Fall 2011, McGill University
Judicial Institutions and Civil Procedure
Me Geeta Narang
Salut! Je ne fais normalement pas de résumés de matière, mais plutôt je me fais une courte feuille de travaille pour
les examens. Sauf exception, je prends le syllabus du cours et j’ajoute les notes et références que je juge
importantes ainsi que des résumés utilitaires des arrêts. Vous n’apprendrez rien en lisant mes ‘résumés’, mais j’ai
trouvé que ce style de document est utile pendant un examen. 
A. JUDICIAL INSITUTIONS
1) The Court System in Canada (1rst instance proceedings)
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Constitution Act, 1867
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92(4)&(14): power of province over prov. offices and admin. of justice
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96-101: see generally for rules of judicature
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CCP 22-24 (general provisions), 31 (Sp Ct has general jurisdiction), 33 (Prov Cts subject to superintending power of Sp
Ct), 34-35 (jurisdiction of Ct of Quebec), 36.1 (adoption), 36.2 (psychiatric assessment), 448-456 (decl. judgments),
834-861 (extraordinary recourses)
Small claims: CCP 953 – 955 (small claims, $7,000), 959 (representation), 965 (options of df when sued), 977/978/981
(powers of judge), 984 (judgment is final)
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Court of Justice Act, RSO: review of Ct of Appeal, Ct of Ontario (Sp Ct + OCJ), Divisional Ct (part of Sp Ct, appelate
jurisdiction), Small Claims Ct (part of Sp Ct), ON Ct of Justice (Prov Ct)
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Federal Courts Act: (17.1) Fd Ct has concurrent general jurisdiction in all cases against Crown ; has exclusive
jurisdiction in some cases ([18(1)(a)] injunction against fed. board, commission, tribunal, [18(2)] Cdn Forces) ; (18.1)
power for judicial review of fed. boards, commissions and tribunals ; (20) exclusive jurisdiction for copyright, trademarks, industrial design
CREVIER v AG CANADA (SCC, 1981)
o Discipline Committee of a profession made decision about convicting two members; reviews
and appeals to Professions’ Tribunal, Superior Court, Court of Appeal
o Provincial law has privative clause which doesn’t recognize reviews by Superior Court
o Held that privative clauses encompassing jurisdiction may be overturned as unconstitutional
for having the effect of creating a s. 96 court
o Privative clauses may oust judicial review on questions of law and on other issues, but
cannot limit jurisdiction without appeal or review (extraordinary recourse)
o Idea: create (1) general court of appeal and separate (2) Constitutional Court of Canada
RE RESIDENTIAL TENANCIES ACT (SCC, 1981)*
o Three-part test :
1. Is it historically a s. 96 court power? (before Confederation)
2. Is it still judicial (and not a policy question)?
3. Is the function of the court primarily adjudicative, so that it would be like a s. 96 Ct?
o Assume s.96 Cts have jurisdiction and all powers needed
SÉMINAIRE DE CHICOUTIMI v CITY OF CHICOUTIMI (SCC, 1973)
o Court set up by provincial legislature had as its main objective something historically s. 96
o Case should be referred to competent court, the Superior Court
Fall 2011, McGill University
Judicial Institutions and Civil Procedure
Me Geeta Narang
AG CANADA v LAW SOCIETY OF BC (SCC, 1982) ‘case of lawyer advertising on billboards w/ pricelist’
o SCC holds you cannot strip a provincial Sup Ct of power to issue declaratory judgments (if
not, would take away ability to review law’s validity by forcing its blind enforcement)
RÉGIE DU LOGEMENT v GRONDIN (SCC, 1983)
o Relationship between lessors and lessees not exclusively s. 96 power at Confederation
MACMILLAN BLOEDEL v SIMPSON (SCC, 1995)
o Issue is whether having contempt of court decided by Youth Court is s. 96 power
o Use three-part test in Re Residential Tenancies
o Granting jurisdiction to Youth Court OK as long as not to exclusion of provincial Sup Cts
o Sup Ct, barring C’al modification, will always have discretion on whether to defer to Y Ct
2.1) Appellate Courts
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25-30 CCP: see generally for Court of Appeal
26 CCP: main cases in which there can be an appeal (by right)
46 CCP: Cts and judges have all powers necessary for the exercise of their jurisdiction (issue any orders, etc.)
491-524 CCP: see generally for rules regarding appeals (who can appeal, inscription, 30 day rule, etc.)
FARMER c NEW HAMPSHIRE INSURANCE (QCCA, 1987)
o Fire burns two buildings; Insurance companies sue party responsible for fire; Appeal
dismissed for 5 parties because of jurisdiction (based on amounts)
o (1) Add interest to total amount, when finding jurisdiction (see 27 CCP)
o (2) Calculate amounts individually, when finding jurisdicition
o Since no appeal as of right (threshold of $6,000, would have needed to ask leave to appeal
JOYAL c CONSTRUCTION RAYMOND (QC CA, 1987)
o Appelant asked court to rule on matter not discussed in trial judge’s reasons
o Ct of Appeal didn’t fully agree with trial judge, only has appelate jurisdiction over judgment
2.2) The Supreme Court of Canada
SUPREME COURT OF CANADA ACT
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3 – SCC is general court of appeal for Canada
6 – at least three judges from QC
9 – judges hold office during good behaviour, or until 75 yrs old
28 – judge can’t hear matter if appeal is against his judgment, or if he took part in it
35 – appelate, criminal, civil jurisdiction, decisions from Fed Ct of Appeal
40 – SCC can hear cases where it is of the opinion that issue of public importance, ought to be heard by SCC or is of
such a nature as to warrant a decision by SCC (whether issue of law or mixed fact and law)
52 – SCC judgments are final and conclusive in all cases
53 – creates references, a form of original jurisdiction for SCC (esp. with regards to constitutionality)
Fall 2011, McGill University
Judicial Institutions and Civil Procedure
Me Geeta Narang
CONSTITUTION ACT, 1867
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101 – Parliament of Canada can create General Court of Appeal, Cts for better admin. of laws
129 – All laws, courts, legal powers, etc. existing at Confederation continue
MACDONALD v CITY OF MONTREAL (SCC, 1986)* ‘case of Anglo who got court summons in FR only’
o Court has jurisdiction to hear a case for which leave to provincial Ct of Appeal was denied
o Should be used sparingly (i.e. where legal principles of national importance, and especially
constitutional importance)
REFERENCE RE SAME-SEX MARRIAGE (SCC, 2004)*
o SCC refuses to answer whether opposite-sex requirements for marriage in CML and QC law
is consistent with Canadian Charter
o Court rarely refuses to answer a reference question, but can do so if (1) question lacks
sufficient legal content and (2) answering would be problematic for other reasons
(amibguity of question, lack of sufficient information)
o Here, government intends to introduce legislation on same-sex mariage regardless of court’s
opinion ; answering question would not help ensure uniformity of the law (references are
advisory and not binding), and might even undermine it since provincial courts came to
different binding conclusions in their provinces
COCA-COLA v MATTHEWS (SCC, 1944)
o SCC refuses to decide case because no issue remains to be decided (Coke will pay anyway)
o SCC will not decide where a judgment will have no immediate practical effect and it would
merely be exressing its view on a legal question
ERNEWEIN v MINISTER OF EMPLOYMENT AND IMMIGRATION (SCC, 1980) – modified by MacDonald
o Fed. Ct. of Appeal denied application to appeal; E appeals directly to SCC
o Types of appeal: (1) by right, (2) by leave (requires permission)
o SCC should not force intermediate court to hear an appeal
o DISSENT: might create negative precedent and permanently prevent review
RE WESTAR MINING (SCC, 1993)
