INTRODUCTION TO CIVIL LITIGATION .................................................................... 2
  WHAT IS CIVIL PROCEDURE? ............................................................................... 2
  MODELS OF LITIGATION ......................................................................................... 2
  LITIGATION: JURISDICTION ................................................................................... 5
  LITIGATION: THE COURT SYSTEM IN ONTARIO .............................................. 5
THE ECONOMICS OF LITIGATION: COSTS AND FEES ....................................... 5
  COSTS PAID TO MAINTAIN THE SYSTEM .......................................................... 5
  COSTS PAYABLE TO ANOTHER PARTY ............................................................ 6
  COSTS PAYABLE BY A CLIENT TO THEIR LAWYER ...................................... 9
COMMENCEMENT OF PROCEEDINGS I ................................................................ 11
  GENERAL PRE-LITIGATION CONSIDERATIONS ............................................ 11
  1. CONDITIONS PRECEDENT .............................................................................. 11
  2. STANDING ............................................................................................................ 12
  3. JURISDICTION:.................................................................................................... 12
  4. LIMITATIONS ....................................................................................................... 13
  5. ORIGINATING PROCESS ................................................................................... 15
  6. SERVICE: RULE 16 ............................................................................................ 16
  FORUM NON CONVENIENCE ............................................................................... 17
COMMENCEMENT OF PROCEEDINGS II ............................................................... 20
  RESPONDING TO AN ORIGINATING PROCESS.............................................. 20
  ENTITLEMENT TO SUE & BE SUED.................................................................... 21
  JOINDER OF CLAIMS AND PARTIES ................................................................. 22
  Relief Against Joinder ............................................................................................ 25
  RES JUDICATA ......................................................................................................... 25
CLASS ACTIONS:......................................................................................................... 32
  POLICY BEHIND CLASS ACTIONS ..................................................................... 32
  FRAMEWORK FOR CLASS ACTIONS IN ONTARIO ........................................ 32
  SUPREME COURT OF CANADA TRILOGY ....................................................... 33
  NOTICE ....................................................................................................................... 38
  OPTING OUT.............................................................................................................. 38
  DISCOVERY ............................................................................................................... 38
  CONDUCT OF CLASS PROCEEDINGS .............................................................. 38
  ASSESSMENT OF DAMAGES ............................................................................... 38
  DISTRIBUTION OF MONETARY AWARDS ........................................................ 39
  SETTLEMENT ............................................................................................................ 39
  FUNDING ISSUES: ................................................................................................... 39
PLEADINGS I: CONTENT, PROCESS AND STANDARDS ................................. 40
  FUNCTION OF PLEADINGS ................................................................................... 40
  FORM AND CONTENT OF PLEADINGS –RULE 25.06 .................................... 41
& THIRD PARTY CLAIMS ........................................................................................... 45
  AMENDING PLEADINGS ........................................................................................ 45
  The Power of the Court to “Reconstitute Action” ........................................... 46

  DEFENDANTS ABILITY TO OBJECT TO JOINDER ......................................... 46
  DEFENDANT EXPANSION OF LITIGATION ....................................................... 47
  COUNTER CLAIM VS. SET OFF ........................................................................... 49
PROCESS MANAGEMENT AND DISPUTE RESOLUTION: ................................ 51
  RULE 49: OFFERS TO SETTLE ............................................................................ 52
  RULE 77: CASE MANAGEMENT .......................................................................... 55
  RULE 24.1 MANDATORY MEDIATION ................................................................ 57
  RULE 78: NEW CIVIL CASE MANAGEMENT IN TO ......................................... 59
  INTRODUCTION TO DISCOVERY......................................................................... 60
  RULE 30: Discovery of Documents ..................................................................... 61
  PRIVILEGE ................................................................................................................. 66
MEDICALS AND INSPECTIONS ................................................................................ 71
  Examination for Discovery .................................................................................... 71
  Who May be Examined ........................................................................................... 72
  Examining Non-Parties with Leave ..................................................................... 73
  Scope of Examination ............................................................................................. 74
  The Breadth of Examination ................................................................................. 75
  PRIVILEGE: ................................................................................................................ 76
  Disclosure of Potential Witnesses ...................................................................... 76
  Expert Opinions ........................................................................................................ 76
  Divided Discovery .................................................................................................... 77
  THE USE OF EXAMINATION FOR DISCOVERY ............................................... 78
  ADDITIONAL FORMS OF DISCOVERY ............................................................... 78
DISPOSITION WITHOUT TRIAL ................................................................................ 79
  DISPOSITION WITHOUT TRIAL ............................................................................ 79
  Rules 23 and 38: Discontinuance, Withdrawal and Abandonment ............ 84
  RULE 2.01: Dismissal of an Action for Procedural Misconduct.................. 86
  MOTIONS .................................................................................................................... 86
PROFESSIONAL CONDUCT ...................................................................................... 90
  The Lawyer and The Client: Rule 2 ..................................................................... 90
  Competence: Rule 2.01........................................................................................... 90
  Quality of Service: Rule 2.02 ................................................................................. 92
  Confidentiality and Privilege: Rule 2.03 ............................................................. 92
  Conflict of Interest: Rule 2.04 ............................................................................... 93
  Fees and Disbursements: Rule 2.08 ................................................................... 94
  Withdrawal of Services: Rule 2.09 ....................................................................... 95
  Making Service Available: Rule 3.01 ................................................................... 96



             •   Civil procedure is a framework for resolving disputes in our society
                      o Societal interests and how we interact with each other influences the rules we set up
                          to govern dispute resolution
                      o Rules aren‟t static –they reflect societies values
                                i.e. today we heavily regulate unfortunate interactions b/w individuals, 50
                                    years ago we believed people would look out for themselves
             •   Civil procedure is a balance between efficiency and justice
                      o Of lawsuits that are stated 3-5% go to litigation, of conflicts very few end up as
                      o Any claim worth under $80,000 in Toronto isn‟t worth pursuing
                      o New rules focus on reducing cost and delay to make court more affordable and
                      o Increased access to reduced/abridged justice
                      o i.e. jury trials reduced/eliminated (core part of common law system of justice), forced
                          mediation often involves very non-legal methods how does this = justice?
             •   Methods of Alternative Dispute Resolution:
                      o Negotiation: agreement based model, private party only
                      o Mediation: private parties and third party –mediator attempts to facilitate
                          conversation, decision remains with parties
                      o Arbitration: arbitrator enforces settlement onto private parties, decision making done
                          by arbitrator, parties pick arbitrator
                      o Adjudication: public (don‟t pick judge) parties have very little control


Traditional Model                                            Inquisitorial Model
Judge plays passive/neutral role                             Judge plays highly active role –examines witnesses
Plaintiff decides boundaries of litigation                   Judge decides boundaries of litigation
Court waits for cases to be brought to it                    Judge decides when further information is needed
Classic liberal ideology –interplay between individual       Much greater focus on truth –greater emphasis on collective
rights                                                       rights

             Why the Traditional Model? Hanycz
             (a) Party Autonomy
             • Judges role is limited to cases brought before them
             • Parties have sole responsibility of defining disputes
             (b) Party Prosecution
             • Parties have the right to prosecute civil action
             • Parties have responsibility to move case forward
             • We accept this value based on two assumptions:
                 o Greater accuracy: two adversarial lawyers each doing their best work for their client will
                      have more accurate outcome than judge trying to source out information
                      BUT there is increasingly information that doesn‟t get before the court
                 o Greater acceptability: adversarial system with neutral judge leads to decisions that are
                      more acceptable to the community because parties have defined the litigation
                      BUT what if information is withheld or parties are unbalanced in resources
             • Do we really have a traditional system?
                 o Our bench is not always passive, waiting for cases to come before it (i.e. leave to appeal)
                 o Judges sometimes do seek out evidence that can affect perception of neutrality (i.e.
                      sometimes viewed as favoring one side over the other)

    o   Judges do sometimes advise counsel of areas where more evidence is needed (i.e.
        unrepresented plaintiffs)


1. Pre-Litigation:
• Begins with client coming to lawyer to discuss conflict –i.e. is there a possibility of settlement
• Lawyer and client must discuss the risk of litigation –i.e. does D have $, is the claim novel,
    costs of litigation
• Are there steps you need to take before you can sue –i.e. give notice, send demand letter

2. Deciding to Sue:
• There are two major considerations in deciding to sue:
        o Is there a cause of action?
        o Can the cause of action be proven?
• This stage also provides another opportunity for risk assessment

3. Selecting the Appropriate Court:
• There are three kinds of jurisdiction to consider when selecting a court:
        o Monetary Jurisdiction
        o Territorial Jurisdiction
        o Subject Matter Jurisdiction

4. Commencing the Proceeding:
• There are three options for proceedings:
        o Trial action
               • Commenced by statement of claim
               • This is where there are questions of fact, and possibly questions of law as
               • There are standard stages with all of the components such as discovery
        o Simplified procedure action
               • Commenced under Rule 76
               • Where less than $50,000 is being claimed it is mandatory
               • Where more than $50,000 is being claimed it is optional, however both
                     parties must agree
               • The reason that we have this track is that it is cheaper to get to a trial
                     because some of the steps are cut out, such as examination for discovery
               • This is more efficient, but there are fewer opportunities to test the evidence
        o Application:
               • Commenced by notice of action
               • This is a specific kind of proceeding where the material facts are agreed
                     upon, an the parties want a statement from the court on the state of the law
               • D will almost always resist application by disputing facts (try to spend P out
                     of litigation)
5. Pleadings:
• There are generally three types of pleadings in a civil action (written claims):
    o Statement of Claim:
         Prepared by P
         Must be served within 6 months onto each defendant –P will due multiple D‟s to
           reach $$
         The first page is a template which is on every statement of claim
         The first paragraph on the second page details the “prayer for relief”, i.e. what the
           plaintiff wants from the other side
         The claim is then laid out, including a summary of the material facts that establish the
           cause of action but NOT the evidence supporting those facts
         There are two reasons why we have a statement of claim:

                (a) To give the other side notice of the case against them
                (b) To give the court notice of the case being brought
                This helps to paint the outer boundaries of the action to prevent surprise &
                 reduce cost our system is designed to allow all parties to know the case
                 against them and push them toward settlement
    o Statement of Defence:
        Prepared by the defendant
        The defendant presents different facts which would negate the cause of action
        As with the statement of claim, the purpose of the statement of defence is to give
             notice to the plaintiff and the court of the defence that the defendant intends to raise
    o Reply to Defence:
        The plaintiff may respond to any new points raised by the defence
•   Note: in family law the pleading for the person initiating the claim is called petition

6. Discovery:
• Philosophy of discovery: each party is entitled to know the case against them by obtaining
    evidence before trial –avoid surprise & reduce cost
• Two types of discovery:
    • (a) Documentary Discovery:
           One party swears a list of all of the documents known to that party which are relevant
              to the issues in the pleadings, including those documents protected by privilege
           The privileged documents are included to give the other side notice in case they wish
              to challenge that privilege
           All of the relevant documents must then be produced, except for those over which
              privilege is asserted
    • (b) Oral Examination for Discovery:
           Each party puts themselves forward to answer questions
• All evidence must be given under oath or affirmation
• Why have discovery? H: this is an opportunity to force settlement and not waste time & $$ on
    trial, problem is that discovery comes after a lot of $ has already been invested so it‟s difficult
    to settle
• In response many jurisdictions (ON) have implemented forced mediation

7. Disposition Without Trial:
• There are 4 ways to dispose of action without trial:
• (a) Negotiate/Mediate Settlement:
     Most cases settle before trial but after discovery (this is the first time parties learn
        evidence to support claims)
• (b) Rule 21: Motion for Judgment
     This rule deals with a situation where some law is missing to make the case –t/f
        pleadings don‟t disclose a cause of action or defence
     Generally, something disclosed in discovery wipes out one parties chance of success
• (c) Rule 20: Motion for Summary Judgment
     This is a situation where the law is well established but the facts do not emerge in
        discovery to support the claim or defence
     Opposite of Rule 21
• (d) Default Judgment:
     This occurs where a defendant fails to deliver a statement of defence responding to the
        statement of claim
     The court will grant judgement, because they assume that the failure to defend is an
        admission of the claim

8. Case Management and ADR:
• Litigants are given timelines to conclude the proceedings –helps decrease costs, increase

•   ON has appetite to allow court to manage process
•   ADR is one of the methods of case management
•   H: are we moving toward an inquisitorial model with heavy court involvement

9. Pre-Tial Motions:
• mini trials to resolve small issues that occur during pre-trial process
• also called interlocutory motions, which means that they are interim rather than in the trial
• An example would be a motion to attack a claim of privilege so as to compel production
• These may be in front of judges or masters

10. Mode of Trial:
• In ON there are two modes of trial:
       o Trial by jury: judge decides law, jury decides facts (6 jurors in civil trial)
       o Trial by judge: judge decides fact & law
11: Judgment:
• Once judgment is handed down, it‟s up to winning party to execute award –figure out where
    assets are


•   There are three components to a courts jurisdiction:
       o (a) monetary: small claims court cap is $10,000
       o (b) subject matter: some courts aren‟t able to hear charter challenges etc.
       o (c) region: ON courts generally only have jurisdiction over ON matters


*See annotated chart



• Least important of the three areas of litigation economics
• Little is known about the extent to which various court fees offset the expenses of an action
Administration of Justice Act
• Sets up who pays for which fees (system or litigants)
• User funded fees: litigant pays i.e. statement of claim issued by the court, summons to
• Fees paid out of general revenue funds:
• Debate in literature as to whether more parts of process should be paid by user –should
   those who never use the system be paying for those who use it all the time?
       o Access to Justice: in our social welfare system we support things we value –should
            we increase the fees enough to avoid frivolous claims and have fee grant system?

Polowsky v. Home Hardware
• Appeal from a motion that Polewski made in small claims court requesting relief from being
    forced to pay the costs. He claimed that Small claims Court had discretion to waive the fees,
    and that in the alternative the failure to provide such discretion violated s. 15(1) of the Charter
    by discriminating against indigent claimants. His motion in Small Claims Court failed, and he
    appealed to the Superior Court.
Holding: Superior Court

•  Superior court has no jurisdiction to waive fees
•  There is no constitutional right to access to civil courts –precedent says that reasonable fees
   are permissible (H: fees seen as reasonable limit on access to justice)
• Charter s. 15(1) provides no enumerated grounds for poverty and that in the context of
   paying fees poverty could not be considered an analogous ground
• Applicant must establish differential treatment on basis of stereotypical characteristics
   through expert testimony (can‟t afford to pay court fees!)
Holding: Appealed to Divisional Court
• There is a constitutional common law (not Charter) right of access to justice
• This right is subject to the exercise of judicial discretion on issues of the merits of the case,
   and of financial circumstances that would trigger this right
• Because there is no such provision in the Courts of Justice Act, the Act must be amended
   within 12 months


Definition: means by which court shifts fees of litigation from one litigant to another

Jurisdiction to award costs:
• S. 131 of the Courts of Justice Act is the source of the authority of the court to award costs
         o Accordingly: “subject to the provisions of an Act or rules of court, the costs…are in
             the discretion of the court, and the court may determine by whom and to what extent
             the costs shall be paid” courts have discretion to have one litigant pay another‟s

The General Rule:
• The courts discretion to award costs is subject to Rule 57.01 which lists factors the courts
   should consider in deciding whether to award costs, to whom and how much:
• See Campbell (1927, English Court of Appeal)
      o “A successful defendant has no doubt, in the absence of special circumstances, a
           reasonable expectation of obtaining an order for payment of costs by the Plaintiffs;
           but he has no right to costs unless and until the court awards them to him, and the
           court has an absolute an unfettered discretion to award or not to award them. This
           discretion, like any other discretion, must of course be exercised judicially and the
           Judge ought not to exercise it against the successful party except for some reason
           connected with the case”
      o This principle applies equally to a successful plaintiff

RULE 57.01
(1)In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the
court may consider, in addition to the result in the proceeding and any offer to settle or to
contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the
party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
     • H: party should be compensated for amount of money it paid
(0.b) 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;
     a) the amount claimed and the amount recovered in the proceeding;
         • H: if you didn‟t come close to what you wanted you may not have “won”
         • Courts will often not award costs for novel claims
     b) the apportionment of liability;
     c) the complexity of the proceeding;
         • H: simplicity favours higher cost awards
     d) the importance of the issues;

     e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration
          of the proceeding;
     f) whether any step in the proceeding was,
             I. improper, vexatious or unnecessary
            II. taken through negligence, mistake or excessive caution
     g) a party‟s denial of or refusal to admit anything that should have been admitted;
     h) whether it is appropriate to award any costs or more than one set of costs where a party,
             I. commenced separate proceedings for claims that should have been made in one
            II. in defending a proceeding separated unnecessarily from another party in the same
                 interest or defended by a different solicitor, and
           III. any other matter relevant to the question of costs
• Re: III H: Certainty in law is very important, which is why there is the list, but there also
     must be discretion and flexibility, which is why there is the little tag which says that the court
     can consider anything else as well
(2) The fact that a party has been successful does not foreclose the possibility of that party
paying costs
(3.1) The Court may defer fixing costs at the end of a proceeding and may choose, instead, to
refer that determination to an assessment officer
• H: This is not the norm, because it is more efficient to have it done by a master
(7) The court shall devise and adopt the simplest, least expensive and most expeditious process
for fixing costs and, without limiting the generality of the foregoing, costs may be fixed after
receiving written submissions, without the attendance of the parties

RULE 57.07
(1) Where a solicitor for a party has caused costs to be incurred without reasonable cause or to
be wasted by undue delay, negligence or other default, the court may make an order,
    a) disallowing costs between the solicitor and client or directing the solicitor to repay to the
       client money paid on account of costs;
    b) directing the solicitor to reimburse the client for any costs that the client has been ordered
       to pay to any other party; and
    c) requiring the solicitor personally to pay the costs of any party

Policy on costs:
• Courts trying to make risks of trial high –push toward settlement and discourages launching
• Court award costs for two main reasons:
        o Sanction: costs impose sanctions on the loosing party –assumption that if you lost
            you were unreasonable and should have settled
        o Compensation: costs of litigating an action are so prohibitive that if costs weren‟t an
            option good cases may never go to court –costs are a way to compensate good
• Costs partially indemnify parties

Pittman Estate v. Bain (Ont. Gen. Div.)
• Factors Considered in apportioning costs:
        o Amount claimed
            o The plaintiff sought more than $2 million in their statement of claim, and ended
                up with $630,000, significantly less than they sought
        o Apportionment of liability
            o The percentage of the damages awarded against each of the three defendants is
                also taken into account when considering how much to award against them
        o The complexity of the proceeding
            o It was more complex with respect to certain defendants than to others
        o Importance of the issues

             o   The importance of the proceeding and the pressure on counsel to ensure that
                 their case presentation was thorough are factors that affected the duration of the
                 trial, and accordingly its costs
        o    Conduct of the parties
             o The plaintiffs‟ counsel could have exercised more care in his conduct of the
        o    Distributive costs
             o This gives costs on a successful issue to the successful party –in this case
                 victory was achieved by certain parties on certain core issues
        o    Counsel fees
             o Court allowed $175 hourly rate for senior counsel –going rate was $300-$400
             o Court reviewed time spent and dispursements at certain stages of trial

British Columbia (Minister Of Forests) V. Okanagan Indian Band (Scc, 2003)
• Natives logging land and claim title over it, Crown served Indian Bands with a stop work order
• Bands could not afford to litigate, and argued that the Crown should pay interim costs to fund
     the action in advance on the grounds that the bands lacked the resources to pay prevented
     access to justice
Holding: Dismissed Crown appeal
• Courts have inherit jurisdiction to order award of interim costs -three conditions necessary:
              o Party seeking the order must be poor to the extent that, without such an order,
                  that party would be deprived of the opportunity to proceed with the case
              o Claimant must establish a prima facie case of sufficient merit to warrant pursuit
              o There must be special circumstances sufficient to satisfy the court that the case
                  is within the narrow class of cases where court should exercise this extraordinary
• Court found that the Bands met these criteria

Amount Recoverable
• Costs are payable on one of two scales:
          o Partial indemnity (party and party)
                  Majority of cases awarded on partial indemnity, which normally covers
                     between 30 and 60 percent of costs
                  Costs are not generally intended to make the winner whole again, as
                     there is supposed to be a deterrent against litigation
          o Substantial indemnity (solicitor and client)
                  Substantial indemnity amounts almost complete indemnification, and is
                     rarely awarded other than to signal the court‟s disapproval of the conduct
                     of a party or its counsel
                  This will also be the case where the litigation concerns a fund of money,
                     for instance a will; costs will be paid on a substantial indemnity basis out
                     of the fund
                  Courts will sometimes award SI costs against a party who has made
                     unfounded or unproven allegations of fraud or dishonesty

Young v. Young

“SI costs are generally awarded only where there has been reprehensible, scandalous or
outrageous conduct on the part of one of the parties.”
• It is not sufficient that the application has little merit or that costs are being paid for by a third
• Costs were also awarded against the lawyer at trial –overturned on appeal because costs are
    to be awarded as compensation not to punish lawyers. Even though the lawyer delayed

    proceedings in this case, such costs should only be awarded in very exceptional cases so
    lawyers aren‟t discouraged from acting to their full potential
•   Costs were also awarded against an intervening religious organization –these were also
    struck out on appeal. No evidence that P was induced into pursuing the cause in the
    interests of the organization so that they did this to escape costs –unnamed parties can have
    costs awarded against them but this isn‟t an appropriate case.

•   Indemnity v. non-indemnity systems:
           o With indemnity
                     The risk of having to indemnify the other side gives an incentive to settle
                     The gain from the possibility of the other side indemnifying you gives an
                        incentive to bring the case
                     Exacerbates the harsh character of all or nothing litigation
                     Discourages marginal and frivolous claims
                     May deter novel and meritorious claims
           o Without indemnity
                     The lower risk from the impossibility of a costs award against you makes
                        litigation more attractive
                     The lower payoff makes litigation less attractive
                     Discourages the litigation of small claims
                     With $ you may be more inclined to litigate frivolous claims


Traditional Model:
• Test found in Rules of Professional Conduct RULE 2.08: A lawyer shall not charge or accept
    any amount for a fee or disbursement unless it is fair and reasonable and has been disclosed
    in a timely fashion H: very vague
• Some Factors to be considered in determining what‟s fair and reasonable:
         o time and effort required and spent,
         o difficulty and importance of the matter,
         o whether special skill or service has been required and provided,
         o results obtained
• Fee: what lawyer charges client for their time
• Disbursement: costs lawyer incurs on behalf of client for their case
• Steps involved in traditional model:
         o Client instructs the lawyer to draft a statement of claim, serve the statement, etc.
         o Lawyer writes a letter of retainer to confirm instructions of a client, and details hourly
         o Lawyer must always operate within instructions of the client
• If client does not like the fee, he can have it assessed, where the fee is normally reduced

Contingency Fee Model:
• Lawyer takes case on with no money upfront in exchange for flat fee or a percentage of the
• Most common in class action litigation and personal injury
• Until recently contingency fee arrangements in ON were said to be invalid and unenforceable
   because the violated s.1 of the 1897 Champerty Act which outlawed champterty
• Maintenance: directed against those who for improper motives (i.e. meddling) become
   involved in litigation of others in which the maintainer has no interest
• Champerty: An aggressive form of maintenance where the maintainer is not only involved in
   litigation but also shares in its proceeds contingency linked b/c lawyer not connected with
• POLICY: in medieval times someone bringing frivolous claim would seek assistance of
   nobleman to maintain the claim because it was more likely to be granted by judge statutes
   prohibiting champerty were meant to protect administration of justice from this abuse.

•   Contingency fees have been allowed since 2002 based on two court decisions:

McIntyre v. Ontario (On. CA 2002)
Issue: Whether a contingency fee arrangement between the plaintiff‟s widow and her solicitors
offended the Champerty Act.
• Must read and interpret the Champerty Act in light of the evolving common law on the issue
• In order for a contingency fee to be champertous, the solicitor must have an improper motive
• The administration of justice is upheld by contingency arrangements by improving access to
• However, there may still be champertous arrangements when a fee overcompensates a

Raphael v. Lam (2002, On CA)
Facts: Plaintiff (L) entered into a contingency agreement with his solicitors. They settled his
personal injury for $2.5 million through mediation, plus $250,000 for costs and disbursements.
The solicitors charged the plaintiff, pursuant to the contingency agreement, $550,000. The
plaintiff had the account assessed and it was reduced to $230,000. The solicitors appealed the
assessment. It was upheld by the Superior Court. They appealed again.
Issue: Is the contingency fee arrangement enforceable under s. 15 of the Solicitors Act?
Decision: Decision for the solicitors; their original fee was fair and reasonable, in particular
because of the degree of success.
• S. 16 expressly permits contingency arrangements
• S. 17 where the agreement is made in respect of past or future litigation, amount payable
    shall not be received until the agreement has been examined and allowed by an assessment
• S. 18 assessment officer may require that court review the agreement if it appears to be “not
    fair and reasonable”
• S. 24 allows the court to declare the agreement void if not fair and reasonable
• Therefore to determine enforceability court considered:
    - Fairness: of the way the agreement was obtained
              o Look to facts of discussion, letters that led to arrangement etc.
    - Reasonableness of terms of the agreement:
              o Time expended by solicitor
              o Legal complexity of the matter at issue
              o Results achieved
              o Risk assumed
• H: The Court focused heavily on the results achieved
• The Burden is on the lawyer to show that the contingency fee is fair and reasonable.

