionality” functional equivalent?
o Many cases have tried this
o Vivendi seems to end this
 What does vivendi say?
203
EXAM: we will use soft test open book exam
April 9, 2015, class 25
LAST CLASS!!!!
Today: finish class actions
 What sets CA’s apart is the two-step process: certification, then the rest
 A number of requirements to get authorization
5th requirement: Preferable Procedure
 Does not exist in QC
 Residual discretion
 Hollick v Toronto
o Court says: plaintiff met all the other requirements, but I still don’t think this is
preferable. There will be too many individual claims, and the resolution of the common
issue of pollution really won’t advance the issue in an economical way
o We learn two things from Hollick: (1) there is a fifth criteria of overall discretion that can
override the fact that the other criteria are met (2) the court looks to the justifications
of class actions in order to use that discretion
 Why wouldn’t a CA that otherwise satisfies the 4 criteria be the preferable procedure?
o If it doesn’t satisfy the justifications of CA’s
 QC – no explicit equivalent
o Courts have grappled with the question of whether or not there is a functional
equivalent
 Is “proportionality” a functional equivalent?
o 2009: another Marcotte case, Marcotte v Longueil. SCC split 5:4 on what courts should
do with proportionality and can it be a separate, independent, distinct discretion to
refuse a class action, or can it not?
o Deschamps – strong dissenting opinion. Proportionality is a guiding principle throughout
the code, but not an independent criterion.
 What does Vivendi say?
o Vivendi: para 66, 68
 Proportionality can be used within each of the 4 criteria, but not an overall, 5th criteria.
o What does that mean?
 Videotron porn case:
o TJ did not want to authorize CA. CA reverses decision.
o TJ: very skeptical. Are you even representing a class? CA says: don’t have to prove size of
class.
o TJ goes further: in addition, I’m going to use 4.2. tries to read proportionality into
individual requirements of 1003. Says: is this really proportional?
o How is it not proportional?
 If there are not other class members, then not proportional
 Maybe a bit of a frivolous claim
 Also, CA’s not cost-free. They cost the court system a lot more than an
individual action. Cost not negligible. Shouldn’t take CA’s lightly.
204
Effects of authorization on the class representative
 Why would someone be a class rep? general answer:
o Rep plaintiff didn’t have to carry financial load (until Kerr and Danier)
 Potential help funding the case: Fonds d’aide aux recours collectifs
o Some financial help to pay expert opinions, lawyers fees, disbursements
o Criteria: you can’t have any other financing
o If law firm is taking the case on a contingency fee, they are not eligible for funding
 Class representative must advance the class action in the best interests of the members of the
class
 Class rep may continue representing the class, even if his/her individual claim has been settled
(art 589 CCP)
Effects of authorization on class members
 Authorization judgment describes the group whose members will be bound by the judgment
o Not always easy to define the class
o Malheb and metro media – the taxi drivers case. Radio announcer making derogatory
statements about arab taxi drivers in montreal. When the CA was authorized – big
question was ‘how do we describe this group’?
o “All Haitian/arab taxi drivers” what’s wrong with that? What does “Haitian” or “arab”
mean? Language? Immigration status? Ethnicity?
o QCCA changed the defn of the class to ‘all taxi drivers’ whose mother tongue is Arabic or
creole”
 Court can redefine the class (art 576 CCP)
 Opt in vs opt out?
o Big debate in class action literature
o What does it mean that if you don’t opt out, you are in?
 Means you lose your individual right of action
 Eg. Faulty artificial hips. Successful class action. But an instance where a lot of
people opted out.
 How do you know that there is this class action that you want to opt out of? –
Notice
 All of Canada is opt-out, EXCEPT BC (only for non-residents)
 After authorization – publication of notice to class members
 Authorization judgment defines time limit to opt out
 Modalities of opting out – art 580 CCP
o Informing the clerk
Important Court powers
 Can’t amend your pleadings without court permission
 Court can redefine the class
But the really big stuff is:
 Settlements with class members must be approved by the Court (current art 1025, new art 590)
o This does not happen in ANY OTHER context
o Courts have influence when settlements are homologated, but that’s it
 Class counsel fees are paid from amounts recovered and must be approved by the Court
 See Landry v CSN
205
o

Nobody in Landry opposed the settlement or the fees, yet the court said ‘we don’t need
opposition’
Notice: includes notice of settlement hearing, allows any member to come
Some issues peculiar to Class Actions
 What if 2 class actions are filed in same jurisdiction covering the same alleged issue which one
proceeds?