o Respondents try to quash application for leave to appeal to SCC
o CCAA (some law…) places no restrictions on SCC jurisdiction over granting leaves to appeal
o Cf. MacDonald v Montreal (could grant leave even if provincial appelate court refused)
WEYWAYKUM INDIAN BAND v CANADA (SCC, 2003)
o Judge maybe biased, but unrealistic to hold that eight others were biased as consequence
JUSTICE IS IN THE DETAILS (Philip SLAYTON)*
o Decisions on leave to appeal to SCC don’t give reasons, gives impression that it is aleatory
Fall 2011, McGill University
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Judicial Institutions and Civil Procedure
Me Geeta Narang
Justice not seen to be done, and doesn’t guide profession and citizens about what kinds of
applications are likely to be successful
REFORMING THE SUPREME COURT OF CANADA (Peter MCCORMICK)*
o SCC is mechanism for promoting unity in law across the country, by interpreting new
legislation, deciding between different interpretations of doctrine for all Cdn jurisdictions
o Problems: expenses, constrained caseload, extensive appelate jurisdiction
o Issues with general appelate jurisdiction: judicial review can severely constrain actions of
government, dealing more and more with important constitutional issues which might be
preferably decided by elected representatives of the citizenry; different courts can come to
different conclusions and even change their minds
o Issues: SCC could be repealed (statute!) and gvmt has full discretion in nominating judges
o Solutions: create (1) Court of General Appeal (all non-constitutional issues, full powers) and
(2) Constitutional Court (powers for binding every other court on C’al issues)
BULLETIN OF PROCEEDINGS, SPECIAL EDITION STATISTICS 2000 TO 2010 (SCC)
o Very few appeals as of right, most are criminal law (then procedural, then civil
Charter/Admin./Commercial), decrease in times to get to hearing, but increase in time
between hearing and judgment
S.C.C. – 2007 STATISTICS (Eugene MEEHAN)
o Feels you have to sell your case to SCC by emphasizing national importance
o Continued importance of “palpable and overriding” principle ; SCC often split
SUPREME COURT OF CANADA: PROCESS AND ADVOCACY (Eugene MEEHAN)
o Steps for getting to SCC (leave, response, reply, cross-appeal, notice, different motions, filing
facta, etc., final judgment)
o No jurisdictional limits to SCC’s power to hear appeals ; ex. of appeals as of right ; tips on
advocacy
HOW TO DEVELOP AN APPEALING PERSONALITY (Eugene MEEHAN)
o Importance of writing strong written appeal, and doing it well (most common filing at SCC)
3) The Judge
Role of judge is to decide everything ; role depends on office ; juries can still be used in QC criminal cases
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CA, 1867: 99 (hold office on good behaviour, or until 75 yrs old), 100 (salaries of Sp Ct judges fixed and paid by
Parliament)
CA, 1982 (Charter): 11(d) – innocent until proven guilty by fair and public hearing by independent and impartial
tribunal
JUDICIAL INDEPENDANCE
Fall 2011, McGill University
Judicial Institutions and Civil Procedure
Me Geeta Narang
Principle: judges should be seen to be independent, and have institutional independence. Why?: Public must trust system so it
will (1) use it and (2) accept the judgments once they are rendered.
UK principles inherited: appointment on good behaviour, fixed salaries, judges hard to remove, neutral appointment
VALENTE v THE QUEEN (SCC, 1985) ‘case of judge who refused to decide on his on impartiality’
o V, criminally charged, claimed that Court is biased; judge suspends proceedings…
o Judge was independent because met three criteria: (1) security of tenure [he did, even if
other judges didn’t], (2) finanancial security [minimum req’ment that judges have right to
salary], (3) independent administration of the courts [for things relating directly to judicial
function]
RE THERRIEN (SCC, 2001) ‘case of judge who got pardon after serving year in prison [helped FLQ]’
o QCCA Report was not a judgment, but SCC can still hear appeal because it’s a decision
o Conseil de la magistrature held to have jurisdiction over issue (even if Therrien not
disclosing his past criminal record happened before he was a judge)
o SCC finds judges should be held to extremely high standards (judicial function unique,
importance of public confidence in system) and Therrien should be removed
o Test: was conduct so manifestly contrary to impartiality, integrity and independence of
judiciary that confidence of individuals appearing before the judge, or members of the
public, would be undermined and thus render him incapable of performing his duties?
PROVINCIAL COURT JUDGES’ ASSN. OF NEW BRUNSWICK v NEW BRUNSWICK (SCC, 2005)
o Case of commissions suggesting increase in judges’ salaries and provinces refusing
o Judicial independence does not prevent gvmts from reviewing the recommendations of
committees, as long as (1) legitimate reason, (2) factual foundation, (3) respect of
commission process and objectives (focus on gvmt’s response)
CANADIAN JUDICIAL COUNCIL WEBSITE – EXPECTED CONDUCT OF JUDGES
o High standard of personal conduct both on and off the bench (public complaints system)
o Recommendations: (1) careful when accepting position in an inquiry, (2) integrity, (3)
diligence (try to have judgment in 6 mnths), and (4) impartiality in fact and appearance
RECUSATION
REG. v BOW STREET METROPOLITAN, EX PARTE PINOCHET UGARTE (UK, 1998)* ‘yes, P the dictator’
o Lord that decided that Pinochet did not have state immunity was Chairperson of an affiliate
of Amnesty International ; Amnesty International was intervener in the case
o Judgment should be overturned; violated principle of “nemo judex in sua causa” (judge was
effectively deciding his own cause because he had pecuniary or personal interest)
o Test: Is there a real danger of bias of the relevant member of the tribunal?
o Not accused of bias, but must preserve the justice system from any suspicion of impartiality
Fall 2011, McGill University
Judicial Institutions and Civil Procedure
Me Geeta Narang
R v S (RD) (SCC, 1997) ‘case of black judge making comments about police and racial minorities’
o Judge’s comments held not to give rise to a reasonable apprehension of bias (if bias, then
judge exceeds jurisdiction and would require new trial)
o Test: what would an informed person, viewing the matter realistically and practically, and
having thought the matter through, conclude? (here, comments off-hand and at the end)
o DISSENT: Judge stereotyped police offers, gave bad impression that this might have
influenced her decision about credibility of witness
MUGESERA v CANADA (SCC, 2005) (optional)
o Motion was brought alleging that Minister abused power, being influenced by Jewish groups
o Held that allegations unacceptable, that Minister only used legally available processes
o Abella J recused herself, but no proof of bias on for whole court (reasonable person)
WEYWAYKUM INDIAN BAND v CANADA (SCC, 2003) (optional)
o Judge’s impartiality presumed, in this case applicant did not prove otherwise
UNFORTUNATE CASES
RE RUFFO (QCCA, 2005) ‘case of crusading judge knowing psychologist and not telling anybody’
o DPJ complains to Conseil de la magistrature about conduct of Judge Ruffo, asks recusal
o Ethical duties of judges are inherent to judicial function (personal qualities, conduct, image);
high standards of conduct, avoid outside influence (limits to judicial independence, because
principle for the benefit of public, not judge personally)
o Fundamental pillars of ethics: (1) commitment to law, (2) adherence to typically judicial modes
of operation and thought, (3) preserving impartiality, (4) prohibition of abusing prestige
CONSEIL DE LA MAGISTRATURE c DUBOIS (QCCA, 2010) (optional)
o Judge made negative comments about Commission des droits de la personne in judgment ;
Commission complained (abuse of independence?)