Rules of Professional Conduct
• Revised in 2002 to allow for contingency fee arrangements subject to any regulation which
    sets max %
• Rule 2.08 (3) and (4) provide guidelines:
         o Not allowed in family law, criminal or quasi-criminal matters.
         o Must include written and signed agreement stating way fee will be calculated and
             advise client that they can apply to Superior Court to determine is agreement is “fair
             and reasonable”
• Ontario Regulation 195/04 2004 Contingency Fee Arrangement must contain statement
    indicating that options other than CFA‟s have been discussed, client has elected CFA, client
    retains right to make all critical decisions regarding conduct of litigation


Seven pre-litigation considerations:
1. Conditions Precedent
2. Standing
3. Jurisdiction
4. Limitations
5. Forum
6. Originating Process
7. Service


•    (A) Is a settlement is possible?
             o Rule 2.02 (2) Rules of Professional Conduct:
             o “A lawyer shall advise and encourage the client to compromise or settle a dispute
                   wherever it is possible to do so on a reasonable basis and shall discourage the
                   client from commencing useless legal proceedings”
             o Rule 2.02(3) Rules of Professional Conduct:
             o “The lawyer shall consider the use of alternative dispute resolution (ADR) for
                   every dispute, and, if appropriate, the lawyer shall inform the client of ADR
                   options and, if so instructed, take steps to pursue those options.”
•   (B) Intake Interview:
         o Discuss key documents available, position client has taken and any relevant facts
•   (C) Does the client have a reasonable chance of success?
         o Substantive Law:
                    Is there a cause of action/relevant defence?
                    Novel claims will factor here –can you analogize to recognized cause of
                    Candidly assess risk with client
         o Evidentiary Issues:
                    Is there evidence to support the material facts alleged in the statement of
                        claim and/or statement of defence?
         o If claim is successful are there deep pockets? Can you collect on court order?
         o Re-evaluate chances of success throughout process–can change at any point in


•   There may be specific conditions precedent required before litigation can be commenced:
•   (A) Demand before action:
        o common law, statutory or contractual requirement that a demand be made before
            litigation is commenced, otherwise court will strike out claim
        o purpose = to uphold freedom of contract
•   (B) Conditions in a contract:
        o some contracts specify that parties must resolve disputes arising from them through
            arbitration or must accept mediation before commencing litigation
        o I.e. Rogers: proforma contract by signing up for service you agree to be restricted
            to arbitration
•   (C) Leave of the court:
        o some actions can‟t be commenced without leave of court (i.e. liabilities under
            Securities Act)
•   (D) Notice required by statute:
        o many statutes require notice be given before action is commenced (i.e. Public
            Transportation and Highway Improvement Act –to sue Crown for accident due to
            road damage -10 d notice)


•   Standing = your ability to sue
•   Established in one of two ways:
          (a) Private Standing: Direct violation of individuals right allows injured party to seek
          compensation through courts
          • Traditional principle AS OF RIGHT
          (b) Public Standing: Allegation that public rights/public interest has been violated
          • Potential P must be granted public interest standing by court
•   “Ttrilogy” (Thorson; McNeil; Borowski), the Supreme Court established a 3-part test that a
    litigant must satisfy to be granted public interest standing:
                   o There must be a serious issue raised to the validity of the legislation/action in
                   o P must demonstrate that they‟re directly affected by legislation or that they
                       have genuine interest in legislation
                   o There must not be, on a balance of probabilities, another reasonable and
                       effective way to bring the issue before the court -MOST IMPORTANT PT.

Canadian Council of Churches:
Facts: The Council, a body responsible for coordinating the protection and resettlement of
refugees, brought a Charter challenge to the Immigration Act, in which the government changed
the definition of refugee to make it more difficult to immigrate. The Council sought public interest
standing on behalf of the general public, and refugees specifically
(a) Does the Charter require that test for public interest standing be relaxed?
(b) Whether the Council, as an organization providing services to refugees, should be granted
public interest standing.
(a) Public interest standing test from trilogy should continue to apply because of these policy
    • Application of scarce judicial resources
    • Need to screen out “busy bodies”
    • Concern that courts should hear arguments of those most directly affected by
         impugned legislation/action
(b) Standing should NOT be granted in this case:
    • First two branches met but court held that, on balance of probabilities, motion was NOT
         the only reasonable and effective way to bring issue before the court
Ratio: The purpose of granting public interest standing is to ensure that legislation is not
immunized from challenge; however if a person who is directly affected can bring a claim, that is
the best


•   Considerations for determining jurisdiction:
    1. Territorial: Ontario cases must be heard in Ontario
    2. Monetary: i.e. Small Claims, Ontario CA, Divisional Court
    3. Subject Matter: Family, Criminal etc.

 (A) Superior Court:
• Jurisdiction of the Superior Court is defined by s. 11 of the Courts of Justice Act:
        o Court has all of the jurisdiction, power and authority historically exercised by court of
            common law and equity in England and Ontario
• Wellesly St. East Lt. v. Fundy Bay Builders
        o A superior court of general jurisdiction:

                    “Has all of the powers that are necessary to do justice between the parties.
                     Except where provided specifically to the contrary by statute, the Court‟s
                     jurisdiction is unlimited and unrestricted in substantive law in civil matters”
 (B)Ontario Court of Justice:
• Inferior statutory court
• Exercises all powers of provincial courts
• Less jurisdiction than Superior Court of Justice
(C) Small Claims Court:
• S. 23 of the CJA
        o Jurisdiction over any action for the payment of money or personal property whose
            value does not exceed $10,000

4. LIMITATIONS  good example of balancing efficiency and access to justice

•   In Ontario period is set out in Limitations Act:
        • Limitation period is 2 years (used to be 6 before this act came into effect 2004)
        • Certain statutes still able to have their own limitations: EXAM
•   Policy underlying statutory limitation periods:
        • Fairness to D: has interest in not being subjected to “ancient claims and given timely
        • Fairness to P: has interest in securing compensation
        • Efficiency and Integrity of the Justice System: system must be seen as fair which
            requires deciding claims while solid evidence is available
                  i. There is also the cultural idea that at a certain point disputes should be
                 ii. At a certain point, the social standard bearing on the case change over time
                iii. A successful limitation period defence robs the plaintiff of his day in court

Discoverability Principle at Common Law: Central Trust Co. v. Rafuse
• When does the clock begin running?: “A cause of action arises when the material facts on
    which it is based have been discovered or ought to have been discovered by the plaintiff by
    the exercise of reasonable diligence”
• When you have knowledge of material facts or who‟s at fault you‟re held accountable to act
    diligently in pursuing a claim

Limitations Act, 2002
Unless the Act provides otherwise, a proceeding shall not be commenced in respect of a claim
after the second anniversary of the day on which the claim was discovered

(1) A claim is discovered on the earlier of:
(a) The day on which the person with the claim first knew:
            I. That the injury, loss or damage had occurred
           II. That the injury loss or damage was caused by or contributed to by an act or
          III. That the act or omission was that of the person against whom the claim is made,
          IV. That, having regard to the nature of the injury, loss or damage, a proceeding would
               be an appropriate means to seek to remedy it; and
(b) The day on which a reasonable person with the abilities and in the circumstances of the
person with the claim first ought to have known of the matters referred to in clause (a)
(2) A person will be presumed to have known of the matters referred to in 1(a) on the day the act
or omission on which the claim is based took place, unless the contrary is proved

S.6: The limitation period established by section 4 does not run during any time in which the
person with the claim is:
(a) a minor; and
(b) not represented by a litigation guardian in relation to the claim
S.7 (1) The limitation period established by section 4 does not run during any time in which the
person with the claim is:
(a) incapable of commencing a proceeding in respect of the claim because of his or her
physical, mental or psychological condition; and
(b) not represented by a litigation guardian in relation to the claim. 2002, c. 24, Sched. B, s. 7
7 (2) A person shall be presumed to have been capable of commencing a proceeding in respect
of a claim at all times unless the contrary is proved

(2) No proceeding shall be commenced in respect of any claim after the 15th anniversary of the
day on which the act or omission on which the claim is based took place NOT date of
discovery, DATE of injury!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
The limitation period established by subsection (2) does not run during any time in which:
(a) the person with the claim is:
         (i) incapable of commencing a proceeding in respect of the claim because of his or her
         physical, mental or psychological condition, and
         (ii) not represented by a litigation guardian in relation to the claim;
(b) the person with the claim is a minor and is not represented by a litigation guardian in relation
to the claim; or
(c) the person against whom the claim is made:
         (i) wilfully conceals from the person with the claim the fact that injury, loss or damage has
         occurred, that it was caused by or contributed to by an act or omission or that the act or
         omission was that of the person against whom the claim is made, or
         (ii) wilfully misleads the person with the claim as to the appropriateness of a proceeding
         as a means of remedying the injury, loss or damage.
(5) BURDEN: the burden of proving that subsection (4) applies is on the person with the claim

If a person with a claim and a person against whom the claim is made have agreed to have an
independent third party resolve the claim or assist them in resolving it, the limitation periods
established by sections 4 and 15 do not run from the date the agreement is made until:
(a) the date the claim is resolved;
(b) the date the attempted resolution process is terminated; or
(c) the date a party terminates or withdraws from the agreement
*Legislation values alternatives to litigation so much they‟ll stop the clock for people who

(1) There is no limitation period for a proceeding:
       (a) for a declaration if no consequential relief is sought;
       (b) to enforce an order of a court, H: legislation tries to prevent D from dealing with
       ancient claims but shouldn‟t be able to dodge court order if you loose!
       (c) to obtain support under the Family Law Act;
       (d) to enforce an award in arbitration
       (e) under section 8 of the Remedies for Organized Crime and Other Unlawful Activities
       Act, 2001;

        (f) by a debtor in possession of collateral to redeem it;
        (g) by a creditor in possession of collateral to realize on it;
        (h) arising from a sexual assault if one of the parties to it was in a position of trust or
        (i) a proceeding to recover money owing to the Crown in respect of,
                 (i) fines, taxes and penalties, or
                 (ii) interest that may be added to a tax or penalty under an Act;
        (j) recovering $ paid by health/economic programs as a result of fraud/misrep.
        (k) to recover money owing in respect of student loans,
**H: 2 years for car accident death, no limit for student loans!!

• The Limitations Act cannot be modified by agreement between the parties


Rule 14: Application: Summary Proceeding, less process
• Applicant & Respondant
• Parties seeking a declaration on the state of the law
• This is commenced by a notice of application (Rule 14.05(1))
• All disputes proceed by way of action unless there are grounds for proceeding under
(1) If provided for by statute
(2) where rules of civil procedure speak to commencing by way of application
(3) if relief being sought is enumerated by 14.05(3)
      question affecting the rights of a person in respect of the administration of the
           estate, or removing executors of estates
      interpreting a will, deed, k
      remedy under the Canadian Charter of Rights and Freedoms;
(4) in any case, “where it is unlikely that there will be any material facts in dispute” (14.05(3)(h))

Rule 14: Action:
• Plaintiff & Defendant
• Commenced by statement of claim (14.03(1))
• Where there is insufficient time to prepare a statement of claim before the expiration of the
    limitation period, an action may be commenced by a notice of action (14.03(2))
• Where this is done, a statement of claim must be filed within a further 30 days (14.03(3))
• Generally, a statement of claim must be served within 6 months of being issued (14.08)
• Once the plaintiff has issued a statement of claim, if the defendant wishes to contest it he
    must issue a statement of defence
• Court issues statement of claim by taking fee and issuing a file #
• *NOTE: Other pleadings that take place within existing claim that are still originating
    processes (in addition to above) = divorce petition, counter claim against party not already
                                                             th  th
    party to litigation, amended statement of claim, third, 4 . 5 party notice etc NOT

Contents of Statement of Claim:
• Style of Cause
• Statement of claim being made and relief sought (“P claims…)
• To defend claim D must reply with a statement of defence (20 days within ON, 40 days out of
   province and in US, 60 days outside Canada or US) OR notice of intent to defend (allows
   additional 10 days)

Rule 76: Rules of Simplified Procedure:

•   Purpose: to reduce costs of litigation for modest claims, another opportunity to streamline civ
    pro to increase access to justice
•   Takes place in Superior Court and trials have less process:
         o no examination for discovery –Rule 76.04
         o no cross examination on affidavits (sworn statements) –Rule 76.04
•   Summary judgment available and easier to get –lower threshold than application test under
    Rule 20.04
•   Summary trial available –Rule 76.12 (another tool to shorten litigation)
•   Up to $50,000, the simplified procedure is mandatory
•   Over $50,000 and the parties must agree to come under the rule, however this does not
    happen often because the party with more resources does not usually want it
•   If at trial the plaintiff recovers $50,000 or less under ordinary procedure, plaintiff will recover
    no costs or possibly be forced to pay some of other sides costs unless the court is satisfied
    that it was reasonable for the plaintiff to have commenced and continued the action under the
    ordinary procedure (76.13(3))

E.J. Hannafin Enterprises v. Esso Petroleum Canada (Gen. Div. 1994

Facts: Hannafin is in a dispute with Esso. There are two parts to the dispute. In the first, there are
facts which are contested by the parties, and which would require a trial to resolve. In the second
part, there is only a question of contractual interpretation, and which could be resolved by way of
application. If the second issue is resolved in Hannafin‟s favour, the trial on the first issue will be
unnecessary, and Hannafin will win. Hannafin therefore wishes to have the second issue dealt
with by way of application, and go to trial only if Hannafin is unsuccessful on this issue. Esso
argues that the court should not deal with issues in a bifurcated fashion where, on one outcome
of the argument, the matter should proceed to trial in any event.

Issue: Where there is a question which can be dealt with by way of application, which would have
the effect of possibly rendering a trial unnecessary, should it be dealt before the triable issue?

Decision: Decision for Hannafin; the application will proceed.

Rule: The court is empowered to sever an issue from the whole of the application and deal with
that issue as part of the application, while directing that the remaining issues in the application, if
necessary proceed to trial. (Rule 38.10 (b) )
Application: In the interests of efficiency, it is best to split the litigation and possibly resolve it by
way of application.


•   Rule 16.01: General rule is that every originating process is to be served personally
    according to Rule 16.02 OR by an alternative to personal service contained in 16.03
•   Rule 16.01(2) A party who has not been served with the originating process but delivers a
    defence, notice of intent to defend or notice of appearance shall be deemed to have been
    served with the originating process as of the date of delivery
•   Rule 16.02(1) contains a comprehensive list of how to personally serve various kinds of
    persons and entities, including: * see rules for methods of service
        o Individuals leave copy of document with individual
        o Municipalities leave copy with chair, mayor, clerk etc.
        o Corporations leave copy with officer, director or anyone else that appears in control
        o Board or commissions leave copy with member or officer or board
        o Persons outside of Ontario carrying on business inside Ontario anyone carrying on
            business for that person in ON
        o Crown in right of Canada 
        o Crown in right of Ontario

        o   AG  leave copy with solicitor in Crown law office
        o   Absentee leave copy with litigation guardian
        o   Minor litigation guardian, parent, caregiver where child lives
        o   Mentally incapable person guardian, attorney, public guardian or trustee
        o   Partnership one of the partners or person in control at place of business
        o   Sole proprietorship sole proprietor or person in control

        o Acceptance by a solicitor
        o Service by mail to last known address
        o Service at place of residence
        o Service on a corporation
•   Must identify person, hand them document and tell them they‟ve been served
•   CL rule about effecting service: if person refuses to accept document you can touch them
    with it and let it fall to ground

•   Where normal service is impractical, the court may make an order for substitute service,
    which is done “ex parte” (without notice)
•   Common modes of substituted service includes
        o Mail
        o Leaving it with a person in communication with the defendant
•   Service by email is permitted but NOT for originating statement of claim

•   Rule 16.09(1) Service of a document may be proved by an affidavit of the person who
    served it
        o Form 16B

Purpose of Service:
• Once the originating process is issued, the rules of civil procedure provide a fixed period of
   time within which it must be served on the defendant (6 months)
• Reason for this is that the ultimate purpose of limitation periods is timely notice to the
   defendant that he is being sued; this is not met merely by issuing the originating process, but
   by service on the defendant
• Rupert’s Land Mortgage (p. 271):
       o Originating papers not personally served, however D had received them
       o Court ruled that because the purpose of the personal service is to alert the defendant
           of the lawsuit, if the defendant already has the originating process, there is no need
           for personal service
• Anything that is not an originating process need not be served personally, because the
   defendant has notice of the lawsuit already

Extending the Time for Service
• Once issued, the statement of claim must be served within 6 months
• Rule 3.02: The court has the power to extend the time for service
• Buleychuck v. Danson (Ont. Gen. Div. 1992) (p. 280)
       o The test to be applied regarding whether service should be extended is whether
            doing so would cause prejudice to the defendant


•   Traditional CL rule: either serve in jurisdiction of court or outside that jurisdiction with consent

Expanded Rules for Service Outside the Jurisdiction: EXAM
• Service outside Ontario can be made without leave in cases falling within the list enumerated
   in Rule 17.02, or in cases with leave of court under Rule 17.03
• Rule 17.02: enumerated grounds for service outside ON by originating notice of OSC
   (a) in respect of real or personal property in Ontario
   (b) in respect of the administration of the estate of a deceased person –regarding real
       property in ON or personal property where deceased person at time of death was
       resident of ON
   (c) for the interpretation, rectification, enforcement or setting aside of a deed, will,
       contract or other instrument in respect of real or personal property in ON or personal
       property of deceased person who was resident of ON at time of death
   (d) against a trustee in respect of the execution of a trust contained in a written
       instrument where the assets of the trust include real or personal property in Ontario;
   (e) for foreclosure, sale, payment, possession or redemption in respect of a mortgage,
       charge or lien on real or personal property in Ontario
   (f) in respect of a contract where the contract where contract
            a. was made in ON
            b. contract provides that it is to be governed by law of ON
            c. parties to the contract have agreed that the courts of Ontario are to have
                 jurisdiction over legal proceedings in respect of the contract
            d. a breach of the contract has been committed in Ontario
   (g) in respect of a tort committed in Ontario;
   (h) in respect of damage sustained in Ontario arising from a tort, breach of contract,
       breach of fiduciary duty or breach of confidence, wherever committed
   (i) for an injunction ordering a party to do, or refrain from doing, anything in Ontario or
       affecting real or personal property in Ontario
   (j) on a judgment of a court outside Ontario
   (k) authorized by statute to be made against a person outside Ontario by a proceeding
       commenced in Ontario
   (l) against a person outside Ontario who is a necessary or proper party to a
       proceeding properly brought against another person served in Ontario
   (m) against a person ordinarily resident or carrying on business in Ontario
   (n) properly the subject matter of a counterclaim, crossclaim or third or subsequent
       party claim under these rules
   (o) made by or on behalf of the Crown or a municipal corporation to recover money owing for
       taxes or other debts due to the Crown or the municipality

Challenging Service of an Originating Motion from ON RULE 17.06
• Rule 17.06: A defendant served outside Ontario may challenge the service on three grounds
       o Service is not authorized by the rules (17.02)
       o An order granting leave to serve outside Ontario should be set aside (17.03) because
           Ontario is not a convenient forum for the hearing of the proceedings
• Motion can also be brought by the defendant under Rule 21.01(3)
• A party who wishes to challenge the service out of jurisdiction should file a motion under
   17.06 setting aside the service before attorning to the jurisdiction of the province, and
   therefore should not file:
       o A statement of defence
       o A notice of intent to defend
       o A notice of appearance
• Filing a motion under 17.06 stops the clock on time period for replying to originating

Morguard (SCC, 1990)
• Court looked at fairness and order in regard to provincial borders
• Jurisdiction out of province can only be asserted on the basis of a “real and substantial
   connection” between the province and OOP D
• The “real and substantial connection” test is constitutionally based, and accordingly
   supersedes the rules for judicial jurisdiction (Hunt v. T & N, SCC)
• As a consequence, if a court takes jurisdiction over a case that meets the requirements for
   the rules of service but has no real and substantial connection, it can be challenged on
   constitutional grounds
• Further, courts should recognize one another‟s judgements, and not treat each other as
   different countries

Muscuut v. Courcelles (OCA, 2002)
Facts: P injured in car accident in Alberta, had to move home to live with mother in ON because
of injuries, Alberta insurance, all D‟s living in Alberta, P was living in Alberta at time of accident
• P granted leave of court to serve outside ON under 17.03 because there was a real and
     substantial connection between court of ON and Alberta defendants
• D challenged by filing motion under 17.06 to have leave of court set aside
• Appeal to CA to challenge motion judges finding that ON was convenient forum
• D argued interpretation that real and substantial test from Morguard only met in 2 cases:
     personal subjection approach
          o where D has voluntarily submitted to ON jurisdiction
          o where D could reasonably have contemplated conduct would give rise to ON claim
• P argued for interpretation that real and substantial connection should consider
          o connection between forum and subject matter of action
          o connection between ON and damages suffered by P
• Court adopted Flexible Approach which considers 8 factors:
          o The connection between the forum and the plaintiff‟s claim
          o The connection between the forum and the defendant
          o Unfairness to the defendant in assuming jurisdiction
          o Unfairness to the plaintiff in not assuming jurisdiction
          o The involvement of other parties to the suit
          o The court‟s willingness to recognize and enforce an extra-provincial judgement
              rendered on the same jurisdictional basis
          o Whether the case is inter-provincial or international in nature
          o Comity and the standards of jurisdiction, recognition and enforcement prevailing
• Found all factors combined ON court justified in assuming jurisdiction
          o Would be unfair to one of them either way, on a balance more unfair to P (injuries)
          o D‟s insurer was part of a federal auto insurance regime that had undertaken to
              defend in the provinces of the claimant‟s residence
• H:
          o Case added was the lens of fairness
          o Almost unavoidable for courts to consider the merits under test as well, which is



•   Rule 18.01 Obligation is placed on defendant who is served with a statement of claim to
    deliver a statement of defence within the appropriate time depending on where the defendant
    is served
         o Ontario: 20 days
         o Outside Ontario: 40 days
         o Outside Canada: 60 days
•   Rule 18.02 D who has been served with a statement of claim and intends to defend the
    action, but requires more time to do so, may deliver a “notice of intent to defend” within the
    time prescribed for deliver of a statement of defence
         o entitled to an additional 10 days in which to file his or her statement
•   A defendant may deliver a statement of defence at any time prior to being noted into default

• P may take default proceedings upon the defendant‟s failure to deliver a statement of
Rule 19.01:
• When this occurs, the plaintiff may require the registrar to note the defendant into default

Consequences of Being Noted into Default:
Rule 19.02:
• A defendant noted into default is deemed to admit the truth of all allegations of fact made in
   the statement of claim
• That defendant may not take any other step in the action(i.e. statement of defence) other
   than a motion to set aside the noting in default except with leave or consent, and is not
   entitled to any further notice of the proceedings
Rule 19.02(3)
• Further, the defendant is no longer entitled to notice of any step in the action, and need not
   be served with any documents in the action unless ordered by the court or listed in rules
        o An example of something that the defendant will receive notice of is the counterclaim
        o H: As a professional courtesy, it is frowned on to note the other side into default

Parties have 4 options after D is noted into default:
• (a) Rule 19.03: The defendant can bring a motion asking the court to set aside the noting in
• (b) Rule 19.04 The plaintiff can ask the registrar to sign judgement against the defendant
        o This can be done only if the claim is a liquid amount where it clear how much is owed
            –claim is debt or liquidated amount (i.e. payment under contract, IOU)
• (c) Rule 19.05: The plaintiff can bring a motion to the court for judgement for any claim that
    does not fall under rule 19.04
        o This will be done where it is not clear the size of the claim, for instance if the
            defendant owes the plaintiff a bike
• (d) Rule 19.08: Once judgement is entered against the defendant, the defendant may then
    bring a motion setting aside the judgement
        o See Lenskis
        o in this case costs will almost always be awarded to P
        o motion will almost always be granted –court wants P to have day in court

Lenskis v. Roncaioli (Gen. Div., 1992):
• There are five factors governing whether a default judgement should be set aside:
   o The delay between the default and noting into default
   o The delay on the part of the defendants between learning of the noting and bringing a

        motion to set it aside
    o   The reasons for the delay
    o   The prejudice caused to the plaintiff from the delay, such as lost evidence
    o   Whether or not the defendant has a good defence to the substantive allegations against


Standing = entitlement of party to litigate (sue) against another party
• Recall public and private standing
• Recall Canadian Council of Churches –upheld trilogy & maintained strict test for PI standing
Capacity = in civil context the ability to sue or be sued in your own name
• P & D both require certain legal capacities to commence and defend an action
• Rule 21.01(3): if D thinks P doesn‟t have legal capacity to commence or if D doesn‟t have
    capacity to defend they may apply to have the action stayed or dismissed
• General Capacity Rule:
    1. Any individual can initiate as P/applicant or can be sued as D/respondent
    2. Certain legal entities other than individuals are geridical entities that can sue/be sued (i.e.
       o Children and those deemed mentally incompetent are deemed legally to be lacking
            legal capacity and therefore cannot sue or be sued in their own names
       o The enforcement of legal rights and obligations of these categories of individuals are
            dealt with in Rule 7

Rule 7: Exceptions to General Capacity Rule
• Rule 1.03: Legal disability = minor (under 18), absentee (person who has disappeared) &
    mentally incapable person (under S.6 of Substitute Decisions Act)
• Rule 7.03: If you are under legal disability you are incompetent to:
        o (a) retain and instruct legal counsel
        o (b) sue or be sued in your own name
• Litigation Guardians:
        o Policy: to protect party under disability AND to protect other parties in court (need
            two equal adversaries & person is unable to act as such)
        o Rule 7.02 & 7.03 people who can‟t be litigation guardians:
                 • anyone who has interest that‟s adverse to party under legal disability –i.e.
                     parent driving in car crash
                 • anyone who is also a person under disability
        o Rule 7.04: Unless there is some proper person willing to act as litigation guardian,
            the court is to appoint the Children‟s lawyer or Public Guardian and Trustee, and the
            Rule specifies the areas of responsibility of each of these officers:
                 • Children‟s lawyer when the disabled person is minor
                 • Public Guardian and Trustee in cases of mental incapacity
                 • H:This is how P would challenge D‟s capacity
        o Rule 7.06: provision for removing litigation guardian:
                 • if no longer needed (over 18, no longer mentally incapable)
                 • not acting in best interests
• Corporations: have capacity
        o Section 15 of Ontario Business Corporations Act: corporations have powers of
            natural persons
        o When corporation has suffered injury it must bring action under its own name
• Partnerships: do not have status as independent entities
        o Partnership Act: relations subsisting between persons carrying on business with
            interests in profit are not melded into one like corporation
        o Sue partnership in name and each of the parties –partners are jointly and severally
            liable (estate of deceased partner is jointly liable for any outstanding debt)


•   If a plaintiff has a number of claims that are factually and legally related to each other, and
    pursues each in a separate action, there is a risk of different or inconsistent findings
•   Moreover, this may lead to inefficiency
•   Hence, the courts allow plaintiff to consolidate claims and parties
•   The court therefore has broad discretion to be exercised on the balance of fairness and trial
•   S.138 CJA: multiplicity of proceedings should be avoided
•   Policy behind joinder:
         o Provides access to justice –efficiency & costs of parties/court
         o Prevents inconsistent results scandalous!
•   Achieves this policy through:
         o Generous provisions for joinder –rule based
         o Rule that prohibits retrying cases (res judicata –CL based)
         o Practice of allowing parties to consolidate or trial of actions together
•   Joinder involves a balance between:
         o Policy pushing toward efficiency and consistent finding
         o Tipping point with unlimited joinder there‟s potential for monster action that looses
              efficiency because of complexity
•   Courts have broad discretion in joinder to determine when tipping point has occurred
•   Class actions are super joinders –on exam fine line between joinder and CA
•   There are two kinds of joinder:
         o Joinder of claims:
                    Joining multiple claims against one defendant in one action
         o Joinder of parties
                    Joining multiple plaintiffs, multiple defendants or both in an action on the
                       same claim
•   Both of these may be done simultaneously

Joinder of Parties
• Joining together multiple parties in a common cause of action –several P‟s OR D‟s
General Rule: In adversarial/traditional system person commencing proceeding has right to
structure litigation including deciding who to name as P‟s and D‟s