 In Quebec: it is the first to file rule. First to file is the one to carry the class action
o Incentive for lawyers to go out and find that rep plaintiff and file first
o Some jurisprudence emerging to the effect that this is not always the case.
 ROC: has a “carriage motion”. If there are two firms that have taken CA’s, the court will have the
law firms/lawyers come to court and argue why their firm should have it
 First to file vs Carriage motion
Recovery
 Collective Recovery (arts 595-596 CCP) vs Individual recovery (arts 599-600)
 Individual recovery: defendant pays only those members of the class who come forward and
make a claim
 Collective Recovery: Defendant pays a lump sum (of damages or money unlawfully collected)
 What happens to the monies that are not claimed?
o Loads of money from uncollected collective recovery awards
o Goes to charities related to the purpose of the class action
Other important issues
 Costs (could Kerr occur in QC?)
 Usually, lawyer will pay cost.
 But some jurisdiction: BC, MB, SK, and FC have instituted a no-cost rule
o CA’s are an A2J mechanism, and we don’t want the fear of an adverse costs rule to chill
the mechanism
 ON and QC:
o Art 1050.1
o But no more tariff under new code. No claim for extrajudicial fees, only legal costs,
unless there is abuse
 Relationship between arbitration clauses and class actions (recall Dell case and new provisions
of QC and Ontario CPA)
o Can consumers waive their right to a class action through agreement to arbitration
clause?
o According to ON and QC CPA’s, this is not possible (overruling Dell SCC decision)
 National Class Actions
o No national class action legislation in Canada
o Parallel class actions
 Remember tracy and instaloans case? Mareva injunction in context of BC class
action.
 But that doesn’t mean we don’t have de facto national class actions
o Lepin case – Ontario class action in which class was described broadly enough to include
individuals from other provinces. Lepin was from QC. SCC said notice provision were not
good enough.
206
Conclusion
 Overall, is the class action a positive development?
 If so, why is France, for instance, so resistant?
o Worries about ambulance-chasing
 Remember – at the end of the day, most of class actions law is about policy
Landry v. Syndicat du transport de Montréal (Employés des services d'entretien) CSN, 2006
QCCS 1623
Facts: A representative plaintiff brought a class action case against the STM. It was approved by the
Court. This is the group:
«Tous les usagers de la Société de transport de Montréal) (STM) qui ont subi un dommage occasionné
par les moyens de pression illégaux et/ou activités illégales et/ou autres perturbations fautives
exercés du 1 septembre 2003 au 11 décembre 2003 inclusivement par les membres du Syndicat du
transport de Montréal (employés des services d'entretien) CSN».
The STM agreed to put $925,000 aside for the benefit of the group.
 $30,000 is put aside to facilitate the payment process (to the FARC , la fonde d’aide aux recours
collectifs). Other deductions may be made for those designated to deliver the money.
 Notice was put in newspapers to alert the group that they were entitled to recourse.
 There was an opportunity for people to critique the settlement scheme, but no one showed up.
Issue(s):
(1) Is the settlement agreement in its entirety reasonable and appropriate?
(2) Does the Court have the power to intervene and reduce the lawyers’ fees from $277 500 to $150
000, donating the difference to a non profit organisation tasked with the betterment of Montrealers?
Held:
(1) Yes.
(2) Yes, but they only reduce it to $225 000.
Reasoning: Despite the intentions of the parties, the Tribunal still must determine whether the
settlement in question is reasonable, equitable, and appropriate for the best interests of the group.
While the Court should respect a contract made between parties (2633 CCQ), under 1025 of the CCP,
they can approbate (approve) the claim.