o Sp Ct was wrong to interfere in decision of Conseil de la magistrature (an admin tribunal)
because it was not an exceptional case, and decision did not fall outside its recognized expertise
APPOINTMENT OF JUDGES
France: formal in-school training of judges, then exam / US: elections, Senate public hearings / Canada: political appointments
Importance of educating public (have open process, like R. MacDonald suggests)
PARAMETERS OF POLITICS IN JUDICIAL APPOINTMENTS (Roderick MACDONALD)*
o Elements of judicial independence: (1) neutral appointment, (2) security of tenure, (3)
financial independence, (4) administrative autonomy
o Ideal: profesonnal judges who function within constitutional framework of accountability
and independence, who are given authority to exercise human judgment
Fall 2011, McGill University
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Judicial Institutions and Civil Procedure
Me Geeta Narang
Cannot have perfect selection process (‘inescapable human dimension’), but consider (1)
professional qualities, (2) institutional qualities and (3) personal qualities
Inappropriate influence, ex.: patronage, rewards for financial contributions, response to
requests of donors, personal prejudice, to ensure favourable outcomes in litigation, stacking
bench with ideologues
Solutions : (1) appoint only certified candidates, (2) have elaborate criteria, (3) give reasons
for decision, (4) appointment committee members should have security of tenure
INQUIRY COMMISSION FOR THE PROCESS OF APPOINTING JUDGES (BASTARACHE REPORT)
o Weaknesses in process: no official guidelines, generally lacks in transparency, inefficient
o Judicial appointment process directly related to judicial independence (public’s perception)
o Process in QC: (1) independent committee, (2) appointment by executive from list
o Recommendations: selection criteria in statute, reasons given by Minister, all information
should be available on website of a new secretariat, etc.
SUPREME COURT APPOINTMENT PROCESS (United States)
o Lifetime appointment ; first nominated by President then confirmed by the Senate
o Political nature of the appointment process (esp. when candidate with sharp partisan views)
CANADIANS DESERVE TO KNOW WHO THE NEXT PM WOULD PUT ON THE BENCH (Philip SLAYTON)
o PM can single-handedly shape SCC, “Canada’s most significant governance institution”
o Belief of judges will influence the law they make ; issue that PM can choose all by himself
4) The Lawyer (North America)
Two roles: (1) zealous advocate for c lient and (2) officer of the court – two masters is problematic (or three, if law firm)
Monopoly on legal representation (QC: s. 128 of Act Respecting the Barreau du Quebec) (ON: based on CML)
In QC, contract is a mandate (2130-2148 CCQ for characteristics of mandat, and obligations of mandatary)
CODES OF PROFESSIONAL CONDUCT
CODE OF ETHICS OF ADVOCATES (QUEBEC)* (see printout)
o
[3.01.01] competency, no illegal actions, confidentiality, fair and reasonable fees, avoid conflicts of interest, never speak
directly to represented party, advise clients if eligible for legal aid, must submit settlement offers to clients, etc.
RULES OF PROFESSIONAL CONDUCT (LAW SOCIETY OF UPPER CANADA)* [R2: Relationship to Clients]
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Lawyer should be competent ; require conscientious, diligent and efficient service
Lawyer could face disciplinary action, a review of his practice, or a hearing
Require that lawyer be honest and candid ; encourage settlement ; not assist in fraud, dishonest or illegal
conduct
Lawyer has obligation to keep information confidential (must be full communication for effective legal
representation)
Duty to avoid conflicts of interest, including conflicts when changing law firms
Lawyers required to only charge fair and reasonable fees, disclosed in a timely fashion
Lawyers should not withdraw from representation except where there is good cause and after notifying client
Fall 2011, McGill University
Judicial Institutions and Civil Procedure
Me Geeta Narang
CONFLICTS OF INTEREST
MACDONALD v MARTIN ESTATE (SCC, 1990) ‘case of Dangerfield changing law firms’
o Thompson law firm held ineligible to continue to act after Dangerfield joined it
o Three competing values: (1) high professional standards, (2) litigant’s right to choose
counsel of choice, (3) desirability of mobility in the legal profession
o Standard is whether reasonably informed member of the public would be satisfied that no
confidential info would be used ; (1) did lawyer have any confidential information, and (2) is
there a risk that risk will prejudice client
o Might be able to rebut presumption of prejudice through independently verifiable measures
like “Chinese Walls” or “cones of silence”
BEYOND CONFLICTS OF INTEREST TO THE DUTY OF LOYALTY (Richard DEVLIN and Victoria REES)
o R v Neil means Canada recognizes positive duties in legal ethics (i.e. duty of loyalty), more
than avoiding conflicts of interest
o Concern about “business model of the law firm” (issues with loyalty, mobility, etc.)
BARREAU DU QUEBEC
FINNEY c BARREAU DU QUEBEC (SCC, 2004)
o Finney launched claim against Barreau alleging breach of obligation to protect public
(took long in disbarring extremely incompetent and procedurally-abusing lawyer)
o Professional orders created to protect public through (1) inspection and (2)
disciplinary action; Barreau has rebuttable immunity
o Prosecution possible if serious carelessness or recklessness (case here on facts)
LAWYERS IN THE NEWS
PARIZEAU c BARREAU DU QUEBEC (QCCA, 2011)
o Parizeau désinscrite du Barreau en 1994, tente de se faire réinscrire et est
initialement refusée pour n’avoir pas démontré les qualités requises.