(A) Rule 5.03: COMPULSORY JOINDER (Necessary Parites)
• Exception to general rule of traditional system
• Concerned with minimum size of litigation necessary in order to effectively adjudicate
• GENERALLY occurs by motion
• The concern is that the absence of party C will prejudice D in two ways:
        o May expose D to a multiplicity of suits, which is bad in itself
        o Also, this may lead to double liability if there are inconsistent results
• In addition, where multiple suits are inefficient they are a burden on society
Rule 5.03(1):
     • General Rule: every person whose presence is necessary to enable the court to
        adjudicate effectively and completely on the issues in a proceeding shall be joined as a
        party to the proceeding
Rule 5.03(2)
     • A plaintiff or applicant who claims relief to which any other person is jointly entitled with
        the plaintiff or applicant shall join, as a party to the proceeding, each person so entitled
        i.e. purchase house with spouse and sue for breach of contract –spouse must be
        made party
Rule 5.03(3)
     • In a proceeding by the assignee of a debt or other chose in action, the assignor shall be
        joined as a party unless i.e. Canada student loans sells your loan to shark who sues
        you CSA must be party

   a) the assignment is absolute and not by way of charge only; and
   b) notice in writing has been given to the person liable in respect of the debt or chose in
        action that it has been assigned to the assignee
Rule 5.03(5)
   • If necessary party refuses to be plaintiff court will automatically join them in lawsuit as a
        defendant (can‟t force someone to be a P)

(B)   Rule 5.02: PERMISSIVE JOINDER OF PARTIES (Proper Parties)
•     Concerned with maximum size of litigation in terms of number of P‟s and D‟s
•     Don‟t have to move just name parties
•     Typical cases of where joinder of multiple plaintiff would occur would be where the defendant
      owes an obligation to multiple plaintiffs, such as when the plaintiffs are partners
•     In such a situation, the plaintiffs must be represented by the same counsel
•     The logical extension of this is a class action
•     Rule 5.02(1): Joinder of multiple plaintiffs where they are represented by the same solicitor is
      permissible where:
      o They assert claims to relief arising out of the same transaction or occurrence
      o A common question of law or fact
      o It would promote the convenient administration of justice
      o Each clause is an independent ground for joinder
•     Rule 5.03(2) Joinder of multiple defendants is permissive where:
      o There are asserted against them any claims to relief arising out of the same transaction
          or occurrence
      o A common question of law or fact
      o There is doubt as to the person from whom the plaintiff is entitled to relief
      o Damage has been caused to the plaintiff from more than one person, whether or not
          there is a connection between the claims apart from the involvement of the plaintiff or
          applicant, and there is doubt as to the person from whom the plaintiff is entitled to relief
      o It appears that joining may promote the convenient administration of justice

Watson Article: Joinder of Defendants Sued in the Alternative
• Joinder of multiple defendants is permitted for two basic policy reasons:
• Economy:
       o A plaintiff is permitted to join multiple defendants to achieve a saving of time and
           costs, both to himself and to the court, through avoidance of a multiplicity of actions
           where there are questions of law or fact common to the claims
• Justice:
       o Joining defendants ensures that the decisions of the court are consistent
       o If a patient is negligently operated on, but both a doctor and a nurse were present,
           joining both prevents each one from blaming the other in the absence of the other
           and both getting off
       o Alternatively, it prevents both from being convicted

Example -Thomas W. Sayle Transport Ltd. v. Rivers
Facts: The plaintiff is attempting to join three defendants with two causes of action into one trial
for $2000 worth of damages. One of the defendants is seeking to have the action split.
Decision: Decision for the plaintiff.
• There is $2000 worth of damage
• In separate actions, an inconsistent result might prevent the plaintiff from being fully

Example -Pryshlack v. Urbancic (1973 HC)
Facts: The defendant applied for an order striking the statement of claim. The plaintiff, as the
vendor of a residential home, sued the defendant as the purchaser for failing to complete the

transaction. He also sued his own solicitor for negligence in handling the transaction.
Issue: Whether the plaintiff‟s action against his own solicitor should be joined with that against
the defendant.
• On the one hand, a multiplicity of proceedings is to be discouraged
• On the other hand, the claims against the solicitor and the purchaser are not the same, nor
    are the claims on the same legal premise
• On balance, the action against the solicitor will be dismissed (so as to split it from that against
    the solicitor) without prejudice to the plaintiffs right to bring a separate action in the future

Joinder of Claims:
• Consolidation of two or more proceedings OR joint hearing of two or more proceedings
• Consolidation = merging of proceedings into one action
• Joint hearing = proceedings remain distinct but court hears them at the same time
• Avoiding inconsistent findings is a major driving policy here
Rule 6.01(1)
• Court puts two or more claims together against the wishes of the plaintiff, which can be done
        o There is a common question of law or fact
        o The relief is from the same transaction
        o For any other reason the court thinks that joinder ought to be made
• The joinder powers that the court has includes:
        o Have the proceedings consolidated
        o Have the claims heard together
        o Have the claims heard one after the other
        o Have a claim stayed until the determination of another one
        o Have a claim asserted by way of counterclaim against another one
Rule 6.01(2)
• In the order, the court may give such directions as are just to avoid unnecessary costs or

• The rules regarding permissive joinder are therefore very broad
    o On one hand, the court seeks to avoid putting the plaintiff to unwarranted expense by
        splitting the claims
    o On the other hand, the court tries to avoid prejudice to the defendant
    o Additionally, the court looks at the efficiency to the system as a whole
Rule 5.01(1):
    • A plaintiff or applicant may in the same proceeding join any claims the plaintiff or
        applicant has against an opposite party
Rule 5.01(2):
    • A plaintiff or applicant may sue in different capacities and a defendant or respondent may
        be sued in different capacities in the same proceeding

Example -Foley v. Signtech (1989)

Facts: The plaintiff‟s statement of claim alleged wrongful dismissal and defamation, and the
plaintiff wanted to bring both claims as one action. The defendant moved to strike the defamation
claim on the grounds that there was a history of jurisprudence saying that it was not allowed to
have defamation and wrongful dismissal, as it could result in prejudice to the defendant.

(a) Can damages for loss of reputation resulting from a termination be claimed in a wrongful

dismissal action?
(b) Are claimants asserting a claim for defamation resulting from statements made by D to third
parties but calling it a claim for loss of reputation?
(c) Can a claim for defamation be joined with a claim for wrongful dismissal?

(a) case law in these two areas are conflicted –held that pleadings should only be struck in the
“clearest of cases” we see court reluctant to interfere with P‟s ability to control litigation
(b) court held that P‟s were clearly claiming within definition of defamation –upholding P‟s right to
structure litigation
(c) held that law needs to procress in recognition of “the tremendous expense and protracted
nature of litigation today” if they force P to separate claims it would lead to separate litigation
which wouldn‟t be justified b/c of increased delay and expense

Holding: Notwithstanding the history of cases forbidding the hearing of wrongful dismissal and
defamation, the efficiency concerns are sufficiently large to suggest that these cases should be

Notes (per Hanycz): This was the first case where the court looked seriously at efficiency as a
concern in joinder.
• courts willing to discard case law and rules because of protracted nature of modern litigation
   is limiting access to justice
• there is a tipping point in joinder when complexity reduces efficiency –judges have discretion

Relief Against Joinder

Rule 5.05: Where it appears that the joinder of multiple claims or parties in the same proceeding
may unduly complicate or delay the hearing or cause undue prejudice to a party, the court may
 order separate hearings;
 require one or more of the claims to be asserted, if at all, in another proceeding
 order that a party be compensated by costs for having to attend, or be relieved from
   attending, any part of a hearing in which the party has no interest;
 stay the proceeding against a defendant or respondent, pending the hearing of the
   proceeding against another defendant or respondent, on condition that the party against
   whom the proceeding is stayed is bound by the findings made at the hearing against the
   other defendant or respondent
 make such other order as is just.


•   Res Judicata is a common law doctrine that operates to prevent re-litigation of matters that
    have already been judicially determined
•   Three Policy Rationales:
        o Fairness to Successful Litigant: encouraging an end to litigation and avoiding the
            situation where a successful litigant is “twice vexed”
        o Judicial Efficiency: avoiding a squandering of court resources
        o Both are balanced against the competing policy consideration of fairness to
            unsuccessful litigant who is not prevented from having another day in court!
•   Common law doctrine of res judicata has developed in three waves:
        o (A) Cause of Action Estoppel (Claim Preclusion in US)
        o (B) Issue Estoppel (Issues Preclusion in US)
        o (C) Abuse of Process/ Non-Mutual Issue Estoppel abuse of process NOT = res

•   Each ripple/expansion limits people‟s ability to access the courts

(A) Cause of Action Estoppel:
• Arises when a court has adjudicated an action between parties and a subsequent action is
    brought between the same parties that is directly connected to the initial action
• The final decision in the first action binds the parties –t/f unsuccessful party from initial action
    is barred from re-litigating the matter

Hoque NSCA 1997
• Involves the interplay of two principles
       o A party should not be „twice vexed‟ for the same cause of action
       o A party should not be denied her day in court
• Stands for the proposition that, in addition to barring matters that have already been litigated,
   the common law also bars matters that ought to have been litigated in the initial cause
   of action
• “Those issues which the parties had the opportunity to raise and, in all circumstances should
   have raised, will be barred
• Factors to consider:
       o Whether the proceedings constituted a collateral attack on the earlier findings, i.e. an
            attack made in proceedings other than those whose specific object is the reversal,
            variation or nullification of the order or judgement
       o Whether it merely asserts a new legal conception, i.e. new legal arguments, based
            on facts previously litigated
       o Whether it relies on “new” evidence that could have been discovered earlier with
            reasonable diligence
       o Whether the two proceedings relate to separate and distinct causes of action
       o Whether, in all the circumstances, the second proceedings constitutes an abuse of
• There is another line of cases that says that if you bring a cause of action, e.g. intentional tort
   of battery and you are successful, you may still bring an action in negligence afterwards

Freedman v. Reemark Sterling Limited (OCA 2003)
• A defendant‟s cross-claim against a co-defendant was held not to be barred by cause of
    action estoppel even though the liability of the co-defendant to the plaintiff had already been
    established in a prior proceeding
• The Ontario Court of Apppeal applied the framework from Hoque, and held that the cross-
    claim related to a “distinct cause of action” and permitted it to proceed

•   Evolution to Issue Estoppel –i.e. purchase rotten steak & an issue was that store has a
    history of selling rotten meat which is successfully defended, second claim for rotten
    hamburger has same issue of history of selling rotten meat….

(B) Issue Estoppel:
• Triggered when the second action involves a different cause of action/claim which therefore
     would not be barred on grounds of cause of action estoppel
• Broadens concept of res judicata to avoid situation of an issue being re-litigated, despite the
     fact that it is being raised in a different claim or as part of a different cause of action
• Court treats any issues decided in the first case that also arise in the second as having been
     settled & therefore barred from relitigation
• Three part test giving rise to issue estoppel:
     1. Same issue must arise in the initial and subsequent litigation
     2. There must exist a “prior, final, judicial decision” respecting the issue now being raised
          in subsequent litigation

    3. Mutuality requirement: it must be the same parties in the initial litigation and the
         subsequent attempt to litigate the issue –Estoppel can only bar parties of the initial
•   Why Mutuality?:
         o Unfair to bind someone to a decision if that person didn‟t participate in litigation that
               lead to the decision
         o The “newcomer” to the issue should only be bound by its determination if they were
               able to participate in the process that let to the original decision
         o To hold otherwise would unfairly burden someone with a legal deicison following a
               process that he had not been able to participate in
•   ie. AB (issue = how fast B was going) CB (C not party to finding in earlier decision
         o C not bound to finding on issue of speed to their benefit or detriment (in real life C
               would be compulsorily joined to avoid inconsistent findings)
•   Important to distinguish Res judicata from Stare decisis:
•   Stare decisis
         o A rule of law decided in an earlier case can determine or control the result in a later
               case but, under stare decisis, the parties to the second case are free to argue that
               the principle does not apply to their particular set of facts
•   Res judicata
         o Binds more strictly than stare decisis
         o As a rule of evidence, issue estoppel prevents the litigants from even attempting to
               argue a different finding surrounding the issue in question
         o The issue has already been determined and, as such, stands

(C) Abuse of Process/Non-Mutual Issue Estoppel
• Expansion of doctrine of issue estoppel to encompass situations where parties to subsequent
    litigation where issue is re-raised are not exactly the same parties as participated in the
    first action
• American Courts: abandoned mutuality, added doctrine of non-mutual issue estoppel
• British Courts: rigidly adhered to mutuality (if it‟s not exactly the same parties res judicata
    doesn‟t apply) use abuse of process to achieve same ends where fairness requires the
    party be barred
• Canadian:
          o Some courts have followed Denning‟s approach in McIlkenny, which is consistent
              with the more flexible American approach, whereas some have framed the analysis
              in terms of abuse of process
          o Generally, both vehicles serve the same end of barring the relitigation of issues,
              however they confuse the jurisprudence

Example -McIlkenny v. Chief Constable (1980, C.A.)
• Lord Denning, writing for the majority, considered a situation where a convicted IRA bomber
   claimed in a subsequent civil action that the police beat him during a criminal interrogation
• Because he had unsuccessfully argued at the criminal trial that his confession had been
   beaten out of him, Denning found that res judicata applied
• However, Denning noted that even though the parties to the two matters were different, and
   therefore no mutuality was present, Denning nonetheless found that this was a true case of
   estoppel rather than a new branch not requiring mutuality
• On appeal, the House of Lords rejecting Denning‟s approach (still need mutuality for res
   judicata), however they upheld the result basing their argument in the concept of abuse of
   process as the appropriate way to avoid relitigating an issue

Application of Non-Mutual Issue Estopppel/Abuse of Process

(A) Impact of Criminal Convictions on Civil Proceedings

•   General Rule in ON:
        o criminal conviction is admissible as prima facie evidence of civil liability only (b/c
              standard is higher!)
        o reasons for criminal conviction or findings of fact in support of conviction are NOT
•   As with any prima facie evidence of liability, this evidence is rebuttable by D –therefore there
    is potential for relitigation of the bases of conviction
•   This does NOT amount to a requirement for civil courts to relitigate the criminal conviction
    and would be seen as a collateral attackD can only raise & relitigate reasons or fact
    finding for purposes of rebutting prima facie evidence of civil liability based on the criminal
    conviction (only way for D to challenge conviction is to appeal to higher court) -evidence can‟t
    be relitigated!! Fact finding/reasons NOT relitigatable

Example -Demeter
Facts: Attempted to advance a claim for life insurance monies arising from his wife‟s death
arguing they breached contract by refusing to pay in spite of the fact that he was criminally
convicted of the death
• The Supreme Court of Canada upheld the Ontario Court of Appeal‟s finding that the “use of a
    civil action to initiate a collateral attack on a final decision of a criminal court of competent
    jurisdiction in an attempt to relitigated an issue already tried is an abuse of the court”
• In doing so, the SCC agreed with the OCA‟s refusal to allow Demeter to advance a civil
    claim, on the grounds that it would be an abuse of process

Example –C.U.P.E v. City of Toronto (SCC 2003) EXAM

Facts: Glenn Oliver was convicted of sexual assault and, as a consequence, was dismissed from
his employment with the city. He brought a grievance. At labour arbitration, the arbitrator ruled
that Oliver had rebutted the presumption that he sexually assaulted the boy. As such, the
arbitrator ruled that Oliver had been dismissed without cause.

Issue: Can a person convicted of sexual assault and dismissed from his employment as a result
be reinstated by a labour arbitrator who concludes that the sexual assault did not take place?

The court considered a number of different potential contexts for properly considering this issue:
Issue estoppel:
• The court confirmed the mutuality requirement for establishing issue estoppel, despite
    arguments to abandon the requirement as has happened throughout American jurisprudence
Collateral attack:
• The rule against collateral attack bars actions to overturn convictions when those actions take
    place in the wrong forum (e.g. overturning a criminal conviction during a labour arbitration)
    can be conceptualized as a type of abuse of process
• The court found this case NOT to be a collateral attack as the union was not seeking to
    overturn the conviction itself, but simply was contesting the correctness of the conviction for a
    different claim
• The civil action in this case was an “implicit attack on the correctness of the factual basis for
    the decision, not a contest about whether that decision has legal force, which it clearly does”
         o H: This sure looks like a collateral attack!

Abuse of process:
• The notion that the court has an inherent discretion to prevent abuse of process to prevent
   proceedings “unfair to the point that they are contrary to the interests of justice”

•   Courts have traditionally used the doctrine of abuse of process to prevent the relitigation of
    matters where the strict requirements of issue estoppel (especially the mutuality requirement)
    are not met…i.e. where there are different parties from the original parties, no issue estoppel
•   The court, in discussing the abuse of process doctrine, said: “the attraction of the doctrine of
    abuse of process is that it is unencumbered by the specific requirements of res judicata while
    offering the discretion to prevent relitigation”
•   This preserves the integrity of the court‟s process
        o H: If you use “abuse of process” as a proxy for issue estoppel, doesn‟t that obscure
             the true question while leaving only a vague sense of judicial discretion?
•   The court held that the arbitrator erred in law in failing to give full effect to the criminal
    conviction by making a contrary finding, and that the evidence before the arbitrator, properly
    respected, could only give rise to a finding that the city has established just cause for firing
    the employee
        o H: While the outcome may be the right one, it should be a concern that the courts are
             using the abuse of process doctrine to give themselves wide discretion rather than
             either applying the current doctrine as it is defined, or redefining it as necessary

(B) Impact of Administrative Tribunal Decisions on Civil Proceedings
• The courts have dealt inconsistently with the impact of a decision of an administrative tribunal
     on subsequent civil proceedings
• The difficulty is that tribunals have different levels of formality
• Three important decisions:

Rasanen v. Rosemount Industries (OCA, 1994)

Facts: The plaintiff was employed by the defendant as a manager, based in Toronto and
reporting to the Canadian president of the defendant corporation. In 1984, following a corporate
restructuring, the plaintiff‟s position was closed out. The plaintiff was offered two other positions
at the same pay, on in Toronto and one in Calgary. The plaintiff viewed both offers as a
fundamental change in his employment amounting to a constructive dismissal. The employer
terminated employment because of the plaintiff‟s refusal to accept either offer. The plaintiff made
a claim to the Employment Standards Board under the Employment Standards Act for eight
weeks termination pay AND commenced a civil action for wrongful dismissal. The administrative
hearing by the ESB found that there was no money owing for termination pay to Rasanen.
Rasanen then proceeded with the civil action for wrongful dismissal based on the same
allegations. Court concluded that the issue was the same as had been decided by the ESB
referee and dismissed the action on the basis of issue estoppel. The plaintiff appealed to the
Ontario CA.

Issue: Does issue estoppel act to preclude Rasanen from litigating this claim of wrongful
dismissal in court?

• Three pronged test:
• The same issue had arisen in both proceedings
• Was there a prior, final judicial decision?
       o The appellants argued that the informality of the ESB rendered it insufficiently judicial
       o The court accepted the respondent‟s position that administrative tribunals were
          designed to make final and binding decisions, often in specialized areas
       o As long as the tribunal (a) provides the parties with an opportunity to know and meet
          the case against them, and (b) so long as the decision is within the tribunal‟s
          jurisdiction, there is no basis for exempting the issues adjudicated by the tribunal
          from the operation of issue estoppel in a subsequent action
• Was the mutuality requirement met?
       o While it was technically the ministry of labour that brought the original administrative
          proceeding against the employer, the employee was a „privy‟ to the Ministry, sharing

            a „community of interest‟

Decision: The appellant is estopped from relitigating the issue of wrongful dismissal in civil

Note (per Hanycz):
• What degree of procedural fairness is required in an administrative decision? At what point
   would the prior decision be so lacking in „judicial nature‟ so as to render it incapable of
   estopping the litigation of the same issue in a different forum?
• It is important to know that Rasanen stands for the proposition that tribunal decisions
   are final

Minott v. O’Shanter Development Co. (OCA, 1999)

Facts: Minott worked with O‟Shanter for 11 years. After a conflict with his supervisor, he failed to
show up for work for two days. He was suspended for two days and then failed to show up for
work the next day. He was fired for cause. Minott applied for unemployment insurance following
his termination, but the Board found that he was disqualified for three weeks because he had lost
the job due to his own conduct. Minott sued O‟Shanter for wrongful dismissal. O‟Shanter moved
to dismiss the action on grounds of issue estoppel based on the UI Board‟s finding that Minott
had been fired for cause. The TJ dismissed the motion and awarded Minott damages of $40,000
for wrongful dismissal. O‟Shanter appealed.

Issue: Does issue estoppel act to preclude Minott from litigating the claim of wrongful dismissal in

The court applied the three pronged test for issue estoppel:
• The court found that the issue being considered by the UI Board (misconduct under the UI
   Act) was not the same as the issue being litigated in the civil proceeding
       o Civil court looks at common law action of wrongful dismissal (whether termination is
       o Board dealing with misconduct as defined in the UI act
• Court found it was a prior, final judicial decision
• Was the requirement of mutuality met- i.e. were the parties the same?
       o The court considered the situation where one of the parties to the second
            proceedings (O‟Shanter) was entitled but decline to participate in the first proceeding
       o Because O‟Shanter did not actively participate in the U.I. Bd. Hearing (only answered
            some questions), court found that he was not a party to that proceeding, despite the
            fact that O‟Shanter had some participation in the U.I. process
       o H: troubling b/c could have participated

Decision: The requirements for issue estoppel, (i.e. mutuality) had not been met, so Minott could

Obiter (Laskin):
• Court held that even if the formal test for applying issue estoppel had been met, the
   court would have exercised its inherent discretion to hold that the U.I. Board‟s finding of
   misconduct does not preclude the appellant from maintaining an action for wrongful dismissal
        o This is because the Board hearing are meant to be summary in nature, and may
           therefore be unfair
        o In order to avoid a situation where parties over-litigate before the board for fear of
           being barred at trial, and thus clogging the system, discretion is necessary
• Issue estoppel is a rule of public policy and, as a rule of public policy, it seeks to balance the

   public interest in the finality of the litigation with the private interest in achieving justice
   between the litigants
• Sometimes there will be tension between these interests
• Judicial discretion is required to achieve practical justice without undermining the
   principles on which issue estoppel is founded
• Similar reasoning was later adopted by the Supreme Court in Danyluk
Note (Hanycz): What does this say about the strict test for issue estoppel?

Danyluk v. Ainsworth Technologies (SCC, 2001)
Facts: The plaintiff was fired from her position as an account executive with the defendant
employer. She brought an application under the Employment Standards Act for unpaid
commissions. An employment standards officer denied the claim without providing her with any
information on what her employer had said or giving her an opportunity to respond. She is now
bringing a civil action for the same.

Issue: Does the doctrine of issue estoppel act to preclude this party who was unsuccessful
before an administrative tribunal from litigating the claim in court?


•   While the law seeks finality to litigation and attempt to avoid duplicative litigation, issue
    estoppel is a doctrine of public policy that is designed to be a tool to advance the
    interests of justice therefore we shouldn’t be bound so tightly to it so as to use the
    tool to thwart the interests of justice!
•   Court held a two step analysis is applicable for determining if issue estoppel applies:
        o First: can the three step test be met
        o Second: court must determine whether as a matter of discretion issue estoppel
             should apply
        o Concept of Previous „Judicial Decision‟ of the ESA officer: check text
                 The appellant argued that the ESA officer was required to make a judicial
                     decision which would have triggered issue estoppel, but that she failed to
                     make such a decision, as her improper behaviour carried her outside the
                     jurisdiction of the ESA, and that as such the ruling did not qualify as a judicial
                     decision such as would preclude the issue from relitigation
                 The court held there are three elements to be taken into account in
                     determining if a final judicial decision was made: (a) examine the nature of
                     the decision making authority (b) as a matter of law is the decision one that
                     was required to be made in a judicial manner (c) as a mixed question of law
                     and fact, was the decision made in a judicial manner
                 The court found that an administrative decision made without jurisdiction
                     cannot form the basis of an issue estoppel
        o The three pronged test for issue estoppel is met
                 Same question decided
                 Decision creating the estoppel was final –even though it was made without
                     regard to judicial requirements of notice and opportunity to be heard.
                 The parties to the final decision were the same
        o Discretion
                 The appellant therefore argued that, in spite of issue estoppel being met, the
                     court should exercise its discretion and refuse to apply estoppel
                 The court found that the discretion does exist, and reviewed some of the
                     important factors to consider in exercising that discretion
                 Most important was the potential injustice of estopping the appellant from
                     having the issue of her $300,000 in unpaid commissions properly heard
                 Despite the procedural mistakes by the appellant (not properly responding to
                     the unfair ESA decision –should have had it judicially reviewed, it was clear

                     that the issue at hand had never been properly litigated

Decision: Decision for the appellant.
Notes (per Hanycz):
• On one hand
       o If the court wants to change the test, it should do so explicitly so as to allow for
           certainty in the law so that people can conduct themselves appropriately
       o This is no different than an abuse of process approach, but under a different name
       o Court has committed collateral attack here
• On the other hand
       o In previous decision, the court might simply have fudged the test for issue estoppel
       o Perhaps it is in fact more transparent now that the courts are simply saying that they
           are exercising discretion
• On an exam, it is important to note that there is no clarity, and that both sides can be argued



•    Three policy objectives –Watson Article
1.   Increasing Access to Justice:
•    Litigation in Canada is so prohibitively expensive that modest claims aren‟t individually viable
•    Many more individually non-viable claims in Canada because:
          o Ceiling on pain and suffering claims
          o Punitive damages rarely awarded
          o Deterrence of fee shifting (risk of litigation increases esp for rep. litigant and novel

2. Improving Judicial Efficiency
• Without CA there would be many identical claims moving through courts at same time

3.   Behavior Modification
•    Harm is widespread but individually nominal so as to preclude individually viable claims
•    Before CA‟s manufactures counted on individually non-viable claims
•    Because of rarity of punitive damage awards, CA motifies behavior in way that‟s punitive

*H: 1&2 may not be pulling in the same direction more access to less justice


Class Proceedings Act, 1992
• Came into effect 1993
• Allows class action to be commenced in three ways:
        o P/A can commence proceeding on behalf of class class application
        o D/R can ask that two or more proceedings against it be classed into one
        o Any P/D to proceeding with several defendants can ask that it be certified as CA with

Rule 12 Rules of Civil Procedure
• Where numerous persons have the same interest one/more of them may bring/defend a
    proceeding on behalf of all

•   Section 35 CPA: Rules apply directly to CA where there are gaps in CPA
       o CPA specifically deals with certain aspects of process but not all –must be read in

Certification under S. 5(1) CPA
• In order to get the class certified, class counsel must get an order from the courts by way of
• Certification does two things:
    o Specifies the representative plaintiff
    o Certifies the proceeding
• CPA Rule 5(1): The court shall certify a proceeding on a motion if:
    a) the pleadings or the notice of application discloses 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;
    c) the claims or defences of the class members raise common issues;
    d) a class proceeding would be the preferable procedure for the resolution of the common
         issues; and
    e) there is a representative plaintiff or defendant who
             a. would fairly and adequately represent the interests of the class,
             b. 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
             c. does not have, on the common issues for the class, an interest in conflict with the
                  interests of other class members.
• CPA Rule 6: The court shall not refuse to certify a proceeding as a class proceeding solely
    on any of the following grounds:
    1. The relief claimed includes a claim for damages that would require individual assessment
         after determination of the common issue
    2. The relief claimed relates to separate contracts involving different class members
    3. Different remedies are sought for different class members.
    4. The number of class members or the identity of each class member is not known.
    5. The class includes a subclass whose members have claims or defences that raise
         common issues not shared by all class members

• Before CA legislation each jurisdiction had ruled of court that allowed or representative
• This was used to support class action litigation before Naken
• GM v. Naken SCC 1983:
       • SCC held that provincial rules of court couldn‟t support modern day class actions
       • This lead to Ontario Law Reform Commission Report on Class Actions, which led to
           the passage of the Ontario Class Proceedings Act

Class Action vs. Joinder:
• Joinder –have instant standing don‟t have to take steps to get certified
• CA are heavily regulated –i.e. settlement
• With high numbers you‟ll have a good case for preforability with CA
• Joinder –each P discovered, have to list each P by name –CA just name class


Western Canadian Shopping Centres (2001) –CERTIFIED
Facts: The claimants wanted to immigrate to Canada. To qualify, they invested money in
Western Canada Shopping Centres Inc. under the Canadian government‟s Business Immigration
Program. They lost money and brought a class action. The defendants (appellants) claim the
class action is inappropriate and ask the court to strike it out

Issue: Can a class action be brought in the absence of CP legislation

Decision: Yes, in the absence of CA legislation court must fill in void using its inherent power to
settle rules of practice. In this case, P‟s were able to proceed with their claim by way of
representative litigation

To gain certification under Alberta Rules of Court Rule 42, there are four necessary conditions:
• The class must be capable of a clear definition
        o This is important because it defines the individuals entitled to notice, relief and bound
             by judgement
        o The definition should therefore state objective criteria by which member of the class
             can be identified, and those criteria should bear a rational relationship to the common
             issues asserted by the members
• There must be issues of fact or law common to all members
        o The underlying question is whether allowing the suit to proceed as a representative
             one will avoid duplication of fact finding or legal analysis
        o The issue will therefore be common only where its resolution is necessary to the
             resolution of each class member‟s claim
• With regard to the common issues, success for one must mean success for all
        o All members must benefit from the successful prosecution of the action, although not
             necessarily to the same extent
        o A class action should not be allowed where the class members have conflicting
• The class representative must adequately represent the class
        o The proposed representative need not be typical of the class nor the best possible
        o Nevertheless, the court should be satisfied that the proposed representative will
             vigorously and capably prosecute the interests of the class

Even if the above four criteria are met, the court has discretion to refuse certification where the
four factors below make it necessary in order to ensure justice is met: factors discourage
• The defendant may wish to raise different defences with respect to different groups of
• It may be necessary to examine each class member in discovery
• Class members may raise important issues not shared by all members of the class
     applifies commonality
• The proposed class may be so small that joinder would be a better solution applifies

The four conditions to the maintenance of a class action are satisfied here:
• The class is clearly defined
            o The respondents represent themselves as immigrant investors who invested at
                 least $150,000
            o Who falls within the class can be ascertained on the basis of documentary
• Common issues of fact and law unite the class members
            o The essence of the claim is breach of fiduciary duty, which is shared by each
                 member of the class
• Resolving one class member‟s breach of fiduciary claim would resolve the claims of every
    class member
• The representative plaintiffs are appropriate
As to the additional four criteria:
• There are not multiple classes of plaintiffs

•   While different investors at different times, the investors raise the same claims requiring
    resolution of the same facts
•   While it may eventually emerge that different subgroups of investors have different rights
    against the defendants, this is not necessarily determinative, as the court can deal with any
    emerging differences as the time comes
•   It will not be necessary to examine each class member, as the fiduciary issues will be
    common to each
•   Similarly, simply asserting the possibility that the defendant may raise different defences will
    not necessarily negate a class action, if and when it happens the court can consider it at that

Ratio: The object of the court is to strike a balance between efficiency and fairness.