The jurisprudence has opened up these criteria for analysis:
➢ les probabilités de succès du recours;
➢ l'importance et la nature de la preuve administrée;
➢ les termes et les conditions de la transaction;
➢ la recommandation des procureurs et leur expérience;
➢ le coût des dépenses futures et la durée probable du litige;
➢ la recommandation d'une tierce personne neutre, le cas échéant;
➢ le nombre et la nature des objections à la transaction;
➢ la bonne foi des parties;
➢ l'absence de collusion.
There were no issues with any of these enumerated points.
Issue 2:
207
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Both sides worked excessively on this case. The plaintiffs did so with almost no payment despite
charging an hourly rate of $150.
 The STM argued that they did not deserve the $277 500 because they could not have put more
than 1000 hours into this uncontested class action.
 The Court has the right to examine the amount paid to lawyers.
 They examine the ethical code and while risk is not relevant in determining a “fair and just”
wage, the Court is influenced by the huge number of affected individuals and the fact that the
lawyers saw almost no money the entire time they worked on the case.
 These points justify the lawyers charging more than simply their hourly rate.
 In class actions, proportionality (4.2 CCP) is an important element to consider when establishing
fee arrangement.
 Authors are brought it to show how difficult a job it is to be a class action lawyer.
 So, to strike a balance with proportionality, the Court applies a 1.6x multiplier to the hourly
wage of the lawyers, bringing their final compensation to $225,000.
Ratio: Proportionality must be used when examining fee arrangements in class action lawsuits.
Notes: Half the judgement had to be “fixed” under 475 of the CCP because of errors.
Kerr v. Danier Leather Inc., 2007 SCC 44
Facts: Danier released a prospectus with a view to taking the company public. The company’s fourthquarter performance fell significantly short of the forecast in the prospectus, but Danier did not alter the
prospectus or disclose the shortfall before closing. The appellants therefore brought a class proceeding
for under s. 130(1) of the Ontario Securities against Danier for the money lost as a result of this
misrepresentation in the prospectus. Mr. Durst is the class representative. The trial judge found Danier
liable for statutory misrepresentation, but this was reversed by the court of appeal.
Issue(s): 1.Is Danier liable for statutory misrepresentation? 2.As he loses his appeal, does Mr. D, as class
representative, have to pay Danier’s costs? [Focus on this question]
Held: 1. No 2.Yes.
Reasoning: (Binnie J.) The Ontario Securities Act only requires post-filing disclosure of a “material
change” – A change in intra-quarterly does not qualify and therefore Danier had no obligation to
disclose  Durst and the class lose.
Costs are awarded to the successful party, Danier, to be paid by Durst ( the class representative)
 The appellant Durst argues that s. 31(1) of the Class Proceedings Act, 1992 and general concerns of
access to justice should justify the court’s departure from the rule that costs follow the event
 s. 31(1) “In exercising its discretion with respect to costs under subs. 131(1) of the Courts of Justice
Act, the court may consider whether the class proceeding was a test case, raised a novel point of
law, or involved a matter of public interest”
 It has not been established that this is a "test case" in the conventional sense of a case selected to
resolve a legal issue applicable to other pending or anticipated litigation.
-Appellants have not raised a "novel point of law"– it is simply a shareholder dispute between
sophisticated commercial parties, concerning a lot of money and requiring the statutory interpretation
of the Securities Act by the court
-The appellants contend that the present case raises a matter of public interest, However, this is a
dispute where private commercial interests predominated.
-Neither party is historically disadvantaged- this is, in essence, "a commercial dispute between
sophisticated commercial actors who are well resourced
-There is no magic in the form of a class proceeding that should in this case deprive Danier of its costs –
the language of s. 31(1) is permissive
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-If anything, converting an ordinary piece of commercial litigation into a class proceeding may be seen
by some as a strategy to try to force a settlement
-Those who inflict the costs of litigation on others in the hope of significant personal gain can expect
adverse cost consequences if they fail. Mr. D knew he could be held solely responsible for Danier’s
costs if he lost – he chose to continue
 Furthermore, there are no general access to justice concerns in this case – it should not be
assumed that class proceedings invariably engage access to justice concerns to an extent sufficient
to justify withholding costs from the successful party
Should not stereotype class proceedings  not always David v. Goliath scenarios
Class actions, for example, have become a staple of shareholder litigation
 Nothing in this case justifies a departure from a general rule that costs follow the result
Ratio: An unsuccessful class representative risks being held responsible for the defendant’s costs.