o Comité a excédé les limites de sa mission (70.4 Loi sur le Barreau) en focalisant sur
son passé ; s’est comporté comme comité de discipline
THE ‘CIVILITY’ ISSUE
CIVILITY : TEN LITIGATORS TO WATCH OUT FOR (Wendy MATHESON) (comic)
o (1) Rambo Litigator, (2) Fighting Fire with Fire Litigators, (3) The Showman, (4) The Novice,
(5) The Mimic, (6) Stressed Out Litigator, (7) The Pawn, (8) The Junior, (9) The Bully, (10) The
Fair Weather Professional
Fall 2011, McGill University
Judicial Institutions and Civil Procedure
Me Geeta Narang
COUNSEL’S DUTY OF CIVILITY (Michael CODE)
o Civility is essential element of right to fair trial (should be enforceable right)
o Solutions: (1) early intervention of judges, (2) report to Law Society, (3) award of costs, (4)
cite counsel for contempt
CURRENT CRITICISMS OF LAWYERS
INTERVIEW WITH PHILIP SLAYTON (Kate FILLION for MACLEANS)
o P. Slayton discusses lawyers ; they have difficulties, esp. in big firms, because clients means
big money and career opportunities ; flawed disciplinary process for lawyers in Canada ; says
there is a lot of overcharging
THE LEGAL PROFESSION IN A SMART AND CARING NATION: A VISION FOR 2017 (Hon. David JOHNSTON)
o Social contract for monopoly of practice of law
o Keep in mind (1) lawyer and justice (backlog in cases), (2) lawyer and trust (serve clients and
professional appearance), (3) lawyer and education (include cognitive, social and ethicalsocial), (4) lawyer and social need (simplify legal proceedings, unbundle, increase pro bono),
(5) lawyer and firm (move between public and private domains), (6) lawyer and public
service
5) The Adversarial vs. the Inquisitorial Model of Civil Adjudication
Discussed throughout term
6) The Principle of Open, Public Courts
Importance of press (“the public”); litigants have right to ask for privacy (ex. 35 CCQ); Charter provisions on security and dignity
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13 CCP: sittings of court are public, but may be in camera for good morals or public order;
family matters are in camera in first instance
111.1 CCP: plaintiff must exercise legal rights under legal name (motion to institute proceedings)
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23 QC Charter: Everyone has right to public and impartial hearing
SIERRA CLUB v CANADA (SCC, 2002) ‘nuclear reactor affidavit case’
o Sierra Club seeks judicial review of Atomic Energy of Canada actions; as proof, AECL senior
manager files affidavit with confidential sections; Sierra asks for release of affidavit so they
can cross-examine; AECL seeks confidentiality order (to have info restricted to parties)
o Confidentiality order granted, per modified Dagenais/Mentuck test:
1. Ban necessary because serious risk to proper administration of justice, and
alternative measures will not prevent the risk (no alternatives)
2. Beneficial effects of ban outweigh bad (proportionality test)
o Here, (1) serious risk to commercial interests, alternatives are not reasonable or effective
and (2) ban is fairly minimal intrusion into open court rule, and AECL would simply not
submit affidavit if it would have to be made public (right to full defence breached)
Fall 2011, McGill University
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Judicial Institutions and Civil Procedure
Me Geeta Narang
Court order to protect commercial interests possible, but in limited circumstances
Bref, right to fair trial and public interest in security
DAGENAIS v CANADIAN BROADCASTING CORPORATION (SCC, 1994) ‘case of mini TV series’
o Case of CBC trying to broadcast The Boys of St-Vincent, mini-series resembling situation in
child going on in Ontario; Dagenais and others seek injunction
o MAJORITY: No publication ban, what was sought was too broad (not proportional); Judicial
discretion in granting a ban must be exercised within the boundaries of the Charter
o GONTHIER DISS.: Series could simply be broadcasted later, at little commercial loss to CBC
o L’HEUREUX-DUBÉ DISS.: Procedural
VANCOUVER SUN (RE) (SCC, 2004) ‘case related to Air India trials’
o Open Court Principle is hallmark of democratic society, applies to all judicial proceedings
(guarantees integrity, maintains legitimacy and public confidence, freedom of expression)
o Presumption of openness; here, high level of secrecy asked for unnecessary (at end of
hearing judge to put in place mechanism to publicly release content as much as possible)
TORONTO STAR v ONTARIO (SCC, 2005) ‘sealed search warrants case’
o Crown requests order sealing search warrants (could identify confidential information,
interfere with criminal investigation)
o Held that Dagenais/Mentuck test applies to ‘pre-charge’ criminal proceedings; order should
be quashed (Crown unable to prove serious and specific risk)
BB c QUEBEC (QCCA, 1997)(optional)
o BB seeks to bring class action while staying anonymous
o Apply D/M test; BB did not prove that he would suffer serious prejudice if name made public
o Test: (1) necessary to avoid real risks of an unfair trial and (2) balance of conveniences
AB c VAILLANCOURT (QCCS, 2010) (optional) ‘cas de l’étudiant en médecine qui poursuit un docteur’
o AB cannot get confidentiality because no real risk and balance of risks favours open court
o Should be public interest in having anonymity, since public interest in open courts
B. CIVIL PROCEDURE (first instance)
1) The role of Procedure
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2 CCP: rules intended to render effective the substantive law ; should be interpreted to facilitate rather
than delay the normal advancement of cases
4.2 CCP: proportionality rule (time and costs proportionate to nature and purpose of action)
9 CCP: Judge can extend time limits, relieve party of consequences, parties can agree on timeline
HAMEL v BRUNELLE AND LABONTÉ (SCC, 1977)
Fall 2011, McGill University
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Judicial Institutions and Civil Procedure
Me Geeta Narang
Damages awarded to Hamel ; on cross-appeal, she seeks to increase the amount requested
per 500 CCP; requested rejected by QCCA
SCC looks at intention of legislator by looking at CCP globally; 523 CCP is part of attempt by
gvmt to allow any necessary amendments in trial or appeal to ensure objective trials
DISSENT: Appelate courts should not modify damage awards unless the amount is truly
excessive or insufficient
VACHON v AG (QUEBEC) (optional)
o V and R make DJ request of QCCS; QCCA says QCCS says they should have gone to the Social
Affairs Committee then gotten authorization to have a motion for evocation to Sp Ct
o 846-847 CCP (on evocation) are permissive, not mandatory; having nullity for some formal
defects goes against justice principles
2) Interest
Essentially, need (1) quality, (2) capacity, and (3) interest / allocation of resources, concern w judging only “live” issues
HIST: AG is only one who can sue in PI ; Thorson, McNeil, Borowski and Finlay quartet
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55 CCP: interest requirement to bring legal action
56 CCP: capacity requirement for legal action
59 CCP: must bring legal action in your own name (except class actions, the State)
453 CCP: can ask for declaratory judgment if interest in resolving a certain legal issue
462 CCP: can throw out request for declaratory judgment if insufficient interest
846 CCP: power of Sp Ct for evocation
FINLAY v CANADA (SCC, 1986)* ‘case of guy who received municipal, then provincial social assistance’
o Finlay alleges provisions of Social Allowances Act and Municipal Act violate a Manitoba
provincial undertaking to ensure its citizens can meet their basic needs
o F does not have direct interest; no interference with his private rights, doesn’t suffer
“special damage peculiar to himself”, no guarantee that remedies will help his situation
o F is granted public interest standing; he meets test in Thorson, McNeil and Borowski, and it
is not plain and obvious that he cannot succeed (so can’t be dismissed)
CANADIAN COUNCIL OF CHURCHES v CANADA (SCC, 1992)* ‘CCC challenging provision of Immigr. Act’
o CCC seeks declaratory judgment that new Immigration Act violates Charter and Bill of Rights
o Public interest standing is so legislation not immune from challenge ; need balance (avoid
waste of judicial resources)
o TEST: (1) Serious issue, (2) Genuine interest (3) No other way of bring about the case
BOU MALHAB v DIFFUSION MÉTROMÉDIA (SCC, 2011) (‘André Arthur and Taxi Drivers case’)
o QCCA gave permission to bring class action on behalf of Montreal taxi drivers whose mother
tongue is Arabic or Creole
Fall 2011, McGill University
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Judicial Institutions and Civil Procedure
Me Geeta Narang
No injury found: not enough to prove personal injury, huge size of group, most people
would not have believed racist comments
No compensation can be given for defamation where there is no proof of injury ; in a class
action, injury to each claimant as an individual must be proven, not just for the group of
individuals.