Notes (per Hanycz):
• This case may be distinguishable as an Alberta case
• Nevertheless, the Alberta legislation at issue is very similar to the Ontario legislation, and so
   is probably not that distinguishable
• Must imbed Dutton characteristics into ON analysis for EXAM
• In ON we have statute for CA but 5 requirements are open to interpretation
• Trilogy stuck up for D‟s –response to certification being too easy
• No federal CA legislation –incorporating class members from across country could increase
   complexity –Judicial Economy

Rumley (2001) -CERTIFIED
Facts: The Jericho Hill School, which was a residential school for the deaf and the blind operated
by the province of B.C., sexually and physically abused its students throughout its history. The
students brought a class action.

Issue: Have certification requirements set out in British Columbia‟s Class Proceedings Act been

Decision: Decision for Rumley; certification is permitted

Rules: There are five requirements according to the BC Class Proceedings Act
• The pleadings must disclose a cause of action
• There must be an identifiable class of 2 or more persons
• The claims of the class members must raise common issues, whether or not those issues
   predominate over issues affecting only individual members
• A class proceeding must be the preferable procedure for the fair and efficient resolution of the
   common issues, by reference to two questions:
       o Whether or not the class proceeding would be a fair, efficient and manageable
           method of advancing the claim
       o Whether the class proceeding would be preferable in the sense of preferable to other
       o These questions, in turn, must be considered in light of five factors
                Whether the questions of law of fact predominate over any questions
                    affecting individual members JE
                Whether a significant number of the members of the class have a valid
                    interest in individually controlling the prosecution of separate actions AJ
                Whether class proceeding would involve claims that are or have been the
                    subject of any other proceedings AJ
                Whether other means of resolving the claims are less practical/efficient JE
                Whether the administration of class proceedings would create greater
                    difficulties than those likely to be experienced if relief were sought by other

                    means JE
•   The representative plaintiff must be an adequate representative of the class

As to the five requirements of the Act:
• There is no dispute that the proceedings disclose a cause of action
• There is no dispute that there is an identifiable class
• Commonality is satisfied:
        o All class members share an interest in the question of whether the appellant had a
             duty of care
        o Resolving these issues is therefore necessary to the resolution of each class
             member‟s claim
        o Claim based on systemic negligence, a class action would avoid duplication in fact
• As to preferability:
        o A class proceeding would be fair and efficient
        o The class action would be preferable to other procedures
        o As to the five factors
                   While there would be relevant differences between individuals, because the
                      respondents focus on systemic negligence by the defendant, the individual
                      issues will be relatively minor aspect of the case
                   No class member will be able to prevail without making an individual
                      showing of injury and causation
                   Each class member retains control of the individual action damages etc.
                   Individual actions are a less efficient alternative in this case
                   Given that the respondents are deaf and blind, litigation would be particularly
                      difficult for them; acting as a class would somewhat mitigate this difficulty
• There is no dispute that the respondent is an adequate representative of the class
Notes: (as per H:)
• Rumley is persuasive –where it‟s specifically different look to Hollick
• SCC instilled preforability as predominant characteristic –is the issue here more important to

Hollick (2001) –NOT CERTIFIED
Facts: The appellant has brought an action as the representative of 30,000 residents in the city
of Toronto who live in the vicinity of a landfill owned and operated by the City. The action was
brought for damages arising as a consequence of physical pollution from the landfill. This
pollution includes large quantities of methane, hydrogen, etc. as well as loud noises and
vibrations. The respondent therefore brought a motion for certification and, as support, noted that
150 complaints were made to governmental authorities over the relevant seven years. As part of
approaval process minister required trust fund be set up to deal with claims up to $5000

Issue: Whether the appellant‟s action should be certified?

Decision: Decision for the city; the appellant cannot be certified preforability not met

Rule: Under Class Proceedings Act Section 5, there are five criteria that must be met for class
     1. The pleadings or notice of application must disclose a cause of action
               o Not meant to be meritorious evaluation Assuming all the appropriate facts to be
                  true, is it plain and obvious that the pleading does not disclose a cause of action?
     2. There must be an identifiable class of two or more people that would be represented by
          the representative plaintiff or defendant
               o The class must be bounded and defined by reference to objective criteria
     3. The claims of class members must raise common issues

            o     (a) An issue is common where its resolution is necessary to the resolution of
                  each class member‟s claim, and therefore allowing certification must be expected
                  to avoid duplication of fact finding and legal analysis on these common issues
             o (b) An issue will not be common unless it is a substantial ingredient of each
                  class member‟s case
   4. The preferability requirement asks that the class representative demonstrate that, given
        all of the circumstances of a particular claim, a class action would be preferable to other
        methods of resolving that claim such as joinder; this is determined by reference to three
             o Certification must serve judicial economy by avoiding unnecessary duplication in
                  fact finding and legal analysis
             o It must improve access to justice by distributing fixed litigation costs over a large
                  number of claimants
             o It must serving give wrongdoers an incentive to modify their behaviour
   5. There must be a representative plaintiff or defendant who
             o Would fairly and adequately represent the class
             o 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
             o Does not have, on the common issues, a conflict of interest
   *It is essential that the courts construe the five criteria in the Act generously*
Even interpreting the Act broadly, the five criteria are not met:
• There is a cause of action
        o If the facts are established, the representative plaintiff would win
• There is an identifiable class
        o The class is defined using the objective criteria of ownership or occupation of
             specified property inside a specified area within a specified time
• As to common issues
        o If each of the class members has a claim against the respondent, some aspect of the
             issue of liability is common –would have to show pollution was emitted etc.
        o The difficulty is whether there is a rational connection between the class as defined
             and the asserted common issues, i.e. whether all of the members of the class as
             defined share the same cause of action class is potentially over broad in relation to
             the common issues
        o While there is some debate, there seems to be a sufficient basis to satisfy the
             commonality element
• As to the three requirements of preferability
        o Any common issue is negligible in relation to the individual issues, as there is no
             reason to believe that any pollution was distributed evenly across the region or time
             period –huge individual differences
        o Allowing a class action would not serve the interests of justice; if it is true that claims
             are so small as to engage access to justice concerns, the Small Claims Trust Fund
             would provide an avenue of redress, and if the claims are too large for this fund, it is
             unlikely that the claims are independently viable $5001!
        o Behaviour modification is not a significant concern here; if class members have
             substantial claims they will prosecute their claims regardless, alternatively there is an
             alternative means to ensure behavior modification through Environmental Legislation
             -either way the respondent will be forced to internalize costs

Notes: (per H)
• Hollick changed default in preforability –P must not prove CA preferably not just say its‟
• Court uses preforability as lever to turn certification on/off based on merits of case and issue
   at stake
• CA lives/dies at certification –rubber stamp on merits of the case, provides leverage for

    settlement we now have a test that‟s incredibly discretionary!
•   If something fails one of the 3 branches of preforability –weigh this against the positives of
    the other 2


•   Once CA is certified notice must be given to all members of class by representative party
    (usually through advertising)
•   Courts can dispense with notice if it‟s too difficult to do


•   Once proceeding is certified, everyone in class as defined is presumed in by default
•   Once the class member has received the letter, he has the option of opting out
•   If the class member does not opt out, he remains part of the class
•   If he does opt out, he does not share in the class damages, but may get more money on his
•   Res Judicata in CA: those who opt out have neither the burden nor the benefit of RJ:
         o Would not improve judicial economy
         o Would not be fair to D to allow opt out P to benefit D will not have had a chance to


•   Limited to representative P
•   Once complete, D can bring a motion to discver other class members
•   If the defendant can successfully convince the court to permit a large number of additional
    discoveries, this may defeat certification by showing that the common issues do not dominate
•   Rule 15(3) CPA Factors court considers in deciding whether to grant the extra discovery
         o Burden and expense to class
         o Monetary value of claims
         o Any other factor that the court deems to be relevant


•   The Act provides that the common issues of the class will be determined first
•   This is because the common issues of the class generally surround notions of liability
•   Individual issues tend to focus on damages assessment
•   The liability is addressed first because, if no liability is found, there is then no need to
    investigate the remaining issues this is therefore an efficiency consideration
•   Courts have WIDE latitude in coming up with model of how to deal with individual issues –
    Webb (dismissal of Kmart employees D agreed to pay damages in lieu of notice –judge
    ordered those under $25,000 to be dealt with individually in small claims –D successful in
    overturning, only Chief Justice can direct sittings of Superior Court justices)


•   Where liability is found in favor of P the court has wide discretion on how to assess damages:
       o Case by case assessment & add up dollars for today award (reasonable for small #
            of P‟s)
       o Aggregate assessment of damages: total liability for damages is fixed by court then
            divided among class members by plaintiff‟s counsel (generally done when ind. claims
            are small)


•   Sometimes distributed based on average (aggregate assessment)
•   Sometimes distributed on case by case basis (D ordered to pay $ to specific P)
•   Cy-pres distribution: money or benefit goes to people who are not class members
       o Rogers cable over-charged some of its subscribers, $ distributed 5 yrs later –couldn‟t
           discover who was overcharged so court ordered Rogers to grant benefit to existing


•   Rule 29(2) CPA: All settlements must be approved by court in order to be binding
•   Done in order to ensure protection of absent class members
•   If class members object to the settlement, they have a forum to air their grievances at the
•   However, they may be precluded from doing so by contract
•   Once the settlement is approved, it is binding on every class members except those who
    opted out

Gariepy v. Shell (ON SCJ 2002)
Facts: Three defendants sold plumbing parts which failed
• The plaintiff brought a certification motion against all three –certification against H&S failed
• P reached settlement with Dupont before certification process was complete
• Once the settlement was reached, the plaintiff did bring a certification motion against Dupont,
    and the court applied a lower threshold for permitting certification because of the settlement
• The settlement was reversionary
        o Dupont agreed to set aside $30 million so that people would fix their plumbing and
            then apply to Dupont for reimbursement of 25% of their costs
        o If there was money left over, it would revert back to Dupont
        o The plaintiffs‟ counsel‟s fee was $4.5 million court reserved ruling on issue of fees
• Court ruled settlement provided fair measure of certainty in complicated action, there were no
    objections, appropriate case for bar order (won‟t bind future owners of product)
• H:
        o This is a perfect example of a conflict of interest between class counsel who is
            negotiating their own fee and the class (could be inflated amount –esp. if
        o The case settled, so it was not very costly, and also was not very time consuming,
            not risky


•   Ontario Class Proceedings Fund: to assist the plaintiff for paying for counsel and
•   Plaintiffs do not generally use the fund because:
        o Plaintiff‟s class counsel do not tell them about the risk of an adverse cost award
        o Lawyers indemnify clients on contingency basis
•   Lawyers do not want to do it because, if you apply to the fund and are successful, 10%
    comes off the top and goes into the fund
•   S.32 CPA: Factors courts look at when considering counsel fees:
        o Hourly rate for a lawyer
        o Number of hours worked
        o Discretionary multiplier to compensate for the downside risk
                   Multipliers will often be 5 times
                   Gagne v. Silcorp and Parsons v. Red Cross give insight on how a multiplier
                      is arrived at –must result in fair and reasonable compensation to solicitors

                     Factors considered: if it‟s grossly disproportionate compared to full award,
                      must provide economic incentive to lawyers, should be 3-4 for most
                      deserving cases
                   risk, success, complexity etc.
•   During the fee approval hearing, the defendant is not there, so plaintiff‟s counsel is essentially
    unopposed, P don‟t generally know they can oppose
•   This is particularly true where clients are contractually bound to approve of the fees
•   The court thus has a role of judicial oversight without the benefit of adversarial proceedings
•   Class counsel therefore has a distinct conflict of interest
•   H: There should be an amicus curiae (friend of the court)



•   Definition: written statement either P‟s claim or D‟s defence exchanged between parties
    before trial
        o most common are statement of claim and statement of defence

The Purpose of Pleadings:
The exchange of allegations by the parties in the form of pleadings serves several purposes:
• Defines questions in controversy between litigants
• Gives fair notice of case to opposing party so they can meet case before them
• Defines issues for purposes of discovery and settlement
• Assists court in adjudicating allegations made by the parties
• Constitutes a record for subsequent situations involving res judicata

Types of Pleadings:
Rule 25.01: 12 Types of Pleadings:
1. Statement of Claim:
   o P alleges the wrong done to them by D and what they want done about it
   o Party must plead material facts but NOT evidence
   o Requisite level of fact disclosure is directly related to the nature of the allegations being
2. Statement of Defence:
   o Four types of responses to plaintiff‟s allegations:
       a. Admissions to the allegations are true
       b. Denials to the allegations that the defendants does not want to admit
       c. No knowledge where the defendant need more information on a fact alleged
       d. Affirmative defences, where the facts alleged by the plaintiff are true, but there are
            further facts that would allow the defendant to avoid the result claimed by the plaintiff
3. Reply:
   o Pleading that P may file to deal with a new allegation that wasn‟t raised in statement of
   o Where the defendant does not reply to facts alleged by the defendant, the plaintiff is
       deemed to deny them, and reply is allowed but not necessary
   o Where the plaintiff wishes to plead an affirmative defence, a reply is necessary
4. Counter Claim:
   o D making separate claim back at the plaintiff or possibly against strangers to the litigation
       as well
   o Most commonly combined with statement of defence if D wants to make a counterclaim
       back against P AND another D (whether party to litigation or not) done by statement of
       defence and counter claim

      o   ** IF D wishes to bring in other parties WITHOUT counterclaim against P must use cross
          claim (if D is already a party) or third party claim (if D is stranger to litigation)
5.    Defence to Counter Claim:
      o Statement of defence issued by P to the counter claim
6.    Reply to Defence to Counter Claim:
7.    Cross Claim:
      o A transfer of liability from one defendant to another –both must be existing parties to
8.    Defence to Cross Claim
9.    Reply to Defence to Cross Claim
10.   Third Party Claim:
      o Stranger to litigation is brought in by D
      o Insurers most commonly brought in this way
11.   Third Party Defence
12.   Reply to Third Party Defence


Rule 25.06(1): Every pleading shall contain a concise statement of the material facts on which
the party relies for the claim or defence, but not the evidence by which those facts are to be
• Must have material facts to prove components of your cause of action (i.e. P had 10 beers in
    3 hours)
• NOT evidence (i.e. witness to went to D and said that P was intoxicated)
• Cause of actionComponentsminimum level of material fact disclosure (particulars)
• No evidence in pleading because all evidence must be sworn

Copland v. Commodore Business Machines -1985 ON Sup. Ct.
Facts: The plaintiff‟s employment was terminated without warning. Sued for wrongful dismissal.
In its statement of defence, the defendant used defence of just cause & made allegations
regarding the cause for which the plaintiff was terminated. (NOT counterclaim b/c D not claiming
back against P for separate cause of action) The plaintiff brought a motion for particulars.

Issue: How much information must contained in a statement of defence, in a wrongful dismissal
action, when the defendant employer seeks to plead dismissal for cause?

Rule 25.06(1):
• Every pleading shall contain a concise statement of the material facts on which the party
   relies…but not the evidence by which those facts are to be proved
• Court read into this rule that it mandates a minimum level of material fact disclosure that‟s
   specific to each unique cause of action.
• If this level is not reached, the remedy is not a motion for particulars, but rather a motion to
   strike out the pleading as irregular under Rule 25.11
• Particulars:
        o Rule 25.10 – Where a party demands particulars of an allegation in the pleading of
            an opposite party, and the opposite party fails to supply them within seven days, the
            court may order particulars to be delivered within a specified time
        o Fall into space between the concept of material facts and evidence
        o Additional bits of information which flush out material facts, but they are not so
            detailed as to amount to evidence
        o Particulars may be obtained under r. 25.10 if the party swears an affidavit showing
            that the particulars are necessary to enable him to plead to the attached pleading,

            and that the particulars are not within the knowledge of the party asking for them
        o   An affidavit is not necessary only where the pleading is so bald that the need for
            particulars is patently obvious from the pleading itself
•   The minimum level of material fact disclosure is very high for a statement of defence
    in a wrongful dismissal action, and the pleading must contain sufficient detail so that
    the employee can ascertain the exact nature of the questions to be tried, and so that
    the employee can meet the charge and respond in his reply accordingly

Whitten v. Pilot Insurance: 2002 SCC
Facts: Pilot insurance refused to pay out an insurance claim for a house which burned down, on
the grounds that they suspected the plaintiffs of arson, notwithstanding the fact that the fire
marshall found that there was no evidence. The jury gave the plaintiffs the full amount of the
claim plus $1 million in punitive damages. The Ontario Court of Appeal allowed the appeal in part
and reduced the punitive damage award to $100 thousand. The respondent insurance company
said that even if a separate claim arising under the insurance contract could provide the basis for
punitive damages, none was pleaded in this case, as the material facts necessary for the grant of
such an award are not spelled out in the body of the pleading.

Issue: The extent to which material facts must be provided to support a pleading for punitive

Decision: Reinstated jury award of $1 million
• The point of pleadings is to ensure notice to the other side and allow them to meet the case
   against them if someone is surprised something has gone wrong!
• Court held that the facts pleaded to justify a finding of punitive damages must be plead with
   some particularity
• BUT that there is an onus on the opponent to ask for particulars (shift away from Copland
   where motion could be made to strike pleadings if minimum level of material facts weren‟t

Application: The plaintiff specifically asked for punitive damages in her statement of claim and if
the respondent was in any doubt about the facts giving rise to the claim it ought to have applied
for particulars and it would have been entitled to them

MacDonald Construction Co. v. Ross
Facts: D was the solicitor to P. One of P‟s properties was destroyed by fire, and he instructed D
to take the necessary steps. D failed to do so, and the claim expired. During the course of his
closing argument, D advanced claim that even if he was negligent, it would not have made a
difference because the property in question was vacant on the date of the loss, contrary to the
terms of the policy. P‟s counsel objected that the argument had never been pleaded & therefore
should not be allowed. D argued that this defence was implicit in his pleadings, or in the
alternative, that he be permitted to amend his pleadings.

(a) Whether the defendant should be permitted to pursue this line of argument without pleading it
(b) If not, whether the defendant should be permitted to amend his pleadings (discretionary!)

• Pleadings must be framed so that they contain all material facts and matters in a manner
   sufficiently clear and concise to present the nature of the claim or defence so that the
   opposing party will not reasonably be taken by surprise
• Rule 15 provides that the court may allow a party to amend his pleadings at any time with
   leave of the Court at the discretion of the court
• The rules should not be so strictly and rigidly construed as to prevent justice from being done

Decision: D should be allowed to amend his pleadings but will have to pay P‟s costs
• Issue of vacancy was raised only once in trial evidence –t/f subtle groundwork had been laid
     by D
• Court accepted P‟s argument that had he know of this defence he would have structured
     case differently BUT court felt that D should not be denied opportunity to raise all relevant
• Court t/f allowed D to amend pleadings but would have to pay P‟s costs up to this delay
     process would begin all over –P would have to reply, discover, trial etc.
Ratio: The interest of the plaintiff in being given adequate notice must be balanced with the
interest of the defendant in seeing that justice is done

Rule 25.06(2) Conclusions of Law in Pleadings
• Rule 25.06(2): A party may raise any point of law in a pleading, but conclusions of law may
    be pleaded only if the material facts supporting them are pleaded
• In order to properly plead law you must have material facts to establish obligation –i.e. if your
    statement of claim is connected to statute you have to plead statute with particularity
• Famous Players v. JJ Turner:
        o Stands for the proposition that it is proper to plead a conclusion of law if it is
            supported by the material facts upon which the conclusion is based
• Conclusions of law: Richardson House and Richardson were negligent
• Pleading alternative scenarios at outset of litigation is common especially since P will often
    not know all material facts before discovery (especially in personal injury law) put
    everything in at the beginning and drop points as more information is acquired in discovery
• If something is left out file motion to amend pleadings –Rule 26.01(with leave) 26.02 (without)


Three grounds for challenging a pleading:
1. Rule 25.11: Motion to strike
2. Rule 25.10: Motion for particulars
3. Rule 21.01: Motion to strike pleading or stay/dismiss action

Rule 25.11: Motion to strike
Rule 25.11: The court may strike out or expunge all or part of a pleading or other document, with
or without leave to amend, on the ground that the pleading or other document:
    a) May prejudice or delay the fair trial of the action
    • H: This is a technical attack on the pleading; it focuses on whether the mechanical rules
        of the pleading have been satisfied
    b) Is scandalous, frivolous or vexatious; or
    • H: i.e. indecent offensive allegation that‟s made to prejudice other side (i.e. adultery in br.
        of K)
    c) Is an abuse of the process of the court
• Must be brought before party replies
• Stops the clock on time limit to respond (20,40,60 days)
• Move by motion under this rule is statement of claim is missing material facts

Rule 25.10: Motion for particulars
Rule 25.10: Where a party demands particulars of an allegation in the pleading of an opposite
party, and the opposite party fails to supply them within seven days, the court may order
particulars to be delivered within a specified time.
• Purpose of particulars:
         o Define the issues
         o Give appropriate notice (prevent surprise)
         o Enables parties to prepare for trial

        o Facilitates hearings
•   Motion will be dealt with on case by case basis –remedy will depend on deficiency and
•   Must be brought before party replies
•   Move by this motion is pleading is missing particulars

Rule 21.01(1)(b): Motion to strike pleading or stay/dismiss action
 Rule 21.01 (1)(b): A party may move before a judge:
(b)To strike out a pleading on the ground that it discloses no reasonable cause of action or
    • The most basic requirement of a pleading is that it disclose a cause of action
        o In order to be considered substantively adequate, a statement of claim must
             articulate a set of facts which, if true, would entitle the plaintiff to the legal relief
        o If the statement of claim fails to do so, the defendant may attack the pleading through
             a motion to strike
        o Statement of defence must meet the same threshold and can be similarly contested
             by P under this rule
    • The motion attacks the pleading as putting forth a claim that is unsubstantiated by law
    • Different from 25.11 which attacks technical deficiencies in pleading or the way they are
        communicated -21 is problem with your entire case that can‟t be cured through

Example –Dawson v. Rexcraft Storage 1998 OCA
Facts: none listed.
Issue: In this case, the court addresses motions to strike under Ontario rule 21.01(1)(b)
• Essence of the defendant‟s motion is that the wrong described in the statement of claim is not
    recognized as a violation of the plaintiff‟s legal rights, with the result that the court would be
    unable to grant a remedy even if the plaintiff proved all of the facts alleged
• This may be because:
    o The act is not proscribed under the law, for instance making a face at the plaintiff
    o One of the elements is not proven, e.g. failure to prove a duty of care
• Use Rule 21 to strike pleading on ground it discloses no cause of action (even with all
    material facts proven, case wouldn‟t succeed because there‟s no law to support claim –the
    wrong described in the statement of claim is not recognized as a violation of the plaintiff‟s
    legal rights) vs. Rule 20 (facts are inadequate to show that law has been violated –there is no
    genuine issue of fact for trial.)
• Because dismissal of an action for failure to state a reasonable cause of action is a drastic
    measure, the court is required to give a generous reading to the statement of claim,
    construe it in the light most favourable to the plaintiff, and be satisfied that it is plain
    and obvious that the plaintiff cannot succeed
Notes: (As per H)
• A motion to strike a statement cannot be brought if the maker of the motion has already
    responded to the statement parallel to attorning to jurisdiction
• Rule 21 isn‟t intended to address merits but in reality it does –rubber stamp