William McNamara, “Multi-Jurisdictional Class Actions in Canada” in Barreau du Québec Service de la formation continue, Développements récents en recours collectifs, vol. 312,
(Cowansville, QC: Yvon Blais, 2009)
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Class Actions are creatures of statutes
Three types:
1. Opt-in. Means that residents of other provinces have to opt-in to a CA in a different
province. If they don’t opt-in they are automatically excluded. Developed by BC, followed by
AB, NL, NB
2. Opt-out: means residents of other provinces are still members of a class action, unless they
specifically opt-out. MB and SK do this.
3. Legislation in ON, QC, NS does not specifically address multi-jurisdictional CAs, but
implicitly has the opt-out model.
Note: if you don’t opt out you lose your right to bring your own, individual action
But… class action legislation is provincial legislation, so how can it be relevant in other
provinces?
Cdn courts have followed the logic of American courts: “reasonable notice plus an
opportunity to opt out provides «at a minimum» sufficient due process for the judgment of
one state to be given full faith and credit by the courts of other states so that class members
in the first state would be prevented from taking action in other states.” P 2
o “It seems sensible. . . to have the liability of the Defendants determined once and for
all for all Canadians” (p 2)
In Wilson v Servier the inherent territorial limitation of provincial legislation was rejected.
Said, if there were common issues affecting all Canadians it made sense for judicial efficiency
and access to justice to deal with it only once.
More recently a different issue has emerged. That is whether certification decisions certifying
a multijurisdictional class action will be recognized or enforced in other Cdn jurisdictions.
Three significant decisions. First, Currie: an ON Court asked to recognize an Illinois ruling for
an international class of McDonald’s customers. ON Court refused, saying it would be unfair
to Ontario McDonald’s customers who would have no idea that their rights were at stake in
front of an Illinois court. Order and fairness were the issues at stake. “order and fairness
required that Ontario class members be given a meaningful opportunity to opt out of the
class proceeding, which meant in turn that they had to be given proper notice of the Illinois
proceeding” p 5
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Second, Lepine v Canada Post, a QC case. Refused recognition of an Ontario judgment
because the notice was confusing and inadequate.
 Third, Hocking c Haziza, a QC decision refused recognition again. The notice was published
one time only in the Globe and Mail, National Post, Vancouver Sun, Gazette, La Presse, and Le
Soleil. Bich J found this to be inadequate.
 Another potential issue is the inability of out-of-province class members to meaningfully
participate in the settlement negotiation process.
 Conclusion: if order and fairness matter, then notice is very important, and must be sufficient
to reach class members.
Wrapping UP
 Constant yo-yo from macro-micro, policy to procedure
 Macro themes:
o Critical look at the role of institutions of civil justice
o Principles of a good civil justice system
o Key characteristics of judicial institutions
 Micro themes:
o Who: Who are the parties that can sue and be sued? Standing, joinder, voluntary and
involuntary
o What: What courts can hear their case? What limits are placed on the parties regarding
their right to sue? What tools do courts have?
o Where: Where can parties sue?
o When: What are the delays within which parties need to act or take certain procedures?
When can appellate court intervene?
o How: The procedures in the pre-trial process? How do parties execute their litigation
strategy?
o Why: What are the policy choices behind the micro rules and judicial tools?
Linking Macro and Micro – some examples
 Macro: access to justice
o Micro: Costs (advance costs), class actions, discovery, ADR
 Macro: Open Court Principle
o Micro: Discovery (confidential or not)
 Macro: efficiency of civil justice
o Micro: simplified procedure, 180 day rule, summary judgment
 Macro: fairness
 Micro: fact vs notice pleadings, enforcement of foreign judgment
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