CANADIAN BAR ASSOCIATION v HMTQ (BCSC, 2006)
o CBA claims provision of legal aid in BC is inadequate; seeks i.e. declaration that BC required
to estbablsih and maintain a meaningful and effective legal aid regime, and that the regime
is subject to eligibility, coverage and quality of service req’ments
o Held that CBA has no interest; (1) no direct interest (not a litigant) and (2) no public interest
o Borowski test to obtain public interest standing to challenge legislation:
o (1) Serious justiciable issue as to invalidity of legislation
o (2) Plaintiff directly affected or has genuine interest in its validity
o (3) No other reasonable and effective manner to bring issue before the court
o CBA fails 1st and 3rd criteria: does not challenge any specific government decision, act or
statute (seeks sweeping review of program), and might be other ways
3) Parties
Parties control case; if judge decides on something not submitted, then it is ultra petita
Pf and Df must have quality/capacity/interest (are you suing the right person?)
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55-60 CCP : general requirements (interest, capacity, residency (etc.), associations)
115 CCP: designation by name (exceptions for government, some contracts, legal persons)
208-215 CCP: general rules for voluntary intervention (aggressive/conservatory)
216+ CCP: forced intervention
MULTIPLE PLAINTIFFS
(1) everyone brings separate case, (2) jointly-instituted claim [67 CC], (3) for mandataries, see 59 CCP
Forced intervention:
(1) mise en cause [216-217 CCP] – where necessary to resolve dispute
(2) defendant in warranty [219 CCP+] – to shift liability
Voluntary intervention:
(1) aggressive [209-210 CCP] – if two parties fight about something that is yours
(2) conservatory [209-210 CCP] – if to authorize, assist or represent a party
Intervener status:
[211-215 CCP] – (1) bring something new, (2) utility/necessity for scope of proceedings, (3) able to
make appropriate representation (i.e. interest), (4) parties must retain control of proceedings
PRUD’HOMME c RAWDON (QCCA, 2009)
o CCLA applies to intervene per 211 CCP (rules for asking to intervene) ; granted
o Ct finds allowing CCLA’s intervention might add to legitimacy of decision ; sets modalities
(i.e. time limits for intervention)
FONDS D’ASSURANCE DU BARREAU c GARIÉPY (QCCA, 2005)
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Lawyer Daigle sued by client for negligence ; Bar insurance becomes a party, brings motion
in forced intervention against another lawyer and an accountant
Motion denied: case was about Daigle’s professional negligence ; these other parties not
required to resolve this issue (i.e. it would actually be a disguised warranty!)
4) Court with jurisdiction
Two types of jurisdctions: (1) rationae materiae (subject-matter; public order), (2) rationae territoriae (can be K’ed out of)
Questions: (1) Does QC have jurisdiction?, and (2) Did parties consent to another jurisdiction?
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68 CCP: purely personal action can be instituted (1) where defendant has real or elected domicile, (2)
where the whole cause of action has arisen, or (3) where the contract which gives rise to the action was
made
69 CCP: for insurance, can institute proceedings where domicile of insured, or where loss of insured
property occurred
70-75.0.1 CCP: supplemental rules (family cases, tutorship, joinder, succession, several dfdnts)
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75 CCQ: domicile of a person is his place of principal establishment (see also 77, 307 CCQ [legal persons])
83 CCQ: parties can agree to jurisdiction by written agreement
1387 CCQ: contract formed when and where acceptance received by offeror
3134 CCQ: default jurisdiction is Quebec when defendant domiciled in Quebec
3135-3140 CCQ: related rules (can decline if asked, can stay ruling if case being held elsewhere)
Consumer Protection Act generally holds consumer contracts to be formed at consumer’s domicile
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AIR CANADA v MACDONNEL DOUGLAS (SCC, 1989)*
o Fire and explosion of AC plane in Dorval ; AC sues manufacturer (based in California) for
failing to give updates about defect in plane
o locus of ommission is where act (warning) should have happened (can sue in Mtl Sp Ct)
ULTRAMAR c LIVERNOCHE (QCCA, 1991)
o Ultramar brings ‘motion to decline territorial jurisdiction’ ; gas station in Trois-Rivières ;
Ultra head office in Montreal
o Sp Ct allows affidavit that K signed in T-R as new evidence to allow case to be brought in T-R
o Ct of Appeal holds that new evidence could not be allowed in a hearing on a motion ;
lawyers should have written from the start that K was formed in Tr-Rv
MANELLA c DUHAMEL (QCCA, 1987)
o D went to Florida, had accident ; when back in QC signed K with M, a Florida lawyer, who
allows case to be prescribed
o Court finds jurisdiction in QC ; K was formed in Quebec
DISTRIBUTION R-N c NATIONAL LOCATION D’AUTOS (Cour du Québec, 2002)
o Boy rents car in Mtl ; father added as guarantor, signs K in Abitibi and faxes it
o Jurisdiction where acceptance received (1387 CCQ), which was Pointe-Claire (Mtl)
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5) Joinder
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66 CCP: can join causes of action if recourses not incompatible or contradictory, if seek condemnations of
like nature, if not expressly prohibited and if susceptible of the same mode of trial
67 CCP: persons can join claims if same juridical basis or raise same points of law and fact ; court can
always make order to disjoin claims
270-273 CCP: rules for joinder of actions that have already started, if causes no undue delay or injury
6) Motion to Institute, Notice of Presentation, Service
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5 CCP: no judicial demand can be heard unless defendant has been heard or duly summoned
110 CCP: ‘one-size-fits-all’ motion (exceptions for contempt of court, habeas corpus, etc.)
111 CCP: motion to institute proceedings includes facts and conclusions sought
111.1-113 CCP: rules for motion to institute proceedings
119 CCP: notice to defendant must include (1) time limit to appear, (2) disclosure of exhibits, etc.
119.2-132 ; 138-139 CCP ; 140.1-146.0.2: general rules for service
123 CCP: service can be personal, can also be domiciliary (if co-defendants at same address, must serve
both separately), or at person’s business establishment
125 CCP: refusal of service counts as being served
138 CCP: if service impossible, judge or clerk can authorize special mode of service (rules)
 138(2) CCP: may in some cases leave copy at place of domicile without authorization
148 CCP: original motion to institute proceedings and notice to df must be filed before presentation ;
judgment cannot be rendered against a df who has not appeared or pleaded if originals not filed
Draft Bill to enact the ew Code of Civil Procedure
 Notification by public notice could be done by Internet, by technological means (special rules)
AMERICAN LEMANS SERIES v STROLL (QCCS, 2001)
o Lemans sues for $6M+ because Stroll cancelled race in Mont-Tremblant ; Stroll
unsuccessfully served at Westmount house, Ferrari dealership or at lawyer’s office
o L granted special mode of service (at Ferrari party, outside of normal hours)
o Judge has high level of discretion to take into account practical considerations of service
E… N… c J… M… (QCCS, 2011) (droit de la famille)
o Notice over Facebook allowed (Monsieur did not give an address to Madame)
o Monsieur did not appear, Ct allows decision in his absence
SAGUENAY c BÉDARD (QCCS, 2007)
o Saguenay filed motion for judicial review, but doesn’t put affidavit like required
o Bédard fails in motion to dismiss: procedural error has no impact (she was clearly made
aware of the lawsuit either way)
o Small procedural errors should not invalidate a case
o Notice in 119 CCP not imperative if causes no prejudice, affidavit not mandatory
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AUSTRALIAN COUPLE SERVED WITH LEGAL DOCUMENTS VIA FACEBOOK (Bonnie MALKIN)
o Special procedure allowed when unable to serve a couple, “no other way to serve”
7) The 180 day rule
Plaintiff who fails to inscribe on time is deemed to have discontinued the action [110.1, 274.2 CCP]. Need to ask for (1) “motion
to extend the 180 day delay” (before), or (2) “motion to be relieved of default to inscribe within 180 days” (afterwards; very
hard; use 2892, 2894, 2895 CCQ to avoid prescription; if you fail then there is res judicata).