Example –Jane Doe v. Board of Commissioners of Police ON Div Ct.
Facts: P assaulted by intruder apparent to her that board police knew about predator and type of
target but didn‟t warn residents (because they wanted to use targets as bait) The plaintiff brought
an action against the defendant board, framed both in tort and as a violation of s. 7 and s. 15 of
the Charter.
• D challenged the substantive adequacy of the statement of claim, both because it sought to
    advance a claim unknown to law (21.01(b)), and because the pleading failed to plead

     sufficient material facts to establish a sufficiently proximate relationship between herself and
     the police (25.11)
(a) Do pleadings support a cause of action in tort?
(b) Do pleadings support a cause of action under Charter?
(c) Have these causes of action been properly pleaded
Decision: Decision for the plaintiff; motion dismissed.
• The pleadings must disclose a cause of action in law; so long as this criterion is met, the
     novelty of the cause is of no concern
• In a motion to strike a pleading as disclosing no cause of action, the court must treat the
     material facts as being proven
• If the facts, taken as proved disclose a reasonable cause of action, i.e. one with “some
     chance” of success, then the action may proceed
• The statement must be read as generously as possible, with a view to accommodating any
     inadequacies in the form of allegations due to drafting deficiencies
(a) & (b) The plaintiff has pleaded facts which give her some chance of successfully establishing
a cause of action
• S. 15 (discrimination based on sex), S.7 (security of person based on policy of apprehending
     criminal over protecting society), & tort claim
(c) Pleadings were sufficient with respect to general rules of pleadings
• Given that the court will be flexible, it is willing to imply material facts into the pleadings (i.e.
     failed to plead proximate relationship with police)
• Court relied on principle of pleadings being read generously to accommodate drafting
Notes: (as per H)
• Policy hidden in procedural decisions similar to Hollick where court wasn‟t swayed by noise
     pollution, here court allows her to proceed and is even helping her fix pleadings to be
Court still asserts that this is not a meritorious evaluation

   These two cases serve as an important reminder for drafting pleadings: Not only must the
    pleading be premised on a legally recognized cause of action (or at least not one obviously
    destined to fail) it must also articulate sufficient material facts to demonstrate a factual
    foundation for each element of that cause of action



Rule 26.02: When a Party May Amend its Pleadings
Rule 26.02: A party may amend the party‟s pleading:
(a) Without leave, before the close of pleadings, if the amendment does not include or
necessitate the addition, deletion or substitution of a party to the action
• Close of pleadings = moment when everyone who can plead has –time period for reply has
(b) At any time on filing the consent of all parties and, where a person is to be added or
substituted as a party, the person‟s consent; OR
(c) At any time with leave of the court

Rule 26.01: The Power of the Court to Grant Leave to Amend
Rule 26.01: On motion at any stage of an action the court shall grant leave to amend a pleading
on such terms as are just, unless prejudice would result that could not be compensated for by
costs or an adjournment

•   H: Here court is balancing right to have your case heard against other party‟s right not to
    have litigation stretched out (once SOC is amended you begin process all over again)
•   Practical implication –very difficult to show you can‟t be compensated for by cost or
•   Courts don‟t like shall have found discretion in “on such terms as are just” and “compensable”

Example –Mazzuka v. Silvercreek Pharmacy Ltd. (2001, OCA)
Facts: A fire occurred at premises leased by Silvercreek. The inventory of the corporation La
Gondola was damaged. Mazzuca was the sole shareholder and brought a claim in her own
name. It later became apparent that the proper claimant was the corporation.
Issue: Whether the pleadings can be amended.
Decision: Decision for Mazzuca; the amendment is permitted.
Rule 26.01: The court must grant leave absent non-compensable prejudice
Rule 5.04(2):
• The court has discretion to amend parties unless prejudice would result
• In motions under this rule, the courts retain the discretion to deny an amendment in a proper
    case, evening the absence of non-compensable prejudice
Rule 1.04(1): These rules shall be liberally construed to secure the just, most expeditious and
least expensive determination of every civil proceeding on its merits
Application: There is no prejudice to Silvercreek
Ratio: Under Rule 26.01 once the party seeking the amendment can show that the other party
would not suffer non-compensable prejudice as a consequence of the amendment, the
amendment should be allowed.

The Power of the Court to “Reconstitute Action”

Rule 5.04(2): At any stage of a proceeding the court may by order add, delete or substitute a
party or correct the name of a party incorrectly named, on such terms as are just, unless
prejudice would result that could not be compensated for by costs or an adjournment
• This is discretionary rather than mandatory, because the language say “may” rather than
    “shall” -26.01
• This is done in the context of joinder, such that the court unhooks joinder, or separates
    parties that have been improperly joined
On an exam:
• There could be a question in the context of court power
• There could be a broader question about whether we still have an adversarial system
• There could be a strategic question about the options available to the client at this stage (i.e.
    Mazzuka‟s best argument would be under 26.01(shall) rather than 5.04(2) (may)
• If party would like to add breach of contract claim –must move under 26.01 ( 5 only applies to


• D‟s ability to object to joinder of claims is extremely limited:
Rule 5.05: Where it appears that the joinder of multiple claims or parties in the same proceeding
may unduly complicate or delay the hearing or cause undue prejudice to a party, the court may,
   a) order separate hearings;
   b) require one or more of the claims to be asserted, if at all, in another proceeding;
   c) order that a party be compensated by costs for having to attend, or be relieved from
        attending, any part of a hearing in which the party has no interest;
   d) stay the proceeding against a defendant or respondent, pending the hearing of the
        proceeding against another defendant or respondent, on condition that the party against
        whom the proceeding is stayed is bound by the findings made at the hearing against the
        other defendant or respondent;
   e) make such other order as is just

Rule 5.01: Permissive Joinder of Claims
(1) A plaintiff or applicant may in the same proceeding join any claims the plaintiff or applicant
has against an opposite party
(2) A plaintiff or applicant may sue in different capacities and a defendant or respondent may be
sued in different capacities in the same proceeding.
(3) Where there is more than one defendant or respondent, it is not necessary for each to have
an interest in all the relief claimed or in each claim included in the proceeding.

Rule 5.02: Permissive Joinde of Parties:
Joinder of multiple plaintiffs where they are represented by the same solicitor is permissible
    o They assert claims to relief arising out of the same transaction or occurrence
    o A common question of law or fact
    o It would promote the convenient administration of justice
    o Each clause is an independent ground for joinder

•   Ability to challege joinder of parties is slightly more broad BUT basic position is that subject to
    the appropriate joinder rules (5.02 (permissive), 5.03 (compulsory) & 5.05(relief against) P
    decides the parties of the litigation


The defendant‟s options with respect to the expansion of litigation relate to the following:
• Where the defendant has a potential claim against the plaintiff (counterclaim)
• Where the defendant wishes to assert claims against a co-defendant (cross claim)
• Where the defendant wishes to assert claims against a person not a party to the litigation (3

1. Rule 27: Counterclaim
• Rule 27 (1) Counterclaim against P: A defendant may assert, by way of counterclaim in the
    main action, any right or claim against the plaintiff including a claim for contribution or
    indemnity under the Negligence Act in respect of another party‟s claim against the defendant
• Rule 27(2) Counterclaim against P and another party: A defendant who counterclaims
    against a plaintiff may join as a defendant to the counterclaim any other person, whether a
    party to the main action or not, who is a necessary or proper party to the counterclaim
** NOTE: If D wishes to bring in another party WITHOUT making a claim back against P –must
use cross claim (if D is already a party) or third party claim (if D is stranger to litigation)
• Example: This is an important concept for the EXAM
         o The plaintiff is suing the defendant for not paying for a bike
         o The defendant claims that he gave the money to the plaintiff‟s mother, and the
             mother therefore needs to be at the table
         o If the defendant‟s defence is only that he gave the money to the mother, then he
             must bring her in by way of third party claim
         o If the defendant says both that he paid the mother and that the bike was broken in
             the first place, then the defendant can bring the mother in using the counterclaim
• Rule 27.08:
• (1) A counterclaim shall be tried at the trial of the main action, unless the court orders
• (2) Where it appears that a counterclaim may unduly complicate or delay the trial of the
    main action, or cause undue prejudice to a party, the court may order separate trials or order
    that the counterclaim proceed as a separate action H: Jointer is all about efficiency up to
    tipping point

Example –Lid Brokerage v. Budd (Sask QB 1992)
Facts: The plaintiff‟s allege that the defendants caused financial damage to the produce
brokerage business operated by the two defendants. The plaintiff then applied to add four new

defendants, the wives of the defendants and two related corporations, on the basis that they
didn‟t realize these four were connected to the defendants until after discovery. One of the
original defendant corporations was Star Produce Ltd. Star Produce requested leave to
counterclaim against the plaintiff and against seven proposed new defendants by way of
counterclaim. Star Produce did not bring this counterclaim at the time of the pleadings, and time
limit had expired. Star Processing (one of the proposed D‟s) also wishes to join Star Produce in
the counterclaim.
Issue: Should Star Processing (a proposed new D) be able to join Star Produce in the counter
• P (LB): CC is unrelated & this was just a stalling tactic by the defendant –inefficient & intent is
• D counterclaim will avoid a multiplicity of proceedings & both arise out of same series of
Decision: Court views situation as one where prejudice can be compensated with cost (allows D
to expand litigation)
• D had to pay anticipated costs to P ($3500) –H: can you compensate P fully when D is
     accused of having done this on purpose?
• Leave should be granted to the applicant (the paramount consideration being convenience
     and the avoidance of multiple proceedings) unless the party opposing the proposed
     counterclaim establishes that:
         o The counterclaim, even if delivered on time, could have been struck as disclosing no
              cause of action
         o There are extenuating circumstances which would render it inequitable to grant leave
              (such as an intervening limitation period barring the defendant from bringing a
              separate action)
         o The proposed counterclaim will so unduly complicate or delay the trial of the main
              action that the benefits of avoiding multiple legal actions are outweighed by prejudice
              to the plaintiff that cannot reasonably or adequately be compensated by conditions
              attached to such leave
• Where P will otherwise suffer prejudice due to the delay on the part of the defendant in
     bringing the counterclaim, the plaintiff should be adequately compensated for such
     unnecessary prejudice
• If the counterclaim will add new parties to the action, consideration should be given as to
     whether the subject matter of the counterclaim is related to or connected with the subject
     matter of the main action
         o H: here court is suggesting ways of interpreting efficiency –if subject matters are
              totally different this will result in inefficiencies and shouldn‟t be allowed

Example –Teledata Communications v. Westburne (ON HC 1990)
Facts: The plaintiffs sued for breach of contract. The defendants launched a counterclaim for
damages and punitive damages, on the basis that the suit is malicious, and is therefore an abuse
of process. The plaintiffs brought a motion to strike the counterclaim on the basis that the mere
bringing of a claim cannot be tortious.
Issue: Can bringing a lawsuit that‟s groundless or improperly motivated be a tort of abuse of
Decision: Decision for the plaintiffs with costs; counterclaim struck out
• The bringing of an action, even if factually groundless and brought with an improper motive,
    is not sufficient to constitute the tort of abuse of process
Notes: D who believes claim is unfounded or brought with improper motive has 2 options:
• Rule 21: Make motion to have claim struck out for no cause of action
Not defend and allow claim to go into default proceeding, P would have to plead damages to
judge (unliquidated damages) who could find the claim to be an abuse of process


•   Counter claim = a cross action because it‟s an independent action back against P
•   Set-off = a defence which operates to bar P‟s entire claim or a portion of it
        o Set off is therefore a RIGHT that arises in different scenarios
        o Set off is therefore pleaded in the STATEMENT OF DEFENCE
        o i.e. the defendant owes the plaintiff $1000, but the plaintiff owes the defendant $300
             from a separate claim
        o Quantum of set off CAN exceed quantum of claim
        o If your unable to meet criteria for set-off would have to move by way of counter claim
        o Two types of set-off: Legal & Equitable

Legal Set Off:
• The right of the defendant, when sued for payment of a debt, to set off against the plaintiff‟s
   claim by way of defence a liquidated debt owed by the plaintiff to the defendant
       o Only applies when both parties are claiming liquidated debt
       o i.e. rent, loan, IOU, contract that specifies $ amount
       o Governed by s.111 Courts of Justice Act
       o If the defendant's successful set off is greater in amount that the plaintiff's claim, it will
           result in the defendant gaining extra money.

Equitable Set Off:
• Arises when the defendant has a claim for un-liquidated damages against the plaintiff‟s
   claim in debt
• This is a common law doctrine, not governed by the CJA and is based in equity
• Test: a defendant may be entitled to set off the un-liquidated claim only where the competing
   claims arise out of:
        o (a) the same transaction OR
        o (b) the same relationship
• AND where it would be unfair to allow the plaintiff to succeed in her claim without allowing the

Advantages of Set-off over counter claim:
(A) Costs:
• Setoff is a defence, therefore its part of the original claim if you are successful you will have
    successfully defended the claim and will be entitled to costs Rule 57.01 (even if partially
    successful can still argue in cost award as they are discretionary)
• By contrast, if the money was asserted by way of counterclaim, you would only be entitled to
    the cost of the counterclaim & if P is successful in original claim they will get costs for that
(B) Limitations Act:
• As a separate action, a counter claim is subject to any limitations that would pertain to that
    action under the limitations act
• In the case of set-off by contrast, as long as the limitation period for the debt your claiming
    expires after the date the original action commenced you can still bring your set off defence
(C) The plaintiff is bankrupt:
• If the debt is pursued by way of counterclaim, D will have to enforce the order against P to
        o If P is awarded $1000 in the main claim D will have to pay but will have to get in line
            with the creditors for the $300 he was ordered to receive under the counter claim –
            won‟t be able to enforce order.
• Through set-off, D can collect their money by only having to pay the difference to P (i.e.

Advantages of Counterclaim:
 Separate action therefore you will always be able to get damages above and beyond the
   difference between your award and damages in the main action

2. Rule 28: Cross Claim
• By permitting co-defendants to claim against each other by crossclaim, the rule obviates the
    need for defendants to sue by way of separate action and then move to have the claims
• 28.01(1):
         o The defendant may crossclaim in respect of any claim that is related to the claims or
              transactions involved in the main action
         o The circumstances in which a crossclaim can be made against a co-defendant are
              identical to the circumstances in which a defendant may take third party proceedings
              against a non-party
         o Parties brought in by cross claim will be bound by determination of issues between
• The reason for the availability of cross-claims is the increase in efficiency, as they are more
    efficient than both separate actions and third party claims

3. Rule 29: Third Party Claim
• Historically & still most commonly used by D to bring in stranger to litigation when there‟s a
     right of contribution or indemnity (i.e. insurance)
• The idea is that the defendant denies wrongdoing but would issue a Third Party Claim
     alleging that, notwithstanding its denial of liability, it claims indemnity from the third party for
     any losses it is found to owe the plaintiff
• Third party brought into litigation has the right to defend against third party claim AND main
     action would issue statement of defence for third party claim and main action
• In order to prevent third party D from being jeopardized by poor defence in main action
• P also has a right to be part of the action between D and the third party
• Therefore all parties bound by decisions made on issues
Rule 29(1): A defendant may commence a third party claim against any person who is not a party
to the action and who,
(a) is or may be liable to the defendant for all or part of the plaintiff‟s claim;
(b) is or may be liable to the defendant for an independent claim for relief arising out of,
      (i) a transaction or occurrence or series of transactions or occurrences involved in the
main action, or
     (ii) a related transaction or occurrence or series of transactions or occurrences; or
(c) should be bound by the determination of an issue arising between the plaintiff and the

•   Therefore Rule 29 expands third party claims to allow independent claims if D can argue they
    show a connection to the main action
•   Policy surrounding this is efficiency –join as much together as possible until it becomes

Example –Daniel Industries v. Alberta Energy (Alta. CA 1989)
Facts: P contracted with D to supply 16 widgets. P also contracted with 3p to install them. After
some time, one of the widgets blew up. On advice of the 3p, all widgets were replaced with
widgets from another supplier. The plaintiff sued the defendant, not the 3p. The defendant issued
a third party claim to bring installer in. The plaintiff moved to strike the third party notice or,
alternatively, to stay it until after trial. The motions judge stayed the third party action until after
the main action was decided; the defendant appealed.
Decision: Decision for the defendant; the third party claim can be made.
• It is better to have the fact situation tried before one judge rather than two, both because of
     expense and because of the risk of inconsistent findings court avoiding rigidity of rules
• In this case, the 3p claim was necessary because the plaintiff chose not to sue the 3p
Notes: An alternative would be a motion by D for compulsory joinder

Example –Carswell v. Traders General Inc (Ont. Dist. Ct. 1987)
Facts: P suffered damages to their property as a result of flooding caused by blasting operations
conducted on the property adjacent to theirs. They sued for compensation under their insurance
policy. The insurer brought a third party against the town of Bracebridge, claiming its right to bring
an action in the name of the insured (didn‟t have relationship with B themselves). As such I has
right to discovery they wouldn‟t otherwise have. B brought a motion to strike the 3p claim on the
grounds that under the Insurance Act:
• Only an insurer who makes payment pursuant to an insurance contract is subrogated
• The right of subrogation does not arise unless and until the insurer has admitted the insured‟s
     claim and paid the sum payable pursuant to the policy
The insurer cited R. 29.01 of the Ontario Rules of Civil Procedure, according to which:
• A defendant is entitled to commence a third party claim against any person who should be
     bound by the determination of an issue arising between the plaintiff and the defendant

Issue: Does Rule 29 operate to change the common law around subrogation. Prior to Rule 29 –
could only have 3 party claim where there was contribution or indemnity.

Decision: The insurer has a right to make an independent claim under Rule 29.01(b)
• Town could be added as 3 party with condition that right of subrogation would still apply
• There will not be a finding against B unless/until insurer has been found liable to P and paid
• The insurer has a right to obtain discovery against the city, which would not happen absent a
   third party
• The city should be bound by the findings
• The primary consideration is to ensure that “all parties involved in the same factual
   situation have their rights determined without a multiplicity of proceedings”

Example –Hannah v. Canadian Gen Ins (Ont. SC 1989)
Facts: P suffered damage to his property caused by blasting on an adjacent property. The
plaintiff sued his insurer, under explosion coverage. D made a motion before trial to have the
action adjourned and for an order to P to add the blasting company as a defendant.
• D cited the possibility of inconsistent findings if the insurer has to bring separate claims, &
     extra expense & time caused by two claims.
• P claimed prejudice of the delay caused by D‟s failure to bring the motion until four days
     before trial.
Decision: Prejudice to P 4 days before trial outweighed D‟s policy arguments of inconsistent
findings and blasting company needing to participate in the interests of justice
• P has right to set parameters of litigation
• D could have brought 3 party claim earlier
• Carswell & Hannah about whether common law of subrogation can survive new rules
• Subrogation against res judicata re litigating same issues
          o raises same policy issues as res judicata inconsistent findings!!


The Rules of Civil Procedure are designed to encourage settlement of cases without resort to
adjudication using three measures:
        o Offers to settle

        o   Case management
        o   Mandatory mediation

•   Common thread through all procedural reforms is increased management of civil litigation
    process by judges or those external to the model

On the exam, it is important to consider whether it is appropriate to have a system
designed to minimize adjudication
• Advantages of settlement:
         o Minimizes the cost of litigating, as the most expensive component is the trial
         o It also reduces the administrative burden on the courts & ensures judicial resources
              are used more efficiently as only those cases which require judicial opinion arrive
              before the courts
         o The typical two party lawsuit takes 5 years to resolve and results in a judgement of
              $55,000 and costs $38,000 –as a result # of cases launched in last 20 years is down
              76% (access to justice)
• With these notions in mind, it is one of the foundational beliefs of our system that reducing
    the burden of litigation is the best answer
• H: This assumption that settlement is more efficient is an untested one:
         o More people able to get to court doesn‟t necessarily = more justice
         o Only measuring efficiency with certain markers –less work = more clumsy
• The most famous advocate against settlement is Owen Fiss, who argues that if this is taken
    to its logical conclusion, the law would not progress
• H:
         o This is fallacious
         o Many cases will continue to go to trial, for instance Jane Doe which was a novel
              claim, and would therefore be almost certain to go to trial
         o The cases that the Rules aim to settle would not be expected to advance the
              common law
• High proportion of cases settle (95%) & most right before trial
         o This is behind the big push toward case management –intermittent deadlines forces
              lawyers to turn their minds to file


•   Rule applies to both actions and applications and is designed to encourage parties to settle
•   Reasonable offers of settlement are encouraged to be accepted by awarding of costs
•   If the resulting order after trial shows that it would have been better for the offeree to have
    accepted it, then the offeror would secure a better order as to costs than would otherwise
    have been the case
•   The effect is to impose on any party that refuses to accept what is later determined by the
    court to have been a reasonable offer by the opposite party the penalty of serious adverse
•   If you failed to accept offer of settlement that was equaled or bettered at trial you were
    unreasonable by failing to accept it we know it was reasonable settlement because of the
    trial outcome
•   The Rule 49 offer offer to dispose of all or some of the issues
          o Cost consequences would be associated with only that part of the case offered to
•   Generally served on form 49(a) but Lyndsay decision court found any written offer to settle
    will trigger Rule 49
•   If the offer is accepted, it forms a binding contract
          o The offer can be accepted by the offeree‟s solicitor unless the offeror is aware that
              the offeree‟s lawyer did not have instructions that allowed settlement

        o    If the lawyer binds her client without instructions, the client may then go after the

Types of Offers
• Any claim asserted in statement of claim, counter claim or third party claim can attract a Rule
   49 settlement
       o This favours efficiency (H: not necessarily justice)

Acceptance of Offer and Motion for Judgment
• At common law when an original offer to contract is rejected by the offeree, or offeree comes
   back with a counter offer, the original offer dies
Rule 49.07:
• If recipient rejects or makes a counter offer that is not accepted, the recipient can still accept
   the original offer at a later date unless:
       o (a) the offer is specifically withdrawn by offeror OR
       o (b) the court has resolved the claim on which the offer is based

Rule 49.09:
• If a party accepts an offer but fails to fulfill their obligations the other party can:
       o (a) move for judgment on the terms of the accepted offer OR
       o (b) continue the proceeding as if there was no offer

Prerequisites to Applicability & Cost Consequences of Rejecting a Reasonable Offer
Rule 49.10: This governs the cost consequences that will flow if an offer to settle is not accepted
and the parties must go to trial
**Assuming all the pre-requisits of Rule 49 are met cost consequences flow if the offer to settle is
not accepted and the party who made the offer obtains at trial a result that is equal or more
favourable to them than the settlement offer

49.10(1): Governs situations where the plaintiff makes an offer
a) Offer must be made at least 7 days before the commencement of the hearing
    o This avoids rewarding costs for court house step settlements that don‟t improve efficiency
b) Offer must not withdrawn by or expired by the time of the hearing
    o Offers always open until one minute after the commencement of trial
c) Offer must not have been accepted by the defendant

Under this Rule, there are two scenarios (two under Rule 49.10(2), making four scenarios in all)
1. If the plaintiff‟s recovery equals or betters the amount of the plaintiff‟s offer to settle, the
    plaintiff will receive:
        i. Partial indemnity costs up to the date of the offer (about 60%)
       ii. Substantial indemnity costs after the date of the offer (about 90%)
H: This is because the defendant was presumably being unreasonable, and the court is therefore
penalizing him; moreover, the plaintiff is being rewarded for making a reasonable offer
2. If the plaintiff‟s recovery is greater than the defendant‟s offer but lower than the plaintiff‟s offer
        i. The plaintiff will receive partial indemnity throughout the action
H: Again, the thinking of the court comes down to what is reasonable –both reasonable or both

Rule 49.10(2): Governs situations where the defendant makes an offer
a) Offer must be made at least 7 days before the commencement of the hearing
b) Offer must not withdrawn by or expired by the time of the hearing
c) Offer must not accepted by the plaintiff

Under this Rule, there are two scenarios:
1. If the plaintiff‟s recovery is equal to or less than the defendant‟s offer

             i. Up until the date of the reasonable offer, the plaintiff gets partial indemnity costs,
                because he is a successful plaintiff and won at trial
            ii. Following the offer, the defendant gets partial indemnity even though they lost the
H: This is very punitive for P who won at trial, especially if offer was put in at beginning of
Why doesn‟t D get substantial indemnity instead of partial if P was unreasonable?
2. If the plaintiff‟s action is dismissed, and the plaintiff doesn‟t recover at all
             i. The defendant gets partial indemnity throughout the trial
H: D would get this award of cost regardless of whether Rule 49 offer were in place, this seems to
suggest D doesn‟t access substantial indemnity at all under this rule encourages access to
justice for P

•   Rule 49 provides prima facie grounds to award costs –court retains residual discretion to
    award costs:
    o Rule 49(1) & (2) both contain language “unless the court orders otherwise”
    o Rule 49.13: Despite Rule 49 court may take into consideration any written offer
            o This gives wiggle room to argue for substantial indemnity under scenario 4
                 courts should reward reasonable D and punish unreasonable P
    • When court is deciding whether to exercise discretion in straying away from the scheme
        of Rule 49.10:
            o The complexity of the matter will NOT be considered
            o An absence of any attempt to compromise MAY be considered
                      • P offers to settle for 100% with SOC and D replies with offer to settle for
                         $0 with statement of defence
                      • But an offer from P to settle for 100% of the claim, but without costs will
                         still trigger cost consequences for the defendant if the plaintiff is awarded
                         100% of his claim
            o An offer made in good faith by the defendant that does not achieve cost benefits
                 will NOT be taken into account as a mitigating factor for the defendant
                      • D offers $79,500 and the plaintiff recovers $80,000
H: Bottom line is that Rule 49 is a very rigid one and it is very hard to push for discretion

Example –Niagara Structural Steel v. W.D. LaFlamme Ltd. (CA 1987)
Facts: D appealing from a judgment in which P was awarded damages against D for the balance
owing on a construction contract between the parties (in which P was a subcontractor to D who
was the general contractor to a project with the ministry). P was awarded damages b/c trial judge
held that the subcontract had been extended (D‟s counterclaim for damages as a result of delay
was dismissed)
• P had delivered a Rule 49 offer to settle, which was rejected, and the plaintiff then beat the
      offer at trial
• Ordinarily, this would mean that the defendant must pay substantial indemnity from the date
      of the offer, however the TJ exercised her discretion for two reasons:
           o (a) Complexity of the case
           o (b) The defendant at all times acted in good faith
• The plaintiff appealed
Decision: P‟s appeal successful –P should get substantial indemnity costs from date of offer to
• CA said that where Rule 49 first came, there was inconsistency in the way that courts were
      applying it, and is important to have certainty in the law now
• Accordingly, the court may only depart from the model in very clear cases
• The court should only depart from Rule 49 and use discretion if two factors are met: -
           o If the court gives due weight to:
                      the policy behind the rule AND
                      the importance of reasonable predictability and the even application of the

        o If the interests of justice require a departure
• As a consequence, the court held that complexity and good faith are not enough to
    justify an exercise in discretion
H: This case does not provide much clarity


•   Case management results in courts becoming much more proactive in establishing time lines
    and setting pace of litigation
        o This entails a shifting role of judges –actively attempting to hurry cases through
            system b/c of burden
        o We‟re moving more toward an inquisitorial model all in the interests of increasing
        o Contrast this with traditional notions of the adversarial system - the court was not
            supposed to get involved with scheduling, but rather was supposed to sit back and
        o Ontario is most enthusiastic about this policy

Rule 77
• Applies only in Toronto, Ottawa and Windsor
• Under 2001 pilot project 25% of all eligible cases would be randomly assigned to be case
    managed (tort, contract eligible, family = ineligible)
• Now all eligible cases are case managed –people file cases outside Toronto to not be case
• Beginning 2005 senior justice of Toronto commenced pilot project that limited case
    management in Toronto under Rule 78
Rule 77.01(4)
A time prescribed by any of the rules may be extended only by order of the court

Rationale for Case Management
Rule 77.02: The purpose of this Rule is to establish a case management system throughout
Ontario that reduces unnecessary cost and delay in civil litigation, facilitates early and fair
settlements and brings proceedings expeditiously to a just determination while allowing sufficient
time for the conduct of the proceeding

The Structure of Case Management
Rule 77.06(5) Choice of Tracks
When action is commenced, P chooses the track –either fast track or standard track
• On the fast track: (d) deadlines come much quicker (b) there is much less flexibility for
• Convening a settlement conference  sides sit down with a judge other than the trial judge
        o In standard track the plaintiff has up to 8 months to establish that conference
        o In fast track there must be 5 months
• Both include mandatory mediation within 90 days of filing first defence BUT standard
   track allows it to be postponed to 159 days from filing with consent of both parties
• Both tracks include a case conference to set up litigation timetable within 30 days of
   unsuccessful mediation
• Defendants generally prefer the normal track to the fast track, plaintiffs the fast track

Rule 77.08: Dismissal by Registrar
Administrative Dismissal: if no defence has been filed within 180 days of issue (NOT SERVICE)
of originating process the registrar shall make an order dismissing the proceeding as abandoned
• NOTE: Under Rule 14.08 you have 6 months to serve a statement of claim

•   Rule 77.08 trumps Rule 14.08 therefore under case managed actions you have much less
    time to serve statement of claim otherwise it will be automatically dismissed (unlike non-case
    managed system where you can proceed even if you miss deadline of statement of defence)
•   Under this rule you would move to have D noted into default once time period for
    statement of defence has past to avoid having proceeding dismissed
•   This Rule was added in response to commission finding that there were many cases in
    registrar that hadn‟t had any activity in years

Rule 77.09(3) Assignment to Case Management Judge/Team
Once the first defence has been received in an action, the proceeding is then assigned to a case
management team or judge (in Toronto it is a team)

Rule 77.10 Timetables in Compliance with Deadlines
Rule 77.10(1) If a party fails to comply with a time requirement established by rules, case
management judge may convene a case conference and at the case conference may:
(a) establish or amend a timetable and order the party to comply with it; and
(b) order the party to pay costs
• Both tracks require litigation timetable to be established (180 days for ST, 120 for FT)
        o Outlines stages of litigation and dates by which they will be completed (i.e. discovery)
        o Once timetable is set (through consent or team) parties must comply
        o Toronto lawyers would make motions to get out of deadlines –premised Winkler
Rule 77.10(7) If parties fail to comply with time requirements master may:
• (a) Strike out pleadings
• (b) Dismiss the pleading
• (c) Dismiss the defence

Rule 77.11 Case Management Powers
(1) A case management judge or case management master may,
(a) extend or abridge a time prescribed by an order or the rules;
(b) transfer a proceeding from one track to the other
(e) make orders, impose terms, give directions and award costs as necessary to carry out the
purpose of this Rule
• Provides very broad power to judge/master & allows them to make decisions very early on so
    as not to delay and increase costs

Rule 77.12 Motions
• A motion may be made to a case management judge or master
• The idea behind this was that motions would become more streamlined
• This is not what happened in Toronto (by contrast with Ottawa)

Two types of conferences provided for in case management not provided for in traditional
adversarial system (more typical of inquisitorial system –hybrids generally raise questions of
(A) Rule 77.13 Case Conferences
• Provides opportunity for all parties to meet at early stage and allows judge to ensure parties
     have investigated settlement
• Can be convened at any time by case management judge or at request of parties
• Can be used to deal with broad range of matters including drawing up litigation timetable
• In TO litigation timetable was constantly being reviewed

(B) Rule 77.14 Settlement Conferences
• Mandatory conference to attempt to reach settlement agreement
• Must be held within 150 days for fast track and 240 days for standard of filing of first defence
• Held after completion of discovery and all related motions so parties are aware of merits of
• Always held before different judge from trial judge

•   Conferences are highly evaluative (parties file briefs & judge gives opinion on likely outcome
    of trial including damages) VERY pro-settlement
         o Therefore very detrimental to party on loosing side –loss of bargaining power for
         o H: is this appropriate –we need some novel claims to get to trial to advance common
•   If parties cannot reach settlement, trial date is set

Rule 77.15 Trial Management Conference
• Convened after trial date is set at request of case management judge/master, trial judge or at
   request of parties
• Used to ensure all matters are in order to proceed to trial


24.1.01 This Rule provides for mandatory mediation in case managed actions, in order to reduce
cost and delay in litigation and facilitate the early and fair resolution of disputes
• This is one component of the case management regime
• Private/confidential assisted negotiation with a mediator who attempts to facilitate settlement
• Has three primary similarities with adjudication:
         o Third party facilitator (generally lawyer)
         o Third party is to be neutral and impartial –intended to be issue based
                 However in practice mediators are often evaluative (esp. since 90% are
         o Parties still in control of litigation –responsibility for settlement remains with parties
                 Mediator is not responsible for pushing the parties to make a deal with regard
                       to the mediation
                 However, in Ontario, a mediator is pushed to settle cases (in order to
                       maintain good standing on roster), which may militate against this
• Rule 24 came into effect in 1999 as pilot project in TO and Ottawa
         o Would apply mandatory mediation to all case managed cases (25%)
• After pilot project, independent evaluation found mediation lead to decrease in costs and
    delay by moving settlement from court house steps to much earlier point in process doesn‟t
    increase settlement JUST MAKES IT EARLIER
• Modified in TO by Rule 78 –if you‟re case managed though you still have mandatory
• NOTE: mandatory mediation could potentially have impact on number of novel claims that get
    to trial

Changes under Rule 24.1
• Had two major effects on mediation in Ottawa. TO and Windsor
         o Made attendance mandatory for all case managed cases
         o Set time line –must occur within 90 days of filing of first defence
H: Comments and Critiques on Rule 24.1
• Both are problematic b/c they‟re too early in process:
         o 90 day limit comes BEFORE discovery
         o Large number of cases are personal injury cases where injuries haven‟t manifested
             fully yet t/f P‟s lawyer won‟t advise for settlement
         o New limitation period of 2 years from 6 compounds injury manifestation problem
• On the other hand, after 90 days, neither side will have spent much on a lawyer, and litigation
    is therefore easier to walk away from
         o After discovery, it becomes more difficult
• Ultimately, Justice Winkler decided that there was no increase in efficiency, because the
    parties were simply expending their energy trying to avoid mediation

Timing of Mediation Session:

•  Mediation must occur within 90 days of filing of first defence –this can be statement of
   defence OR notice of intent to defend
• There is some discretion in standard track to extend this deadline, where mediation can be
   postponed by additional 60 days on consent of parties or through motion to case
   management judge/master
       o This discretion reduced efficiency and frustrated rational behind rule in TO
• On fast track can only be postponed or exempted when motion is brought before a judge
Rule 24.1.01 Factors Court Should Consider in Granting Motion for Extension
• Number of parties and complexity
       o If the plaintiff can demonstrate that there are MANY D‟s and therefore P cannot
            possibly be sufficiently organized in time, the court may extend the timeline
• Whether a party intends to move for summary judgment under Rule 20 or 21
       o If a party is intending to claim that there is no cause of action, the court won‟t force
            mediation until afterwards
• Whether the mediation is more likely to succeed if the 90 day period is extended to allow the
   parties to obtain evidence
       o Evidence would be obtained during discovery
• Whether given the nature of the case or the circumstances of the parties, the mediation is
   more likely to succeed if the mediation period is extended or abridged
       o This basket clause is why we have very little mandatory mediation in TO

Selection of the Mediator
• Each city (TO, Ottawa, Windsor) has mandatory mediation roster of qualified mediators
• To qualify in TO must have minimum 40 hours of training, some experience, and some
    limited knowledge of the civil justice system
• Within 30 days of the filing of the first defence, parties must submit to the mediation office the
    name of the mediator that they have decided to work with
• If they don‟t submit a name, they are randomly assigned a mediator from the roster
• In the majority of cases, the parties cannot agree on a mediator, and get assigned one from a
• H: Parties often walk into the mediator‟s office with lawyer to meet statutory requirement then
    leave –how is this access to justice when you‟re forced to pay mediator to do this?

Issues with Mediation --Efficiency But No Justice?
• Many mediators do not know very much about the civil justice system, and therefore conduct
    a very different mediation from what a lawyer would conduct, for instance group hugs
• Because people on the roster are capped regarding what they can charge, people leave the
    roster once they have established the requisite client base to develop private mediation
    practice, leaving only inexperienced mediators on the roster
• No record of mediations at common law –doesn‟t matter how they‟re conducted
• Mediators encouraged to settle –tracked only by number of settlements
Procedure Under Rule 24.1
• Have 90 days to get before mediator
• If the parties cannot agree between themselves on a mediation date, then one is set for them
• 7 days prior to the mediation, parties are required to prepare a statement of the issues and
    provide a copy to every other party and the mediator in form 24.1(c)
        o Documents of central importance must be attached to the statement of issues, for
             instance the plaintiff must provide the mediator with a copy of the pleadings
• The parties and their lawyers are required to attend the mediation unless the court orders
    otherwise in order to meet statutory obligation (this is all)
• In the case of an insured party, for instance when a driver hits a pedestrian, invariably the
    driver is not there because the insurer makes all of the litigation decisions
• Rule 24.1.14: All communications at a mediation session are deemed to be without prejudice
    to settlement discussions
• The job of the mediator is to facilitate discussion between the parties, and is not supposed to
    have anything to do with making an evaluation of the chances of the parties at trial

•   Mediations can be advantageous as they allow for possibility of apology that trial does not

• After a mediator will file mediation report (successful settlement etc)
• Mediator will file certificate of non-compliance if parties fail to comply with rules regarding
        o If a party fails to show up within 30 minutes of a scheduled mediation
        o If a party fails to provide a statement of issues seven days before the mediation
        o If the plaintiff fails to provide the mediator with a copy of the pleadings
Rule 24.1.13: If certificate of non-compliance is filed the case is automatically referred to the case
management judge/master who convenes a case conference where 5 things can happen:
• A timetable is set out for the action
• A document filed by the offending party (for instance pleadings) might be struck
• The action may be dismissed
• The party may be ordered to pay the costs of the other people who showed up and wasted
   their time
• The Court may make any other order that is just

• Excess motions for extension or avoidance of mediation caused practice direction to be
   issued by Justice Winkler
• Came into effect May 6 2005
• Applies to all actions brought in Toronto after December 31 2004 (retroactive)
Rule 78.02:
• Parties have greater responsibility for managing actions and moving them to trial
       o H: Reverts back to adversarial model
• Court will provide case management only when there is a need for court intervention that can
   be demonstrated
       o H: Sets aside three year pilot project for TO
• In practice, this means that case management under Rule 77 will only be available outside
• Rule 24.1 (mandatory mediation) applies only to cases which are subject to Rule 77, and
   hence will not apply automatically to Toronto actions
• Now in order to get into case management you need to show that efficiency will be
   served by your action being case managed! even if parties consent!
       o 78.12 (1) If all the parties consent in writing, a judge or case management master
            may, on a party‟s motion, assign one or more actions to case management in
            accordance with Rule 77

Under Rule 78:
• There is no selection of fast track or regular
• The registrar will no longer dismiss the action if the defence has not been filed within six
   months, rather a notice to the plaintiff will be sent after two years
• Mediation must be scheduled no more than 90 days after the action is set down for trial
Factors that allow for case management in TO:
• P. 213 Supp, #16 in the Practice Direction (possibly Rule 77.09(5) as well): In order for
   the court to intervene, there must a motion by the parties plus:
       o Complex issues
       o Litigation of a matter of public interest
       o Numerous parties or related proceedings (extraordinary discovery issues etc)
       o A chronic and substantial obstruction to the timely disposition of the proceedings –
           lawyers can‟t get along
• Why would you want case management?
       o As P if you have a strong case would want settlement conference for judge to make

        o As a small litigant you would want reduced costs
•   H: Are these rules a good balance between fairness and efficiency
        o One of the possibilities is that fairness includes efficiency
        o Accordingly, the two values are not mutually exclusive but rather complementary

Example –Tibbits v. York Central Hospital (2005 SCJ Master)
The court will say no to case management even if factors have been met!!
• This was a motion seeking case management brought with consent by both parties, who
   agreed that the matter was complex and that they would benefit
• The application was dismissed –simple consent and recitation that case management would
   be beneficial are insufficient
• Advantages of Rule 77 must be weighed against limited resources of court
• Look to whether other case management techniques outside of rule 77 could be effective –
   i.e. Rule 48
• In addition to showing how the 4 factors described in the practice direction are met Master
   McLeod said that use of Rule 77 may be most appropriate if some of the following factors are
        o (a)Attempts at less formal case management have failed or it is likely one or more of
            the parties will resist efforts to manage the action collaboratively;
        o (b) Use of the expanded powers and informal procedures in Rule 77 may be
            necessary or of benefit;
        o (c) Early mandatory mediation on the Rule 24.1 model will be useful;
        o (d) There is a need for administrative supervision of various deadlines by the registrar
            and Rule 48 alone will be inadequate;
        o (e) It appears ongoing active management by a case management master will be
            neces-sary; o
        o (f) It appears a case management master should undertake settlement conferences
            or trial management conferences contemplated by Rule 77.
• Master McLeod found that, looking at all of the factors, there should not be case
• This was a signal to the community that case management is dead in Toronto



Definition and Background
• There are two central themes that underlie discovery:
         o The heart of our adjudicative model is the belief that a judge or jury, given access to
             the relevant facts in a dispute, will come to a decision which reflects fairness and
         o The voluntary settlement of claim brings efficiency to our system through reduced
             time and costs, and as a consequence enhances fairness and access to justice
• H: increased efficiency does not = increased justice
• In pleadings, it is not permitted to plead evidence, rather only the material facts may be
• In discovery, the evidence comes out to back up those facts
• Discovery is now, unlike previously, quite extensive
• The motivation is to encourage settlement by allowing parties to have access to all the
    relevant info
Rules 30-33: Types and Forms of Discovery
• There are 4 types of discovery:

    1. Discovery of Documents
           o RULE 30
    2. Examination for Discovery (oral discovery)
           o RULE 31
    3. Inspection of Property
           o RULE 32
    4. Physical or Mental Examination
           o RULE 33

•   The conduct of discovery is governed by Rules 34-35
    1. Rule 34
           o Procedure on oral examinations
    2. Rule 35
           o Procedure on examination for discovery by written questions

Purposes of Discovery
• To enable the examining party to know the case that it has to meet
       o P‟s lawyer will be acting in handholding role preventing client from revealing
            privileged/non-relevant information, D‟s lawyer will be directing questions of their
• To procure admissions to enable one to dispense with formal proof
       o Discovery is given under oath
       o The admission can be relied on by the opposing sides for use in the trial process so
            that the opponent doesn‟t have to go through normal proofs of admitting evidence
• To procure admissions that may destroy or impair an opponents case
• To facilitate settlement, pretrial procedure and trials
       o By allowing both sides access to all relevant information they will be better able to
            reach settlement
       o Discovery allows both sides to get an idea of how many witnesses will be called etc.
• To eliminate or narrow issues from statement of claim
       o i.e. if you‟re claiming you can‟t do activities you used to enjoy and it‟s discovered that
            you can you can eliminate this from pleading
• To eliminate surprise at trial
       o Allows each side to see the case against them surprises are anti-settlement
       o Doesn‟t allow for justice to take place the way we intended it
       o The notion is that ambush at trial does not lead a judge or jury to achieve an answer
            that is fair and just but skews the results in a way that contradicts fairness and justice
       o H: End discovery by asking if all aspects of claim have been covered

Lawyer’s Duty Regarding Discovery --EXAM
• Lawyers have unique discovery obligations separate from their client’s obligations
• If violated this will lead to sanctions against the lawyer
• The lawyer‟s duties are governed by Rule 4.01 of the Rules of Professional Conduct
       o A lawyer must explain to her client:
                 The necessity of full disclosure
                 The duty to answer any question relating to any issue in the action or made
                    discoverable in the rules
       o A lawyer must assist her client in fulfilling obligations to make full disclosure
       o The lawyer shall not make frivolous requests for the production of information
• Note language assist and explain -doesn‟t give any direction in even client refuses
• Lawyer must sign affidavit after production

RULE 30: Discovery of Documents

•   Rule 30 imposes two distinct disclosure obligations:

      o Each party must swear and serve an affidavit of documents that includes every
         document related to the matters in issue that is or has been in the possession control
         or power of a party
      o A party is required to disclose the existence of all documents that are relevant to the
      o H:
              It may be difficult to decide what is relevant
              The lawyer‟s job is often in helping the client to understand which documents
                 are relevant to the case at bar

       o Each party must produce for inspection every relevant document relating to any
           matter in issue in an action that is in the possession, control or power of a party…if
           requested , unless privilege is claimed in respect to that document
       o A party is required to produce for inspection by all adverse parties all relevant
           documents over which the party does not claim privilege
• NOTE: at common law an additional privilege obligation has developed:
       o if requested a party must produce an insurance policy which might cover D
       o H: This is an issue because insurance/your ability to pay isn‟t relevant to issues of
           liability etc. argument is that this helps achieve access to justice b/c P wouldn‟t
           launch claims
• NOTE: 30.01(1)(b) provides that a document shall be deemed to be in a party‟s power if
   that party is entitled to obtain the original document or a copy of it and the party
   seeking it is not so entitled.
       o This is where strategy will play a role in who you decide to discover -i.e. CEO

Example -Kiewitt v. BC Hydro (1982 BCSC)
Facts: Kiewit was supposed to build a transmission line for BC Hydro, and was unable to
complete the project. BC Hydro consequently brought an action against them. K argued that BC
favoured other contractors, and therefore the steel was not delivered in a timely fashion, putting K
in an untenable position. During discovery, K demanded documents, and BC delivered 30,000.
Kiewit then made further requests for broader discovery of documents dealing with other jobs
underway during the time of the project with BC Hydro, which BC refused.

Issue: To what extent can the plaintiff demand discovery of documents relating to projects other
than its own?

Decision: Either the parties must agree on some discovery, or the plaintiffs could have the
documents but their costs would not be recoverable, or could have trial to see if steel was

• P relied on the Peruvian Guano case (1882) which defined scope of production very broadly
   “a document relating to any matter n question in the action” -required production of any
   documents relevant to issues (documents in question here would be relevant to P‟s argument
   of diversion of steel to other projects)
• The Court did not want to expand discovery too far, particularly given today‟s technology
   which risks making the scope of discovery limitless and incredibly expensive for a defendant
• “The time has arrived, in my view, for the court to become concerned about the cost of
   litigation, subject, of course, to the right of any party to the court‟s assistance in the
   reasonable preparation of his claim or defence.”

Notes (per Hanycz):
• This is one of the first instances where we see the court explicitly recognizing that cost is a
   factor in dictating and determining access (if the cost is too great court should hesitate -

    before they would rule documents to be irrelevant)
•   Should the cost of discovery be factored into looking at the boundaries of discovery?
•   To a certain extent fairness requires efficiency
•   It may be the case that the other side will try to spend you out of litigation, and therefore in
    that case expenses are related to fairness
•   Other cost parallels: BC Okanogan & elimination of jury trials in BC to avoid cost

•   Wolf report addressed the issue of whether courts should guide scope of discovery
       o UK went route of greater judicial guidance is scope, our task force on discovery
            maintained that breadth and scope of discovery should remain with parties

Rule 30.01: Definitions of Documents and Power
Rule 30.01(a)
• Holds that a document includes:
         o A sound recording, Videotape, Film, Photo, Chart, Graph, Plan, Book of Account,
             Data, Info in electronic form,
• The purpose of the rule is to ensure that all relevant documents are disclosed and produced
Rule 30.01(b)
• A document shall be deemed to be in a party‟s power if that party is entitled to obtain the
    original document or a copy of it and the party seeking it is not so entitled

Rule 30.03: Affidavit of Documents
• Within ten days of the close of pleadings, each party must serve on all other parties a sworn
    affidavit of documents disclosing to the full extent of their knowledge, information and belief
    all documents relating to any matter in issue in the action that are or have been in the party‟s
    possession, control or power
• Rule 30.03(1)
• The affidavit of documents must be sworn and served on other parties within ten days of
    close of pleadings
• Rule 30.03(4)
• The client‟s lawyer must certify on the affidavit that she has explained to the deponent
         o The necessity of making a full disclosure of all documents relating to any matter at
              issue in the action, and
         o What kinds of documents are likely to be relevant to the allegations made in the
H: This certification doesn‟t relate all to the completeness of the affidavit

Form and Content of the Affidavit of Documents
• Form 30A provides the form of the affidavit of documents for individuals
• Form 30B provides the form of the affidavit of documents for a corporation or partnership
Rule 30.02(2) Content of affidavit of documents is broken down into three components:
• Schedule A
       o Lists all documents relating to any matter in issue in the action that are or were in the
           party‟s possession or control over which the party is not claiming privilege
• Schedule B
       o Lists all documents relating to any matter in issue in the action that are or were in the
           party‟s possession and over which the party clams privilege, and the grounds for the
• Schedule C
       o Lists all documents relating to any matter in issue in the action that were in party‟s
           possession but are no longer, and a statement of how/when the party lost possession
Rule 30.02(2) Schedule B documents must include grounds for claim of privilege

Example -Grossman v. Toronto General Hospital
• Sufficient detail must be included to allow the court to make a prima facie decision as to
   whether the claim for privilege has been established from what appears on the fact of the

E.g. memo in contemplation of litigation from A to B dated X

Inspection of Documents
Rule 30.04: The party delivering the affidavit of documents must produce the documents in
schedule A for inspection by the other parties
• The original must be available during discovery
• If the other side wants copies, they must pay for them
• This is where one side might spend another to death
• Producing for inspection does NOT constitute a concession that the document is
    admissible/relevant -would rely on rules of evidence other than privilege to deny

Incomplete Affidavit of Privilege Improperly Claimed
Rule 30.06: Governs the procedure if privilege is improperly claimed, or if the affidavit is
• Under the rule the court has four remedies:
       o Order cross-examination on the affidavit of documents
                   This does not mean a cross-examination on the contents, but rather a cross
                      examination on how the documents were come up with, for instance
                            Did your lawyer help?
                            What were the parameters?
                            Who did you talk to?
       o Order the service of a “further and better” affidavit of documents
                   This should be avoided where possible
       o Order the disclosure of or the production for inspection of the missing documentation
           if it is not privileged
                   There might be an argument regarding the relevance of a group of
                      documents independent of the privilege issue
       o Inspect the document for the purposes of determining its relevance or the validity of
           the claim of privilege
• This is why mandatory mediation occurs before discovery -very expensive, motions etc.

Documents and Errors Subsequently Discovered: Continuing Discovery
Rule 30.07: Imposes a duty on any party that has already served its affidavit of documents to
make continuing discovery of documents that either subsequently come into the
possession/control of the party AND to correct any inaccuracy in original document
• If it appears that one of the parties is not respecting the continuing discovery, the court can
   order a supplemental affidavit of documents
• By rules affidavit must be filed within 10 days of close of pleadings
        o H: in reality this deadline is ignored except for unrepresented P‟s

Sanctions for Failure to Disclose or Produce
Rule 30.08(1) Provides sanctions for a parties failure to disclose or produce for inspection in
compliance with the rules
• If the document you failed to produce is favorable to you, you will not be able to use it without
   leave of the trial judge
        o Trying to prevent surprise because it‟s anti-settlement and against adversarial model
            of justice
• If the document you failed to produce is unfavorable the court may make any such order as is
        o This has resulted in fines being levied, pleadings being struck, etc
Rule 30.08(2) Provides sanctions for a party‟s failure to serve an affidavit of documents
• Can result in pleadings being struck, prevention of examination for discovery etc.

Use of Privileged Documents at Trial

Rule 30.09: Deals with the situation where a party has claimed privilege over a document but
wants to use it at trial
• General Rule: A party claiming privilege may NOT use the document at trial UNLESS it
    gives notice within 10 days of the action being set down for trial
• Exception: A document over which privilege continues to be claimed CAN be used at trial to
    impeach the credibility of a witness
        o Sometimes where a plaintiff who has claimed an injury, the insurer will get a video of
             the plaintiff engaged in strenuous activity, and will the assert privilege until the
             plaintiff has testified
• You would go this route with all your helpful Schedule B documents because don‟t want other
    side to have them for years until trial

Production from Non-Parties
Rule 30.10: Allows a party to bring a motion for production of a document from a non-party
• TEST: is that the document must be relevant to a material issue in the action and the court
   must be satisfied that it would be unfair to require the moving party to proceed without the
        o Courts are very hesitant to apply this discretion and will only allow the motion if
            they‟re convinced attempts to obtain the documents from parties have failed

Example -Ontarion (AG) v. Stavro (1995 OCA) --EXAM
Facts: The plaintiff alleged that the executors of the estate of Harold Ballard had acted in breach
of their fiduciary duties. The plaintiffs brought two motions pursuant to Rule 30.10(1) of the
Ontario Rules of Civil Procedure for production of documents in the possession, control or power
of four non-party financial institutions b/c D said he didn‟t have them. Two of the institutions
opposed production. The motions judge found that the documents were relevant to material
issues in the litigation, but that the plaintiffs had not established that the documents were vital or
crucial, and the motions were dismissed. P appealed.

Issue: The appropriate standard for ordering production for third parties to litigation.