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110.1 CCP: actions and applications must be inscribed within 180 days after service
274 CCP-274.2 CCP: general rules for inscription
274.1 CCP: inscription includes (1) names and addresses of parties and their attorneys, (2) list of exhibits,
(3) expected length of hearing, (4) list of witnesses (with exceptions to this rule)
274.3 CCP: must file within 180 days except if court extends time limit
8) Appearance
Manifestation of your presence in a file [149 CCP], generally must be done within 10 days [119 CCP].
If you don’t appear, you risk default proceedings when case is inscribed [192-197 CCP].
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149 CCP: defendant must appear at the court before expiry of time fixed
150 CCP: defendant may appear after time lapsed if inscription not yet filed
151 CCP: judge and clerk always have discretion to allow defendant to appear
192-197 CCP: general rules for when you fail to appear
192 CCP: if df fails to apper, can inscribe case for judgment by default, or undertake other proceedings
9) Date of Presentation and Agreement as to Conduct of Proceedings
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4.1 CCP: parties have control of their case ; must refrain from acting with intent of causing prejudice or
behaving in excessive or unreasonable manner
151.1 CCP: parties must negotiate an agreement as to the conduct of the parties ; must specify
arrangements between parties and timetable ; must cover prelminary exceptions, safeguard measures,
procedure for exhibits, planned incidental proceedings, etc. (see 151.1(3) CCP)
151.2 CCP: agreement is binding between the parties, but may be modified
151.3 CCP: parties must comply with timetable in agreement or face a penalty
151.4-151.8 CCP: rules for presentation of action or application (when, what)
10) Special Case Management
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4.1 CCP: court can order special case management
151.11-151.13 CCP: special case management where req’d by nature or complexity of proceedings (rules)
WEINBERG c CINAR (QCCA, 2005)
o Managing judge unavailable, asks that motions be heard by another judge; parties object
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Substituting judge was to held expeditiousness of procedure; must interpret procedural so
as to facilitate proceedings
11) Oral vs Written Defense
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175.1 CCP: default is written defenses
175.2 CCP: list of subject-matter for which oral is default (integrity of natural persons, trusts, etc.)
175.3 CCP: can agree to opt-out of written or oral defenses if parties agree
ATTILIO RAFFO DESIGN c DELHI-SOLAC (QCCA, 2005)
o Trial judge refused new laywer’s request to have written defense, and to file counter-claim
o QcCA: judges have wide powers, but should not affect right of parties to control proceedings
12) Motions in the Course of Proceedings
Motions judges consider: (1) is it public order?, (2) does it favour the proper and expeditious conduct or proceedings?
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78 CCP: to raise motion, must submit a motion of presentation at least one day in advance
88 CCP: any demand in a suit is made by motion, which must be supported by an affidavit
92 CCP: affidavit must be made by party himself, or by representative or agent
93 CCP: after party submits affidavit, it can be summoned to be examined on truth of its facts
159 CCP: preliminary exceptions and conclusions sought must be disclosed in writing ahead of time
184 CCP: plaintiff can raise preliminary exceptions against a defense or an answer
DECLINATORY EXCEPTIONS
163 CCP: jurisdiction ratione territoria (must be brought right away; if win simply transfer to right court)
164 CCP: jurisdiction ratione materiae (raise at any time)
EXCEPTION TO DISMISS AN ACTION (“motion to dismiss”)
165 CCP: lis pendens, res judicata, incapacity, lack of interest, unfounded in law (assuming facts are true)
 Lis pendens “identities”: same parties, same facts, same object/remedy [cf. 3155(4) CCQ]
166 CCP: in such a case, pf can ask for delay to remedy the ground (if fails, then action dismissed)
167 CCP: possibility of costs
DILATORY EXCEPTIONS (suspends all dates in the Agreement except the 180 day delay)
168 CCP: Motion for Particulars, Motion to Dismiss, and others
169 CCP: if plaitiff fails to comply w 168 CCP order in time, possibility of action being dismissed
13) Conservatory Measures
Purpose: that final judgment be enforceable and meaningful
INTERLOCUTORY AND PROVISIONAL INJUNCTIONS
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751-761 CCP: general rules on injunctions
751 CCP: def. Sp Ct order enjoining a person not to do something, or allowing a person to do something
752 CCP: interlocutory injunction (in meantime) at commencement of or during proceedings
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753 CCP: provisional injunctions (in case of urgency), which cannot exceed 10 days
756 CCP: order of interlocutory injunction must be served on opposite party
760 CCP: injunction remains in force even if appeal
RJR MACDONALD INC. V. CANADA (ATTORNEY GENERAL) (SCC, 1994) ‘THE CASE for interloc. meas.’
o Main proceedings about validity of Tobacco Pr. Contr. Act ; in meantime, Tobacco Cos would
need to spend $Ms to comply with (possibly invalid) law, bring ‘motion to suspend’
o Test for whether or not to grand interlocutory relief:
1. Serious challenge? (‘colour of a right’)
2. Irreparable nature of the harm? (final judgment cannot fix problem, i.e. abortion)
3. Balance of inconvenience to parties
o Tob. Cos fail on 3rd ground (importance of public health vs inconvenience of changing labels)
SAFEGUARD ORDERS
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46(2) CCP: courts have power to issue order to safeguard rights
754.2(3) CCP: if file for injunction incomplete, court can make any orders to safeguard rights of parties
AQLPA C. COMPAGNIE AMÉRICAINE DE FER ET MÉTAUX (QCCA, 2006)
O 760 CCP does not apply to safeguard orders because they are not injunctions; safeguard
orders do not stand notwithstanding appeals
MEASURES TO PRESERVE EVIDENCE AND PROPERTY
Exceptional type of order: Anton Piller orders (allowed by 20 and 46 CCP together)
Test for Anton Pillers is (1) extremely strong prima facie case, (2) very serious damage (potential or actual) to plaintiff), and (3)
“clear evidence” that df has evidence and that it would be destroyed before an inter partes hearing
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438 CCP: can ask when you fear that evidence will be lost/more difficult to acquire
441 CCP: motion must be served
CELANESE CANADA INC. V. MURRAY DEMOLITION CORP. (SCC, 2006) ‘ex of Anton Piller’
O Example of Anton Piller; in this case it was inappropriately executed (no proper inventory of
seized items, some parties inappropriately having access to sealed documents)
MOTION FOR SECURITY FOR COSTS
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65 CCP: plaintiff who does not reside in QC must give security for costs
152 CCP: if 65 CCP applies, then defendant can request that plaintiff give security for costs at time of presentation of
motion to institute proceedings
153 CCP: df can apply after motion to institute proceedings, but costs may be awarded against him
14) Pre-Trial Discovery
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396.1 CCP: no examination on discovery where amount claimed is less than $25,000
396.2 CCP: examinations are held as defined in Agreement between parties, either before or after filing defense