Decision: “Vital or crucial” is a higher standard than is contemplated by the Rule; sent back to
the motions judge for further consideration based on the CA principles outlined below
• It is possible for it to be unfair to proceed to trial without the documents EVEN through the
    documents are not crucial to the case
• In deciding whether to order production from a third party, the court must consider the degree
    of relevance and importance of the information sought relative to the issue between the
• There are six principles that the court must consider:
         o The importance of the documents in the litigation
         o Whether production at the discovery stage rather than at trial is necessary to avoid
             unfairness to the appellant
         o Whether the discovery of the defendants with respect to the issues to which the
             documents are relevant and if not, whether responsibility for that inadequacy rests
             with the defendants
         o The position of the non-parties with respect to production
         o The availability of the documents or their informal equivalent from some other source
             which is accessible to the moving parties
         o The relationship of the non-parties from whom production is sought to the litigation
             and the parties to the litigation; non-parties who have an interest are more
             susceptible to production that true “strangers”


Introduction and Types of Privilege
• Privilege: is a narrow rule of evidence that protect certain information from disclosure
        o This is a narrow exception to the very broad rule of discovery disclosure which holds
             any relevant document is discoverable
        o Onus is on the party claiming the privilege
        o Privilege doctrines arise out of the common law
• Privilege is different from confidentiality
        o This, by contrast, is a general duty owed by lawyers to guard the privacy of clients
• There are three types of privilege:
        o Solicitor-Client Privilege
        o Litigation Privilege
        o Settlement Privilege

1. Solicitor-Client Privilege
• Applies to communications whether oral or written passing between a solicitor and their client
    or prospective client for the purpose of giving or receiving legal advice
• Privilege belongs to the client therefore only the client can waive it
         o If in giving testimony client makes reference to a communication privilege is waived
         o Absent this neither party can be compelled to disclose the fact that the
              communication took place or its content
• Privilege does cover clients admissions of past wrongdoings but not future ones
• Privilege extends to cover all agents of the solicitor connected to the file (i.e. paralegals etc.)
• Privilege does not extend to acts done by the solicitor for the client, or to information that the
    solicitor learns by means other than a confidential communication from the client, e.g. if you
    are at a party and learn something about the client, that is not privileged

Example -Pritchard v. OHRC (2004 SCC)
Facts: The plaintiff filed a human rights complaint with the Commission against Sears for gender
discrimination, sexual harassment and reprisal. The Commission decided not to hear her
complaint. The appellant sought judicial review and brought a motion for production of all
documents that were before the commission when it made its decision, including a legal opinion
provided to the commission by in-house counsel. The Commission claimed that the decision was

Issue: Whether solicitor client privilege includes advice given by in-house counsel.

Decision: Decision for the Commission; the opinion is privileged.
• The purpose of SCP is to protect giving and receiving of legal advice therefore privilege
   includes the work done by in-house counsel provided that the opinion given flows from the
   lawyer’s capacity to give legal advice as opposed to executive/administrative advice
• In-house counsel often operates with two hats on, and this therefore must be evaluated on a
   case by case basis
• H: Court relied on other SCC decisions which had held S-C privilege should be jealously
   guarded and only set aside in the most unusual circumstances such as a genuine risk of
   wrongful conviction
• The opinion was given pursuant to the capacity of the counsel to give legal advice

Example -Upjohn v. United States (1980 US)
Facts: U.S. companies were bribing foreign officials and claiming those bribes as tax deductions.
One such company began an internal investigation, and as part of it, the company‟s attorney sent
a questionnaire to foreign managers. The IRS then demanded the questionnaires, and the

company claimed that they were the subject of litigation privilege and attorney client privilege.

Issue: The scope of solicitor client privilege.

Decision: Decision for the company; privilege applies.
• The underlying purpose of the law of privilege is to enable clients to be candid with their
• Without such privilege, there would be no justice
• The lower court applied the “control group test” for limiting the extent of privilege, saying that
   only those officers and agents of a corporation playing a substantial role in directing the
   corporation‟s actions are covered, i.e. the mailroom clerk is not
• H: The lower court was concerned about the “zone of silence” approach, which would create
   a huge area of privilege where no one would get at the information
• The Supreme Court rejected this approach
• The found that in order for a lawyer to do his job, he must be fully informed from a variety of
   sources, including the mailroom guy, and that information must also be protected
• The court said that if we use the “control group test”, we would be left in a situation
   preventing lower level employees from assisting a lawyer

Example -Ontario (Ministry of Environment) v. McCarthy Tetrault (1992 Ont. Prov. Div.)
Facts: Doug Thompson from McCarthy‟s attended a meeting with LaFarge to address the
company‟s environmental concerns. Thompson was the only one who took notes during the
meeting. The Ministry of the Environment received a search and seizure order and seized the
notes. Thompson and LaFarge asserted solicitor-client privilege over the notes, claiming that the
notes were taken for the sole purpose of rendering legal advice. The Ministry claimed that the
only reason that Thompson was at the meeting was to cause it to be privileged.

Issue: Whether the activities of Thompson and LaFarge were conducted for the bona fide
purpose of obtaining legal advice from Thompson, and are therefore covered by privilege.

Decision: Decision for Thompson; the notes are privileged.
• In order for the notes to be covered, the solicitor must swear to a belief that a substantial and
   bona fide purpose of the communication was to obtain legal advice
• Moreover, the court is entitled to assess the credibility of that evidence as with any other
• In this case, immediately following the meeting Thompson drafted an opinion that was
   circulated only to those who had attended the meeting and placed in the file
• Thompson‟s evidence regarding the purpose of his presence at the meeting was credible

Notes (per Hanycz):
• This decision could have easily gone the other way and properly should have
• It is a growing practice that lawyers are brought to attend particularly contentious board
   meetings or price-fixing conferences so that there can be no knowledge of what went on
• In Upjohn, what the privilege stood for was to enable the client to receive candid legal advice
   about what was going on
• This case was different
• Lawyers are supposed to be self-regulating, and to have a code of conduct that is higher than
   the rules of professional conduct

2. Litigation Privilege
• Covers documents prepared surrounding the reasonable contemplation of litigation
         o This does not extend beyond documents
• According to Justice Sharpe:
         o Litigation privilege is aimed at protecting the adversarial process
         o In order to have a process where lawyers will diligently prepare their cases and bring
             best/all relevant info to trial we must ensure such efforts can‟t be used against them
         o Accordingly, they must investigate, look for evidence, hire experts, etc.
         o If there was no litigation privilege, parties would be unable to seek out adverse
             information, which would create a chill about trial preparation
         o Rejects the sporting theory of litigation: protect work products to ambush the other
         o Adopts work product test rationalization: in adversarial model can‟t prepare
             thoroughly without a zone of privacy this view is taken up in Hickman as well
         o The courts must balance the objective of protecting the adversarial roles of the
             parties with the necessity of allowing for adequate disclosure and the requirement of
             adducing sufficient evidence to enable a fair decision

Example -Hickman v. Taylor (1947 US) -still the authority for litigation privilege
Facts: The J.M. Taylor sank while helping tow a boat across the Delaware River. A public
hearing was held and the four survivors were examined. Subsequently, counsel for the boat
owner interviewed the survivors privately with an eye to toward anticipated litigation. An action
was later brought against the boat owners, and as part of the action, a request was made to
examine the materials from the interview, which the boat owners refused on the grounds that it
was privileged.

Issue: Whether oral and written statements of witnesses, or other information secured by a
party‟s counsel in the course of preparation for possible litigation is privileged.
Decision: Decision for the boat owners; the records are privileged.

Rule: The work product of a lawyer generated while preparing for litigation is privileged, and need
not be disclosed to other parties to the litigation.
Application: The interview of the witnesses should be considered the work product of counsel,
and as such is subject to privilege.

Obiter: If there were not such a privilege, lawyers would not be able to properly prepare.
Notes (per Hanycz):
• According to this decision, there is a two part test for the establishment of litigation privilege
        o The party must be able to establish that the document was created after litigation
        o The party must also establish that the document was created with the dominant
             purpose of submission to a lawyer for use in litigation
• Until recently, there was a great deal of confusion regarding the dominant purpose test
• In England, the test is “substantial purpose” rather than dominant purpose; is this the same
• Much of the confusion was sorted out in General Accident v. Chrusz, WHICH IS VERY
• H: Two strategies for dealing with litigation privilege put in schedule B or bury in schedule A
   with LOADS of other documents (themes of access to justice, time $$)

Example -General Accident Insurance Co. v. Chrusz et al (Ont CA 1999) EXAM
Facts: Chrusz owned a hotel which was destroyed by fire. The insurance claims adjuster
suspected arson. Moreover, a hotel employee who had been fired claimed that the hotel
fraudulently inflated the claim, bringing a video to insurance company and granting them an
interview, which was later transcribed. The hotel requested that the documents be produced, and
the insurer claimed privilege.

Issue: The extent of litigation privilege.

Decision: Decision for the hotel.

• Unlike solicitor-client privilege, there is nothing sacred about litigation privilege, as it is not
   rooted in the necessity of confidentiality in a relationship
• LP is a practicable means of assuring a zone of privacy for counsel‟s work product
• The trend is towards more complete discovery, and this trend should continue as long as
   counsel is left with sufficient flexibility to adequately serve the litigation client
• In the U.K., the test for litigation privilege is that the work must be for the “substantial
   purpose” of litigation”, whereas in Canada the test is “dominant purpose”
       o Substantial purpose connotes a lower threshold -could be prepared for other
            purposes as well
• The dominant purpose test is far narrower, in keeping with the trend towards expansive
       o Court felt privilege was getting too broad, needed to return to broad policy of
• The purpose of the work product privilege is to promote the adversarial system by
   safeguarding the fruits of an attorney‟s trial preparation from the discovery attempts by his
• Only these fruits will therefore be protected
• Deference must be given to modern perceptions of discovery i.e. promotion of settlement

• An insurance company investigating a policy holder‟s fire is not considered to be in a state of
   anticipation of litigation
• It may be that negotiation or litigation will follow as to the extent of the loss, but until
   something arises to give reality to the litigation, the company should be seen as conducting
   itself in good faith in the service of the insured
• Hence, there is no privilege between the claims adjuster and the insurer, however there is
   privilege once the hotel began to be suspected of arson
• That arson privilege ended once the insurer concluded that the hotel did not cause arson,
   and those documents must then be produced
• As to the documents of the disgruntled employee, while those documents caused the insurer
   to contemplate litigation, the employee did not prepare them for litigation, and therefore they
   were not privileged

Notes (per Hanycz):
• If a lawyer hires an investigator and the investigator files a report, that does not have to be
   produced, as it is clear that the investigator was hired for the sole purpose of litigation
• However, under schedule B, must indicate that there is a report and grounds for privilege

3. Settlement Privilege
• Protects from disclosure any communications that are made for specific objective of resolving
• Policy: parties should be supported in their attempts to resolve their disputes
• While there are express provisions in Rule 49 protecting those offers from disclosure, the
    common law doctrine of settlement privilege is far broader than Rule 49
• There are three conditions which all must be satisfied for recognizing this privilege
         o Litigious dispute must be in existence or within contemplation
         o Communication must be made with the express or implied intention that it would not
            be disclosed to the court in the event that negotiations failed
         o The purpose of the communication must be to attempt to effect a settlement of the

•   Lawyers will often write “without prejudice” at top of form in belief that it protects the
    communication under settlement privilege
         o It does NOT -if letter meets three criteria it is protected, if it doesn‟t it isn‟t
•   All communications made in mediation sessions with intent to settle are thus protected
•   Thus, only once a ruling has been made can the court can hear any live settlement offers (49
    or otherwise) but won‟t know of anything beforehand
•   BC Herritage Case illustrates breadth of settlement privilege

Deemed Undertaking
• There is a question of whether there is an implied undertaking not to use information obtained
   in discovery that would remain private for other purposes
• For instance, can a party for whom documents are produced make them public, or use them
   in another proceeding?
• Rule comes from Goodman v. Rossi rules were amended after this case and Rule 30.1
Rule 30.1(3)
• The deemed undertaking principle stipulates that evidence or information obtained from
   discovery is subject to a deemed undertaking not to use the evidence for any purpose other
   than those of the proceeding in which it was obtained
Rule 30.1(4-7)
• Grants exceptions to the deemed undertaking rule
        o If the other party consents to the use
        o Once the evidence if filed with the court, because court is “open”, the undertaking
            ceases to apply
        o Evidence from one proceeding may be used to impeach the testimony of a witness in
            another proceeding
        o In limited circumstances, if there is a subsequent action between the parties, the
            previous examination may be used
Rule 30.1(8) Judicial Discretion Exception
• The court is given discretionary power to relieve against the undertaking where it is satisfied
   that the interests of justice outweigh any prejudice resulting from a party disclosing the
• The court may impose such terms as are just

Example -Goodman v. Rossi (1995, CA)
Facts: The plaintiff was employed as a real estate agent by NRS Royal Realty. The defendant
was the president. The plaintiff was terminated, and sued for wrongful dismissal. Among the
documents that the defendant produced was a document that the plaintiff claimed was
defamatory. The plaintiff accordingly commenced an action for defamation based on this
document. The defendant claimed that the document could only be used in connection with the
wrongful dismissal action, as that is what it was produced for.

Issue: Should the court recognize an implied undertaking rule with relating to the use of
documents obtained on discovery.

Decision (Morden): There is an implied undertaking.

• The parties undertake not to use information from discovery for any other purpose
• The discovery represents an intrusion into people‟s general right of privacy, and the intrusion
   should therefore not be allowed for any purpose other than that of securing justice in the
   proceeding in which the discovery takes place
• The plaintiff would not have the alleged defamatory document or be aware of its existence
   except for its production in the earlier unjust dismissal action
• It has not been published in any way, and the filing of the document with the ministry could

    not have resulted in harm to her reputation
•   The action carries with it the injustice of being penalized for having made full discovery, and
    also the risk of prejudice in the form of exerting extraneous pressure with respect to the
    settlement for the unjust dismissal action
•   Therefore, the plaintiff‟s action is dismissed

• Parliament should legislation rules
• Note: They did (Rule 30.1)

Notes (per Hanycz):
• It may not be realistic for parties to have deemed undertakings
• For instance, suppose a lawyer represents an employee against Ford, and they produce an
   important document as part of their discovery
• If the same lawyer presents a new client against Ford, what happens if they don‟t produce
   that same document?
• It may be that the interests of justice would outweigh the resulting prejudice (31.1(8))


Examination for Discovery

• Recall two themes for discovery:
         o The heart of our adjuticative model is the assumption that if judge/jury is given all
              relevant facts in a dispute they will come to a decision that reflects fairness and truth
         o Voluntary settlement will bring efficiency to our system (through reduced time and
              costs) thereby enhancing access to justice
• In addition to examination for discovery, there are three other forms of discovery
         o Documentary discovery
         o Inspection of property
         o Medical inspection
• Definition: Examination for discovery is the compulsory pre-trial disclosure by a party to an
     action, under oath, of all the party‟s knowledge information and belief surrounding all the facts
     and evidence that are relevant to the issues in the action
         o Discovery is sworn under oath because all evidence put before the court must be
• The purpose of examination for discovery is to allow each party to learn all the opposite
     party‟s information concerning the lawsuit including:
         o The party‟s recollection and information of all relevant events
         o The names of potential witnesses the party will rely on (witnesses about facts AND
              legal conclusions)
         o The party‟s position on legal and other issues in the lawsuit

The Mechanics of Examination for Discovery
Rule 31.03(1) Allows for discovery in any action but NOT in applications
• The party‟s present at an X4D will be:
       o Witness/party being examined
       o His/her lawyer -hand holding for questions
                The role of the lawyer here is to ensure that the questioning is fair and proper
                When an improper question is asked, the witness‟ lawyer may intervene to
                   object, otherwise counsel for the witness should say nothing throughout the

        o     The other parties (optional) in the lawsuit
        o     Lawyers for the other parties in the lawsuit
        o     Court recorder
                  There are business called “offices of the official examiner” which provide a
                      forum for the examination, as well as a court reporter to tape and transcribe
                      the proceeding
•   The examining lawyer is entitled to ask the witness any questions about the facts or
    circumstances involved in the lawsuit, and the witness is required to answer all relevant
    questions and witness is required to answer even if info is damaging to them
         o Record of discovery can be used in court by the OPPOSITE party to impeach witness
         o H: don‟t fight in discovery over relevance (there‟s no decision maker there) & pay by
•   If the witness does not know the answer to a relevant question, but with reasonable effort
    can obtain it, the lawyer for the witness must undertake to make best efforts to find the
    answer to that question
•   The undertaking made by the lawyer is similar to a promise, but with special gravity; a lawyer
    can be sued on an undertaking, or attract professional discipline

Who May be Examined?

• You have a right to discover any party who has an adverse interest to yours
• The right to discover is not limited to P vs. D
       o There may be cross claims among D‟s -in this case they have right to discovery
       o There may be fact specific scenarios where two D‟s have adverse interests -Menzies
            v. McLeod (McGuire nurse given 10,000 by deceased in will, sued along with other
            beneficiaries by next of kin, asserted that she couldn‟t be discovered by next of kin
            b/c she was co-D, court found her interest was adverse to theirs b/c she would want
            will upheld)
• If a third party claim is made, the third party has a right to defend against the statement of
       o If a third party elects to do so, that triggers a right to examine the plaintiff, and an
            obligation to be examined by the plaintiff for discovery

Rule 31.03(2) CORPORATIONS
• Corporations are examined by questioning either an officer, director or employee at the
   discretion of the examining party
• Court generally won‟t interfere with your choice but a corporation being discovered may make
   a motion to the court before the examination seeking an order that the examining party
   examine another officer, director or employee
• The difficulty is that the discovering party will often only get one kick at the can, therefore the
   choice of whom to discover must be made carefully
• Strategy: discovering party might wish to select CEO on the hope that he might become
   irritated and settle BUT CEO might not know anything about the issue
• If prior to discovery the CEO agrees to be discovered but warns the other side that he does
   not know anything, if it turns out that he is telling the truth the other side cannot then ask for
   another witness to discover
• When one party is a corporation each adverse party gets to make their own selection of
   whom to discovery (will generally agree on 1)
• A corporation is bound by any admissions made by the party being examined
• If you are able to sue both the corporation and the CEO you may discover both BUT to sue
   CEO separately you must show they did something so egregious/independently actionable as
   to take them outside their role within the corporation (i.e. Richardson served drinks)
Rule 31.03(2)(b) (Examination of a second officer, director or employee)
• If the witness is unsatisfactory, the other side may request another witness

•   The court will not grant leave unless examination of the first officer failed to give the party
    access to the information they‟re entitled to
•   However, if there was a prior warning that the witness would not be helpful, the request will
    very likely be refused
•   To allow discovery of a second officer in this case would:
             o allow the party to use the rules for strategic purposes -settlement leverage
             o would frustrate the efficiency objectives

Example -Clarks v. Muse
Facts: The plaintiff corporation brought a motion to substitute the discovery witness requested by
the defendant with another officer of the corporation. In support of the motion, the plaintiff filed
affidavits saying that the witness the defence chose to examine did not have any knowledge. The
witness in question signed the original agreement of purchase and sale, however the person
whom the plaintiff wishes to substitute carried out the remainder of the work
Issue: Whether a party may request that one witness be substituted for another on the grounds
that the witness is not informed regarding the facts of the case.

Decision: Decision for the defendant; there will be no substitution.
• Normally where the court has permitted the substitution of a different officer there was some
    form of conflict of interest between the officer selected and the corporation
• There are also cases in which the ground for substitution has been that the person selected
    is not a responsible officer and does not have knowledge of the matter
• While it is true that the witness in this case does not have knowledge, he does have a
    connection with the transaction and can get the relevant information
• The witness is therefore bound to inform himself and obtain answers to the questions
Ratio: The witness selected must inform himself where it would be reasonable to do so, not
wanting to is no excuse

Rule 31.03(3) PARTNERS
• Each person who is a partner at the time of the action or who was a partner at the time of the
   incident at issue may be examined on behalf of the partnership
• Each partner has the right to examine the plaintiff
• This is because of partners are jointly and severally liable

Rule 31.03(5) Persons Under Disability
• E.g. minors, mentally incapacitated, etc.
• The party may be examined only if the party under disability is competent to give evidence
• If the party is not competent to give evidence, or if the examining party chooses, the litigation
   guardian may examine in his place and would have to inform themselves of the issues
• If the litigation guardian is a parent, they have the right to give evidence
• If the litigation guardian is appointed (office of family lawyer, public trustee) there must be
   leave from the court (recall: appointed where there‟s a conflict of interest etc.)
The Crown
• In ON criteria is outlined in Proceedings Against the Crown Act --NOT rules

Examining Non-Parties with Leave

Rule 31.10.01
• This Rules sets out the test for the court to grant leave to examine a non-party
• This will only be permitted:
       o Where the moving party has been unable to obtain the information from any other
           person he or she is entitled to examine for discovery, or from the person he or she

           seeks to examine (this requires a refusal, actual or constructive, to obtain the
           information from the non-party); and
                  i.e. D doesn‟t know in discovery & lawyer refuses undertaking & non-party
                  As a result these motions generally don‟t happen until after discovery
       o It would be unfair to require the moving party to proceed to trial without having the
           opportunity to examine the person; and
       o The examination would not
                  Unduly delay the commencement of the trial
                  Entail unreasonable expense for the other parties
                  Result in unfairness to the person the moving party seeks to examine
•   The court is therefore reluctant to allow examination of third parties -by establishing this you
    MAY be granted leave courts moving toward efficiency at any cost in ON
•   Burden is on the moving/examining party

Example -Carlton
Facts: The defendant brought a motion for leave to examine a non-party. The plaintiff brought a
claim for damages respecting the construction of a building. The third party was an employee of
the firm hired as the consulting engineer with respect to certain aspects of the original
construction and was retained to supervise certain repair work after the problems originally arose.
The third party is no longer working for the consulting firm. The moving party did not satisfy the
court that the moving party has been unable to obtain the information from other persons whom
the moving party is entitled to examine for discovery.

Issue: Whether the moving party is in fact required to satisfy the court that the information cannot
be obtained from the person whom the moving party is entitled to examine.

Decision: Decision for the third party; he will not be examined.
• If the examining party wishes to examine a third party, it must first establish that the
   information cannot be obtained from any other party which it is entitled to examine
• In addition, the inconvenience and cost of getting information from regular parties is not a
   factor in whether the court will compel a third party to be examined.
• In this case, the moving party did not demonstrate that it could not obtain the information from
   elsewhere; it will therefore not be permitted to examine the third party

Scope of Examination

Rule 31.06(1) A person examined for discovery shall answer, to the best of his or her knowledge,
information and belief, any proper question relating to any matter in issue in the action or to any
matter made discoverable by subrules (2) to (4)
• Knowledge is obtained from the witness‟ personal observations or participation
• Information is acquired when a witness has not observed or participated in the event
     personally, but rather has been informed of the event or occurrence by someone else
• Belief arises when the witness infers a fact from either personal knowledge or the information
     from others
Rule 31.06(2) Names and Addresses of Witnesses
A party may on an examination for discovery obtain disclosure of the names and addresses of
persons who might reasonably be expected to have knowledge of transactions or occurrences in
issue in the action, unless the court orders otherwise
Rule 31.06(4) Insurance Information
• A party may on an examination for discovery obtain disclosure of,

        o   the existence and contents of any insurance policy under which an insurer may be
            liable to satisfy all or part of a judgment in the action or to indemnify or reimburse a
            party for money paid in satisfaction of all or part of the judgment; and
        o   the amount of money available under the policy, and any conditions affecting its

The Breadth of Examination

•  A question is proper if it is relevant
•  The threshold for a proper question is that the question must be connected to a pleading
•  Courts are attracted to a very broad interpretation of relevance
•  As such, when one side wishes to go to court to avoid answering a question, the court will
   order the answer unless the party being asked the question can establish that the question
   “has no semblance of relevance”
• Relevance is anything that‟s material in enabling a party to maintain its own case or destroy
Rule 31.06(1) Rejected Grounds for Objecting to a Question:
• No question may be rejected to on the grounds that:
        o The information sought is evidence
        o The question constitutes cross-examination, unless the question is directed solely at
             the credibility of the witness (i.e. have you always been a liar)
        o The question constitutes cross-examination on the affidavit of documents of the party
             being examined
• H: The reason that the rules list these factors as ones which are not legitimate grounds for
   objection is that the rules reverse decades of common law saying that these are legitimate
• Thus, in formulating questions for discovery, take party through each paragraph in statement
   of claim/defence to bring out all evidence they‟ll rely upon at trial, then take them through
   affidavit of documents and inquire as to how it was produced, then ask if there‟s anything not
   touched upon.

Example -Forliti v. Woolley
Facts: case involved injuries sustained to baby during birth, both sides brought motions regarding
whether they should be forced to answer questions
Key Takeaway: A broad interpretation of relevance should be adopted in Canada
• H: Courts are likely to take a liberal approach regarding what is examinable, as rigid
   limitations can destroy the right to proper examination
• Court adopts Cominco “Rigid limitations ridgely applied can destroy the right to a proper
   examination for discovery”
• Witness need not answer questions of opinion -exception = medical/professional opinions in
   that case person may give opinions in area they have expertise
• Hypothetical questions may be properly put to witness if they have expertise
• Counsel may object to questions that are too vague, confusing, overly broad or misleading, or
   questions of law

Impact of Obligation: Knowledge, Information, Belief
• If the person being examined obtained information from person who may qualify as potential
   witnesses at trial, such info must be disclosed (whether it helps or hurts the case of the
   person being examined
        o Therefore, a party can properly be asked for list of witnesses that their side intends to
           rely on
• A person being examined must make positive attempts to inform herself (from everyone that
   she has access) as to relevant facts prior to the examination;
        o Therefore a corporate representative will be required to speak to all others in the
           employ of the corporation with relevant information

        o    The witness must also give her belief based on her personal knowledge, or on what
             she has inferred
•   If a witness is unable to answer a question, she must make reasonable efforts to obtain the
    required information
•   H: The overall impact is that there is a very broad discovery regarding all of the information,
    so that either the judge will be properly informed in his decision, or even better, the
    information will lead to settlement


Scope of Privilege
• General Rule: the same rules with respect to privilege apply to examinations for discovery
     and discovery of documents with some exceptions:
• There are two approaches to avoiding disclosure of sensitive information:
(a) Class Privileges: The categories of privilege established in common law litigation privilege,
solicitor-client privilege, settlement privilege, police informer privilege, Crown privilege.
     • If you can include your information in one of these categories it will unlikely be disclosed
(b) Confidentiality Claims: statements made in confidence to doctors, journalists, priests,
spouses or between those involved in business together person who receives info is often
governed by professional obligations not to disclose
     • These statements do not attract privilege but are often assessed on a „case by case‟
          basis by courts.
     • Courts have shown a willingness to exclude these communications from disclosure in a
          sort of quasi-privilege, without expanding the categories of privilege
• Exception:
RULE 31.06: The scope of litigation privilege is reduced in oral discovery as compared to
documentary discovery
• A party cannot be compelled to produce a document over which litigation privilege is being
• HOWEVER, that protection from physical production does NOT extend to protect the content
     (ie. relevant facts/information) contained in the document.
• In practice, a party being examined will be required to disclose all facts and information
     relevant to the matters in issue EVEN IF the facts and information have been recorded in a
     document protected from production by litigation privilege AND the party learned of those
     facts and information only through the litigation privileged document !!!