396.3-396.4 CCP: parties can submit objections to judge, who also has power to terminate any examination that is
excessive, vexatious or useless
397 CCP: who can be summoned for examination (pf, victim of accident, any other person if permission granted)
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398.1 CCP: whole or abstract of deposition can be introduced as evidence
402.1 CCP: no expert witness can be heard unless written report communicated and filed
FUOCO C. SOCIÉTÉ GÉNÉRALE DE FINANCEMENT DU QUÉBEC (QCCA, 2006)
o Permission to appeal decision refused ; discovery must be useful, must not be “fishing”, and
must be clear what case is about
JONES EQUIPMENT INC. C. TLD GAUTHIER (QCCA, 1997)
o Judge allows discovery hearing “à distance” ; refused because no CCP provision allows it
15) Pleadings
Note: discussion about “plain language movement”
GENERAL COMMENTS REGARDING PROCEEDINGS
76 CCP: state facts in frank, precise and brief manner
77 CCP: expressly plead any fact that might surprise
85 CCP: defense must admit any true fact
86 CCP: silence does not count as admitting truth
RIGHT TO AMEND
199 CCP: parties can amend at any time before judgment
200 CCP: if amendment, must first notify other party, who has opportunity to express opposition
MOTION TO INSTITUTE PROCEEDINGS (CLAIM, STATEMENT OF CLAIM)
110 CCP: actions and applications are introduced by motion to institute proceedings
DEFENSE (PLEA)
172 CCP: defendant can plead any defence of fact or law (extremely wide range), can also cross-claim
175.1 CCP: defense filed in writing as a rule
ANSWER
182 CCP: plaintiff can file an answer in the time determined
183 CCP: party in defense or answer can allege any material facts
INSCRIPTION FOR PROOF AND HEARING
274 CCP: any party can inscribe case if defence is in writing
274.1-178 CCP: other rules for inscription
16) Costs
Interim costs = advance costs awarded whether or not the party is successful at trial (test is (1) limited or no resources, (2)
special relationship between parties, and (3) presumption that party will get something
Costs include (1) disbursements [stenographer, expert, court stamp], (2) lawyer’s fees [fair and reasonable]
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65 CCP: if pf does not reside in QC, he must give security for costs
112-113 CCP: court costs must be paid when filing motion to insitute proceedings
152 CCP: df can ask for security for costs if 65 CCP applies
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477 CCP: losing party pays all costs, unless court decides otherwise or reduces them (also a CML tradition)
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480 CCP: party entitled to costs prepares bill in accordance to tariffs
TARIFFS
Tariff of Court Costs in Civil Matters and Court Office Fees* (see printout)
Tariff of judicial fees of advocates* (see printout)
VIEL C. ENTREPRISE IMMOBILIÈRE DU TERROIR LTÉE (QCCA, 2002) *PARAS 64-88
o Trial judge awarded $12,000 in damages, $300 in exemplary damages and $40,000 for
lawyer’s extrajudicial fees
o Respondents cannot claim extrajudicial fees because appellant did not abuse right to
justice at any time during the proceedings
o This is true even if party abused K or XK right before proceedings, which led to lawsuit
o Possible in CML, but Quebec Tariffs do not make provisions for this except in cases of
abuse of procedure (ex. multiple dilatory or futile motions to incur costs for opponent)
BRITISH COLUMBIA (MINISTER OF FORESTS) V. OKANAGAN INDIAN BAND (SCC, 2003)*
o 4 Indian bands log on Crown land without authorization; Ministry of Forests serves stopwork order; Band claims aboriginal title, but does not have resources to go to trial so
wants summary judgment or order that Crown pay legal fees and disbursements
o MAJORITY: Costs usually to indemnify successful party for expenses sustained in
defending a claim or pursuing a valid legal right; also to penalize behavior of parties;
discretionary power
o Public interest litigation (i.e. Charter litigation) important and should be made accessible
o Test for interim costs in public interest litigation
1. Party cannot afford and no other realistic option – impecuniosity
2. Claim prima facie meritorious
3. Issues of public importance, and have not previously been resolved
4. (Award of interim costs not unfair burden on defendants)
o
DISSENT: Interim costs are judicially imposed legal aid, and should be left to legislature
ARCHAMBAULT v SOUS-MINISTRE DU REVENU DU QUÉBEC (sept. 16, 2011)
o A suing for $12.7M after QC claimed unpaid taxes, ostensibly because of an accounting
error, and then seized his company’s assets
o A awarded $325K to help him pay for his lawsuit
16.2) Provisional Costs in Quebec
HÉTU C. NOTRE-DAME-DE-LOURDES (MUNICIPALITÉ) (QCCA, 2005)
o Dalphond J : Apply 46 CCP : (1) dépourvu de ressources, (2) procédure de l’autre paraît
prima facie abusive (different from Okanagan), bref, (3) circonstances suffisamment
spéciales
o Pelletier J : power comes from certain statutory instruments
MAGIL CONSTRUCTION (SYNDIC DE) (QCCA, 2005)
o Applies Lebel J’s criteria from Okanagan Indian Band
o Criteria less stringent for public interest or access to justice litigation than normal cases
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17) First Instance Proceedings in Ontario (see Ontario Rules of Procedure)
Differences: QC CPP is an act of legislature / ON Rules are regulations made by committee
ON Rules seem to be moving away from the traditional justice system (i.e. mandatory mediation)
Rule 1.02 (1)
- Rule 1.03 – all
- Rule 1.04 – all
- Rule 1.06 – all; and look at www.ontariocourtforms.on.ca “Rules of Civil Procedure Forms”
- Rule 2 – all
- Rules 5.01. 5.02, 5.03
- Rule 6.01
- Rule 13 – all
- Rule 14 – all and Form 14A at www.ontariocourtforms.on.ca
- Rule 16 – all
- Rule 17 – all
- Rule 18 – all
- Rule 20 – all
- Rules 24.1.01 to 24.1.17
- Rule 25 – all
- Rule 26 – all
- Rules 29.1 & 29.2
- Rules 31.03(1), 31.04(1), 31.05.1(1), 31.06(1), 31.10(1) & (2)
- Rules 37.01, 37.03, 37.05, 37.06 and Form 37A at www.ontariocourtforms.on.ca
- Rules 40.01, 40.01, 40.03
- Rule 46.01
- Rules 48.01, 48.02, 48.04(1), 48.05, 48.06, 48.07, 48.09, 48.12, 48.14, 48.15
- Rules 50.01, 50.02, 50.04, 50.05, 50.06, 50.10(1)
- Rules 56.01(1), 56.02, 56.03(1) & (2), 56.04, 56.05, 56.07
- Rules 76.01, 76.02, 76.03, 76.04, 76.12
- Rules 77.01, 77.04, 77.05, 77.08
18) Class Actions
N.B. Class actions must not create rights or change the substantive law (can only be procedural)
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1000 CCP: exclusive jurisdiction of Superior Court
1001 CCP: generally, same judge hears all proceedings relating to the same class action
1002 CCP: need authorization obtained by motion to institute a class action
1003 CCP: criteria for class action are (1) identical or similar questions of fact or law, (2) facts seem to
justify conclusions sought, (3) composition of group makes joinder difficult or impracticable and (4)
representative has capacity
1025 CCP: court must validate any proposed settlement
1027 CCP: final judgment binds all group (except those who requested exclusion from it)
WESTERN CANADIAN SHOPPING CENTRES V DUTTON (SCC, 2001)* ‘231 investors trying to immigrate screwed’
o Test for class action where no legislation:
1. Must have a clear, well-defined class
2. Common question of law or fact
3. Success for one must mean success for all
4. Class representant must be able to do the job (i.e. capacity)
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GUIMOND c QUEBEC (SCC, 1996)
o G seeks damages and DJ for invalidity of jail time for breaching Highway Safety Act
o No “colour of a right”: constitutional invalidity doesn’t also give damages (one or other!)
C. CURRENT ISSUES IN JICP
1) Proportionality
Why? (1) limited Ct resources, and (2) avoid perversion of justice system
See Quebec Code of Civil Procedure : article 4.2 & Ontario Rules of Civil Procedure: Rule 1.04
PROFESSIONALISM AND PROPORTIONALITY (Hon. Warren K. WINKLER)
o Heavily endorses values of proportionality and professionalism to ensure all members of
society can seek and obtain justice within the legal system
DUNN v WIGHTMAN (QCCS, 2006) (re Castor Holdings)
o Dunn, investor in Castor Holdings, brings ‘motion for directions’ on whether or not his case
will be binding on other similar cases that were temporarily suspended (ostensibly a stalling
tactic) ; D not allowed to bring new evidence
o Decision based on proportionality ; would be unreasonable to have same trial 30-40 times
o High $ involved does not justify unlimited access to the courts (clearly unreasonable here)
ONYX INDUSTRIES c ALCAN (2005 QCCS)
o Ct has power to transfer case to Chicoutimi, but transfer disallowed
o 4.2 CCP can’t be used to negate a right that exists in the CCP; should have used 75.0.1 CCP
2) Vexatious Pleaders and Abuse of Procedure
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54.1 CCP: Ct can declare an action as improper (clearly unfounded, frivolous, bad fait, vexatious conduct)
54.2-54.6 CCP: other rules for finding an action improper
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6 CCQ: every person is bound to exercise their rights in GF
7 CCQ: cannot exercise right in excessive or unreasonable manner, or so as to injure another
ACADIA SUBARU C. MICHAUD (QCCA, 2011)
o M made radio comments about used carsalespeople on eve of big autoshow ; doesn’t
answer notice of suit, which included threats ; 93 car dealers join, sue for some $930K
o M brings 54.1 CCP motion for dismissal ; motion’s judge reduces quantum of damages (54.3)
o QCCA says reducing damages inappropriate remedy because would bind trial judge
o Looks like abuse and pf failed to prove it is a legitimate case, brought for the right purposes
o QCCA orders security for costs from each dealer (creative way of judging their seriousness)
3) Unrepresented Litigants and Legal Aid
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BRITISH COLUMBIA V CHRISTIE (SCC, 2007)* ‘case of lawyer fighting 7% legal services tax’
o C challenges C’al validity of tax by limiting access to justice, contrary to the rule of law
o No general constitutional right to legal aid; only C’al right to a lawyer in criminal context (s
10(b) of Charter dealing with arrest and detention), or where life, liberty and security of the
person are at stake (s 7 of Charter)
o Right to legal aid would be too broad, create significant costs, make procedural overload
o Rule of law only (1) law is supreme over everybody, (2) creation and maintenance of positive
laws and (3) r’ship between State and individual regulated by law
STATEMENT OF CLAIM OF THE CBA in Canadian Bar Association v British Columbia
4) Other means of resolving disputes
WHY PEOPLE TURN AWAY FROM CT SYSTEM AND TRADITIONAL LEGAL MEANS OF RESOLVING DISPUTES
WHAT OTHER MEANS EXIST?
a. Amicable agreements in the context of legal proceedings (“out of court settlements”)
b. Mediation
c. Judicial Mediation [151.14+ CCP]
d. Collaborative justice (weird Californian thing for family cases)
e. ADR (catch-all term)
ARBITRATION: HOW DOES IT FIT THE TRADITIONAL JICP?
f. Arbitration (940+ CCP; arbitrators have power over their own proceedings [944.1 CCP]; homologation required
[946 CCP])
THE PRIVATIZATION OF ADJUDICATION (Martin TEPLINSKY)
o Change from value- to time-based billing increased costs a lot (rewards energy, not skill)
o ADR is mainstream (ex. ON ADR Chambers)
o Pros: power to select judge, case starts on time, parties can tailor the procedure
o Concerns: price of adjudicator, no appeals,
CONSENSUAL ARBITRATION IN QUEBEC (Prof. Frédéric BACHAND)
o Def. when parties submit dispute to arbitrator to make final and binding decision
o Why? Int’l disputes, confidentiality of proceedings, general flexibility
o Why not? Difficult if multiple parties, no power to summon witnesses, etc.
QUEBEC COURTS CONFIRM THE AUTONOMY OF ARBITRAL PROCEDURE (A. HUSSAIN)
o Courts will not intervene in arbitrators’ procedural decisions
VARIOUS ARTICLES (Duncan GLAHOLT)
o Advocates conciliation and arbitration in construction industry
o Suggests arbitrators have (1) short time limit to decide, (2) should have power to summon
witnesses, and (3) pushes for “paper trial”
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5) Crisis in JICP
UNE JUSTICE FOR THE HAPPY FEW (Dominique FORGET)*
o Declline in number of cases brought in Quebec, too expensive (ex. lawyer fees)
o Often will reduce claims under $7,000 to go to Small Claims
o Issue of complicated language (cf. Plain Language Movement)
o Importance of mediation in form of Conférences de règlement à l’amiable
o Issues with hourly billing (ex. pressures on new lawyers to bill some 1800 hrs yearly)
THE VANISHING TRIAL (Patricia Lee REFO)*
o Less cases are being tried in US federal courts, more jury trials too
o Why? Crime laws make plea deals more attractive, trials too long and expensive
o Issues with privatization? Less competent lawyers, less diversity of judges in arbitration
THE VANISHING TRIAL (Hon. Warren K. WINKLER)*
o Pros: arbitration less formal, arbitrators have more flexible timetables, arbitrators are seen
to have ‘areas of strength’
o Cons: less new jurisprudence, less experienced litigators, indicates failure of justice system
o Importance of Simplified Procedure (many cases are simple, straightforward)
D. OUTLINE OF HOW CASES PROGRESS IN QUEBEC
NORMAL PROGRESSION
Motion to institute proceedings – Arts. 111, 119
Appearance – Art. 149
Negotiation of an agreement as to the conduct of proceedings -- Art. 151.1
Presentation of an action – Arts. 151.4, 151.6
Preliminary Exceptions – Art. 151.5
Examination on Discovery – Arts. 396.1+, Art. 396
Defence – Art. 172
Examination on Discovery – Art. 398
Answer – Art. 182
Inscription for proof and hearing – Arts. 274, 274.1, 274.2
Pre-Trial conference – Art. 279
POSSIBLE CHANGES TO NORMAL PROCEEDINGS
Amendments to the proceedings – Art. 199. This can be at any stage of the proceedings
Fall 2011, McGill University
Judicial Institutions and Civil Procedure
Me Geeta Narang
Settlement Conference – Art. 151.15. This can be done at any stage of the proceedings.
Safeguard Measures – Art. 752(2). Interlocutory injunctions or provisional measures to safeguard a
party’s rights pending trial