Disclosure of Potential Witnesses

Rule 31.06(2) provides that a party may be required to disclose the names/addresses of all
persons who may have relevant information and who could, therefore, be called as a witness by
one party or another.
• When this obligation is combined with the obligation to disclose all information regarding
    relevant subject matters, requires a witness to disclose names and addresses of potential
    witnesses PLUS details of the evidence such witnesses might present, whether favourable or
• CA in Chrusz asserted that this was okay because it still allows parties to prepare for litigation
    while at the same time allowing all relevant info to be exchanged -courts must balance
• Strategy: when you have $$ you give other side a very long list

Expert Opinions

•   The general rule is that witnesses are prohibited against testifying to their opinions; rather
    they are generally limited to testifying to their observations

•   There is an exception for expert witnesses who, by reason of their special training, education
    and experience, have developed an expertise that carries them beyond the realm of the
    layperson and are therefore entitled to give evidence regarding opinions on relevant matters
Rule 31.06(3): Governs the discoverability of experts
A party may on an examination for discovery obtain disclosure of the findings, opinions and
conclusions of an expert engaged by or on behalf of the party being examined that relate to a
matter in issue in the action and of the expert‟s name and address
• H: This amounts to very wide disclosure obligations surrounding the work of expert witnesses
        o The part examining a witness is entitled to the “findings, opinions and conclusions” of
             any expert witness engaged by the party being examined, plus the name and
             address of the expert
        o Also, a party must disclose the factual information or documents used by the expert
             in arriving at her opinion
EXCEPTIONS FOR UNFAVORABLE OPINIONS: 31.06(3) (a) and (b) the party being examined
need not disclose the information or the name and address of the expert where,
• (a) the opinion was formed in contemplation of litigation ONLY AND
• (b) the party being examined undertakes NOT to call the expert as a witness at trial, then the
    party being examined need not disclose either the contents of the expert opinion or the name
    and address of the expert

Insurance --SEE RULE 31.06(4)

Divided Discovery

Rule 31.06(6)
• This rule provides for a divided discovery, which allows a party to delay disclosing certain
   information unless it becomes relevant after the determination of one of the issues in the
• The test for divided discovery is: only granted in cases where the disclosure of the
   information before the issues is determined would seriously prejudice a party
• For instance:
        o A party has sued for breach of contract, and is asking to see the books of the other
           party to get an accounting of where the money has gone
        o The party being sued will resist opening its books on the grounds that it would be
           prejudicial to its business
        o The court will sometimes grant a divided discovery, where the court will grant an
           accounting only if it becomes necessary after a trial of the issue (i.e. the accountant
           has a conflict of interest) whereupon the parties will go back and be forced to answer
• H: There is a very high threshold for a divided discovery

Questions of Law
• Questions of law are not proper i.e. “Was X negligent?”
• However, a person is entitled to examine with regard to facts supporting a conclusion of law
   pleaded by an adverse party (i.e. questions about the material facts underlying a negligence

Continuing Discovery Obligation
Rule 31.09(1) -similar to obligation in documentary discovery
• Information acquired after discovery that would have been discoverable at the time of the
     discovery must be provided to every other party immediately AND parties must update other
     parties on any errors that later come to their attention regarding the answers they gave in
Rule 31.09(2) The party receiving the information (not the party who acquired the new
information originally) has choice:
         o She can request that the information be sworn in an affidavit

        o   She can request that the party present himself for a further examination for discovery


•   Think of discovery evidence as being used as a sword not a shield --always used to attack
    adverse party, it doesn‟t make sense to rely on your own discovery remarks as evidence at

To Read the Examination into the Trial Record as Evidence\
Rule 31.11(1) provides that a party may read into evidence, as part of his case against an
„adverse party‟, any part of the evidence given on the examination for discovery of that adverse
• The discovery evidence given by an adverse party may be read into the trial record only as
     against that adverse party
Rule 31.11(5) Party Under Disability &Rule 31.11(6) Unavailability of Deponent (due to death,
illness, refusal to be sworn)
• In either of these two instances evidence of examination for discovery may be read into the
     evidence with leave of the court
Rule 31.11(7) Test for Leave of Court to Read in Discovery Evidence
(a) the extent to which the person was cross-examined on the examination for discovery;
(b) the importance of the evidence in the proceeding;
(c) the general principle that evidence should be presented orally in court; and
(d) any other relevant factor.

To Impeach An Adverse Party on Cross Examination
Rule 31.11(2)
• When a witness gives evidence at trial which contradicts the evidence previously given on
    discovery, the discovery evidence can be used to impeach that witness‟ credibility
• Any person adverse in interest may use the examination for this purpose
• In order to use discovery evidence in this way, counsel must comply with ss. 20 and 21 of the
    Evidence Act, requiring that any prior inconsistent statement must be:
        o (a) shown to the witness if it is intended to be used for impeachment AND
        o (b) that the witness be given an opportunity to respond to the inconsistency
• H: this prevents ambush

As Evidence Against the Adverse Party in Another Suit
Rule 31.11(8): when an action is discontinued or dismissed and another action is brought
involving the SAME PARTIES and the SAME SUBJECT MATTER, the evidence given on oral
discovery taken in the former action may be read into or used as evidence at the trial as if it had
been taken in the subsequent action
• Two reasons why we have this rule:
         o Prevents option of dropping action and relaunching it if discovery does not go well
         o Efficiency concerns of cost and time


The Inspection of Property
Rule 32 provides for the court to make an order for the inspection of real or personal property
necessary for the proper determination of an issue in a proceeding
• this is intended to give a party an opportunity to satisfy her questions beyond the testimony
   given on oral examination for discovery
• Grounds:
       o There should be the probability that the inspection will establish the position of one of
            the parties regarding a material fact

        o   since the inspection is part of discovery, it should be granted unless it can be shown
            that it will not assist the court in determining the issues
        o   i.e. see a diamond ring to see if it has a flaw in it

The Physical/Medical Examination of Parties
• Rule 33 and s. 105 of the C.J.A. govern the medical examination of a party
SECTION. 105(2) of the Courts of Justice Act provides that: where the physical or mental
condition of a party is in question, the court may order that the party undergo physical or mental
examination(s) by one or more health practitioners (doctor, dentist, psychologist, etc.)
SECTION 105(3) of the Courts of Justice Act provides that: if the physical/mental condition of a
party is put into issue by another party (e.g. if the defendant wishes to say that the plaintiff is
bringing the claim because he is deranged) the court shall not make an order directing a physical
or mental examination unless
         o The allegation is relevant to a material issue in the proceeding; and,
         o There is good reason to believe that there is substance to the allegation
Rule 33 details the procedure of how this would come about (who attends, the content of the
report etc)
• Rule 33.06(1) requires professional to prepare report and that report is served on all other
    parties right away



Rules Providing for Disposition without Trial
• Rule 19: Default proceedings
• Rule 20: Summary judgment
• Rule 21: Determination of an issue before trial
• Rule 22: Special Case
• Rules 23 and 38: Discontinuance and withdrawal
• Rule 24: Dismissal for delay
• Rule 2.01: Dismissal for procedural misconduct

•   Res Judicata interactions with these rules -if you drop your action or your action is dismissed
    for some sort of procedural delay (23, 38, 24, 2.01) res judicata will NOT apply
         o In such cases there has been no final judicial ruling on the ISSUES of your action
         o Likely though, you will be out of time in most cases in such situations

•   EXAM: Questions that ask how D could get out of the litigation could bring in any of the
    following + mediation, settlement, Rule 25.11 (although its likely that P will get leave to
    amend pleadings)

1. Rule 19: Default Proceedings
• Default proceedings are triggered when the defence fails to file a statement of defence or a
    notice of intent to defend
• The amount of time that the defendant is given to respond to the statement of claim depends
    on the location of the defendant at the time of the pleadings
• There are two steps that the plaintiff must take
        o The plaintiff must first note the defendant into default
                   The plaintiff goes to the registrar and asks that the defendant be noted into
                   Once that happens, the defendant is not entitled to receive correspondence,
                      and the only motion that the defendant is allowed to bring is that setting aside
                      the noting into default

        o   If the defendant has not brought a motion setting aside the default, or if the defendant
            is unsuccessful, the plaintiff will then move for default judgment
                  This is essentially asking the court to turn the statement of claim into an
                     order that requires the defendant to pay everything that has been claimed
                  The reason that we have such a mechanism is that a defendant who fails to
                     respond is deemed to have admitted everything in the statement of claim
                  A court or administrative body may order default judgement against a
•   Recall that under case management Rule 77.08 (Ottawa & Windsor) if no defence is filled
    within 180 days of issue registrar will make an order dismissing the proceeding as

2. Rule 20: Summary Judgment
• Provides that summary judgment SHALL be granted by the court where “it is satisfied that
    there is no genuine issue for trial with respect to a claim or defence”
• The purpose of a summary judgement is to isolate and then terminate claims and defences
    that are factually unsupported
• This is available where a party in an action cannot produce sufficient factual evidence to
    support the allegations made in the statement of claim or statement of defence
• This remedy deals with cases where a substantively adequate claim or defence has been
    pleaded but cannot be proved!
• i.e. can‟t establish breach of contract because you admit in discovery that contract didn‟t exist
• A motion under this rule will therefore occur only after discovery
        o 20.01(1) & (2) allowed to bring it with affidavit material after delivering statement of
             claim/defence but won‟t be approved
• A motion under this rule may be heard before a master!! -“court”
• A successful Rule 20 motion would attract res judicata

Rule 20.03 (1): On a motion for summary judgment, each party shall serve on every other party
to the motion a factum consisting of a concise argument stating the facts and law relied on by the

Rule 20.01
• The moving party must support the motion by affidavit material or other evidence –no witness
   testimony without leave under Rule 39.03
• In response to a motion for summary judgement, the responding party may not rest on the
   allegations or denials in his or her pleadings, but must set out in affidavits or by other
   evidence specific facts showing that there is a genuine issue for trial
• Materials used in discovery might be appended as well
• It is not sufficient for either side to allude to better evidence to be brought at trial; the best
   evidence must be shown at the summary judgment motion

Rule 20.06
• Imposes cost sanctions on improperly brought summary judgment motions
• The cost for the summary judgment motion will be fixed on a substantial indemnity basis and
   will be paid “forthwith”, i.e. immediately (unless court is satisfied that although motion was
   unsuccessful it was reasonable)

Example Ungerman v. Galanis and Haut (ONCA 1991)
Facts: Haut owned a property that both G & H claimed to have purchased. G was leasing the
property and had the right of first refusal on its purchase. To exercise that right he would have
had to present the vendor with an offer and a cheque by the deadline. U said that he owned the
property because he made an offer and G did make any other offer by the date. G claimed the
opposite, that he got a cheque and offer in ontime. G launches action for specific performance, U
counters with the same. G brought a motion for summary judgement, which was allowed because

motions judge found the offer did come in ontime because G produced a cheque as evidence
dated before the deadline. The plaintiff appealed.

Issue: The nature of a “genuine issue for trial” pursuant to Rule 20.04(2).
Decision: Appeal allowed; there was a genuine issue for trial.
• The court‟s function is not to resolve an issue of fact but to determine whether a genuine
    issue of fact exists
• If there is an issue of credibility, a genuine issue for trial exists
• Moving party has onus of showing court there is no genuine issue of fact for trial
• Despite the date on the cheque it could have been delivered at any time -issue is therefore
    one of credibility of evidence
• In this case, Mrs. Haut gave evidence that no cheque was delivered by Galanis, and Galanis
    claimed that there was a cheque delivered
• Therefore, the issue is credibility, and there is thus a genuine issue for trial
Ratio: Credibility in and of itself is a genuine issue for trial.

Example -Aguonie v. Galion Solid Waste (ON CA 1998)
Facts: no facts given
• The function of a court is not to resolve an issue of fact, but to determine whether a material
   fact exists
        o If there is an issue it must go to trial, if not summary judgement will be granted
• An issue of fact that will constitute a genuine issue for trial must be related to a MATERIAL
        o H: i.e. maroon car vs. red car /= material fact
• Therefore, the court‟s role on summary judgment motions must stop short of resolving factual
• On a motion for summary judgment, the court will never asses credibility, weigh evidence or
   find facts -these are all reserved for the trier of fact

Example -Dawson v. Rexdale Storage (ON CA 1998)
• The court was discussing the difference between Rule 20 and Rule 21
• Rule 20 motions may challenge an opponents ability to prove an allegation made in the
   pleadings, while it is not the correct vehicle for determining whether such an allegation is
   legally viable
       o The essential purpose of summary judgment is to terminate claims and defences that
            are factually unsupported

Example -Rogers Cable v. 373041 Ontario ( Gen. Div 1991)
Facts: The defendant landlord had a building whose units had cable, which the defendants were
using, and which the landlord was not paying for. The landlord ran up a $40,000 debt, which
Rogers sued for. The defendant admitted the debt, and provided four post-dated cheques
equalling $40,000. The first three of those cheques bounced. It therefore brought a new action to
collect on the debt, and moved for summary judgment on the grounds that the debt had been
admitted both verbally and by providing the cheques, and therefore that there was no genuine
issue for trial. The landlord‟s position was that Rogers forgave the debt after the cheques were
given, which was why there was not enough money in the account. The landlord signed a sworn
affidavit to this effect and therefore said that there was a genuine issue based on Ungerman, as
there is a credibility problem.

Issue: Whether there is a genuine issue for trial pursuant to Rule 20.
Decision: There is no genuine issue for trial

• Court felt that if they denied summary judgment motion because D had raised an issue of
   credibility this could create a situation whereby in every debt case D could sign an affidavit
   and raise credibility issues, forcing the matter to trial
• Court believed this would allow summary judgment to be too easily circumvented and wouldl
   have an adverse impact on efficiency
• In this case, the landlord did not give any other evidence regarding the debt forgiveness, and
   it is unlikely that he is telling the truth
• Therefore, he is raising a spurious issue

Notes (per Hanycz):
• What level of evidence in support of D‟s allegation would be enough
• Court is doing exactly what court in Unger wanted to avoid -making a finding of fact
• This is bad reasoning
• Based on Ungerman, the court is not supposed to judge the credibility of witnesses
• Therefore, the summary judgment jurisprudence is still uncertain
• SJ holds an important place in our justice system -policy of balancing efficiency and access
   to justice!

3. Rule 21: Determination of an Issue Before Trial
• Rule 21.01: A motion under this rule must be brought before a judge
• Rule 21.02: No evidence is admissible in these motions without leave of the court (Rule 21
    is about whether law exists or does not!)
• Rule 21 only available in actions
• Successful Rule 21 motion would attract res judicata!
• Rule 21 requires an accompanying factum
• As with summary judgment, courts are reluctant to grant a Rule 21 motion except in the
    clearest of cases
• This is an access to justice issue, as efficiency begins to impinge on due process where too
    low a threshold is applied for Rule 21
• A Rule 21 motion is served almost immediately -with statement of defence (except under

•   There are three parts to Rule 21:

Rule 21.01(1)(a) (determination of an issue of law)
• Any party may move for the determination of an issue of law raised in the pleadings before
• Test: judge can grant an order under this section “where the determination of a question may
   dispose of all or part of the action, substantially shorten the trial or result in a substantial
   saving of costs”
• No evidence except with leave
• Heard by judge only

Rule 21.01(1)(b) (no cause of action)
• This rule provides that a pleading may be struck as disclosing no reasonable cause of action
   or defence
• Because on this motion the only issue is the sufficiency in law of the pleading attacked, no
   evidence is admissible
• Rather, all of the facts pleaded are presumed to be true
• Test: A pleading will not be struck unless it is “plain and obvious” that it discusses no cause
   of action or defence
• D is moving for an order that “the wrong described in the statement of claim is not recognized
   as a violation of P‟s rights: (Dawson)

•    Therefore to let P proceed through discovery and trial would be a waste of time and
•    Because this is such a drastic measure –courts are required to give generous reading to the
     statement of claim construing it in the most favourable light possible
•    Same analysis if P moves to strike out D‟s statement of defence
•    Recall: Rule 25.11 also allows for a pleading to be struck but that rule is for more technical
     issues or mistakes in pleading (i.e. forgot to plead duty of care) whereas this rule is for more
     substantive issues (i.e. there is no cause of action that would result in liability)
•    Parallel to 5(1) certification requirement
•    H:
         o A party must be careful about bringing a rule 21 for striking a pleading
         o If a pleading is deficient, the Court will give the other side leave to amend the
              pleading so that it discloses a cause of action
         o Side with deficient pleadings will have to pay costs, although likely on a partial
              indemnity basis, and there will thus be unrecoverable legal fees
         o Therefore, all you have really accomplished is to spend money to improve the other
              side‟s pleading
         o The other alternative is to say nothing and then to jump on the at trial
         o This is also risky, as the judge might get angry and give the other side leave to
              amend regardless

Rule 21.01(3) (additional grounds for a motion by a defendant to stay/dismiss an action)
• The defendant may move to have an action stayed or dismissed on the grounds that:
       o (a) The court has no subject-matter jurisdiction
                 This must be done prior to attorning to the jurisdiction of the court by filing
                    first defence
                 This rule parallels with RULE 17.06 -would include both grounds in your
       o (b) The plaintiff is without legal capacity to commence or continue the action or the
           defendant does not have the legal capacity to be sued
       o (c) Another proceeding is pending in Ontario or another jurisdiction between the
           same parties in respect of the same subject matter
                 This is a res judicata argument
                 The court is being asked to freeze the action until the result from the other
                    action comes out
       o (d) The action is frivolous or vexatious or is otherwise an abuse of the process of the
   EARLIER -make a motion under Rule 21.01(3)
       o If P would like to challenge the capacity of D would move under 7.04

• We must be sure to understand that Rule 21 deals with law rather than fact

RULE          Deals         Jurisdiction       Evidence       Res             Timing        Available
              with                                            Judicata
20            Issues of     Master/Judge       Required       YES             After         Only in
              fact                                                            discovery     Actions
21            Issues of     Judge Only         Not allowed    YES             At            Only in
              law                              except with                    beginning     Actions
                                               leave                          of action

4. Rule 22: Special Cases
• Enables a party to either an action or an application state a question of law in the form of a
    „special case‟ for the opinion of the court

•   This is similar to 21.01(1)(a)
•   The difference is that in 21 the parties are working from a pleading; here that need not be the
    case This would attract res judicata

Rule 22.01(2): TEST
• A judge may hear and determine a special case if he or she is satisfied that the determination
   of the question may:
        o Dispose of all or part of the proceeding
        o Substantially shorten the hearing
        o Result in a substantial savings of costs
        o H: These are efficiency concerns
• The court will not give an opinion on an academic legal question, and will not deal with moot,
   hypothetical, purposeless or speculative questions
• This rule will often be used by legislatures wanting to know whether something is in keeping
   with the Charter  reference question

Rule 22.03(1) Court of appeal hearing of Rule 22 Motion
• A special case may be heard directly by the Court of Appeal
• To do so, the moving party must meet the Rule 22.01(2) test above plus establish that the
   special case raises an issue in respect of which:
       o There are conflicting trial court decisions in Ontario and there is no appellate decision
       o There is conflict between an Ontario appellate decision(s) and an appellate court in
           another province, or among appellate decisions in other provinces
       o One of the parties seeks to establish that an Ontario appellate decision should not be
• H: This is about clarifying the law
• Another thing that is important in special cases is that all parties must agree, and there must
   be an agreed statement of facts
• Can bring a motion under 21.01(a) and 22

Rules 23 and 38: Discontinuance, Withdrawal and Abandonment

Rule 23.01 (discontinuance):
• Permits a plaintiff to discontinue all or part of an action against any defendant
          o Before the close of pleadings as of right by serving a notice of discontinuance (Form
              23A) on all parties who have been served with the statement of claim, and filing the
              notice with the court
          o After the close of pleadings with leave of the court
                   because other parties will have spent $ by this point court will make an order
                       of costs against P based on what others have spent
          o At any time by filing consent in writing of all parties
*Note: close of pleadings = end of all rights of reply this is parallel to amending pleadings!
*Note: if there is a counter claim and main action is dropped, CC takes over as main claim
(definition of CC is it can stand on its own)

Rule 23.06 (withdrawal):
• A defendant may withdraw all/part of the statement of defence at any time by delivering to all
   parties a notice of withdrawal of defence
• Where the defendant withdraws the entire statement of defence, she is deemed to be in
   default, and to have admitted the allegations in the statement of claim
• Default proceedings are triggered
• Don‟t need leave of the court as in discontinuance because P will seek damages as part of
   default proceeding order in order to recoup $ invested so far
• D would need to be granted leave of the court if they had filed a cross claim -same rules
   would apply as 23.01

Rule 38.08 (abandonment)
• An applicant may abandon an application by delivering a notice of abandonment
• No leave required because applications are much less costly
• Rule 38.08(3) Where an application is abandoned, the respondent is entitled to the costs of
    the application unless the court orders otherwise
• Applicant only needs leave where one party to application is party under disability

6. Rule 24: Dismissal of an Action for Delay
• This would not attract res judicata
Rule 24.01:
• A defendant may move to have an action dismissed for delay where the plaintiff has failed:
        o To serve the statement of claim within the prescribed time
                      (note: P has 6 months to serve except under Ottawa/Windsor case
                      management fast track where the statement of defence has to be filed within
                      6 months of issue)
        o To note a co-defendant into default where that co-defendant has failed to deliver a
            statement of defence within 30 days of the default
                   H: i.e. Toyota would move this way if Richardson house hadn‟t been noted
                      into default
        o To set the action down for trial within six months after close of pleadings
                   H: court won‟t grant this motion after 6 months only b/c discovery comes in
                      between close of pleadings and trial and takes much longer than 6 months
        o To deliver a notice of readiness for pre-trial conference under Rule 76.08(1) -
            simplified procedure
        o To move for leave to restore to a trial list an action that has been struck off the trial
            list, within 30 days after the action was struck off
    once in default all D can do is move to get out of default)
• Out of the common law, two principles factor into whether the court will exercise discretion to
    grant Rule 24 motion:
        o To resist the motion, a plaintiff must provide a reasonable excuse for non-compliance
        o A defendant will likely not succeed on the motion if it is unable to show that it has
            been prejudiced by the delay
• H: These two factors are in tension -therefore unclear who has onus of proof
        o Both parties will have to file affidavit evidence (P swearing excuse, D swearing
        o How much is enough to show prejudice?

Example -Belanger v. Southwester Insulation (Gen Div 1993)
Facts: There were four actions brought in Ontario in 1981 regarding damages from formaldehyde
in insulation. At the same time, there were a number of similar actions in the Quebec Superior
Court. In Ontario, plaintiff‟s counsel asked defendant‟s counsel‟s permission to delay reactivation
of the suit until the result in Quebec was determined. Defendant‟s counsel agreed, without
prejudice to their right to resume proceedings upon reasonable notice. Ten years later, the
Quebec actions were dismissed. Following the dismissal, three of the four Ontario plaintiffs
immediately settled. The plaintiff then sought a stay in the fourth pending the outcome of the
Quebec appeals. The defendant then brought a motion to dismiss the fourth for delay arguing 12
years had gone by since action was commenced. (under 24.01(c) action must be set down for
trial w/i 6 months of close of pleadings

Issue: Whether the case should be dismissed for delay.

Decision: Decision for the plaintiff; it should not be dismissed for delay.

• The defendant has established a prima facie case for delay
• The plaintiff claims that the defendants agreed to defer the action, however the defendant
   retained the right to reactivate proceedings upon notice
• However, in order to succeed on a motion to dismiss for delay, the defendant must establish
   that the delay has been unreasonable in the sense of being inordinate, inexcusable, and
   there is a substantial risk that a fair trial will not be possible for the defendant
• Examples of prejudice are the death of a witness, inability to recall important facts, etc.
• In determining whether a delay has been unreasonable, the court should consider:
        o The issues raised by the case -same as those raise in QC
        o The complexity of the issues -(# of P‟s, D‟s etc) P‟s concerns warranted, QC trials
            took 7 yrs
        o The explanation for the delay - trial should have been commenced in 1991
        o All of the surrounding circumstances
• In considering whether D has sustained prejudice court should consider availability of
   witnesses, whether evidence is largely documentary etc.
• Court should balance the right of P to proceed to trial with right of D to fair trial
• There is no such prejudice here -P‟s action not dismissed by must be set down for trial w/i

RULE 2.01: Dismissal of an Action for Procedural Misconduct

Rule 2.01: Permits the court to grant any relief “on such terms as are just, to secure the just
determination of the real matters in dispute”
• Hence, while many Rules have internal punishment mechanisms, this Rule given an umbrella
    penalty clause for non-compliance with the Rules (i.e. 24.1 mandatory mediation = certificate
    of non-compliance)
• Test: “where necessary”
Rule 2.03: The court may, only where and as necessary in the interest of justice, dispense with
compliance with any rule at any time
    • H: This is the court‟s discretional ability not to apply the punishment mechanism

Example - Baksh v. Sun Media (ON SCJ 2003)
Facts: The plaintiff (a solicitor!) represented himself in a defamation suit against Sun. He failed
to comply with numerous court orders, mostly regarding payment of costs, and failing to answer
questions etc. and gave almost no explanation why, as well as little evidence supporting what
little explanation he did give. The defence brought a motion under Rule 2.01 asking for the
dismissal of the plaintiff‟s claim for general non-compliance. The plaintiff requested that the court
make another order “as is just”.
H: D would likely have also argued penalty clause for discovery (31.07(2) & 34.15)
• Court found P had been given sufficient indulgences to the point that he had become
• Also held that asserting you are broke may not be used as a shield to protect against cost
      orders based on frivolous motions and not answering questions
• There is no other order in the circumstances of the case that is “more just” than a dismissal of
      the action
• Costs awarded to D on a substantial indemnity basis


• Definition: A motion is an interim hearing during the process of litigation; it is not an
     originating process

        o   This has implications for service --only originating processes need to be personally
•   A motion involves a party applying to a court for the purpose of obtaining an order directing
    that some act be done in favour of the applicant or otherwise ruling on some matter/issue at
    the request of the applicant.
•   Rule 37 Governs procedure for motions, although some motions have their own procedures
    that supplement Rule 37 (e.g. Rule 20 summary judgment motion)
         o If a procedure/penalty is built into a rule these will trump, in the absence of rule
            specific procedure/penalty you look to umbrella rules (Procedure -37, Penalty -2.01)

Timing of Motions
Rule 37.07(6)
• The notice of motion must be served at least four days before the date on which the motion is
    to be heard
• Although motions are not originating processes some can span the entire litigation -when
    leave of court is required to commence an action
        o i.e. certification of class action under Rule 5(1)
        o i.e. commencing derivative action (action on behalf of shareholders) requires motion
            for leave

Form and Content of Notice of Motion
Rule 37.06
• Every motion is initiated by way of a Notice of Motion that must include:
       o The precise relief sought
                 i.e. summary judgment, compelling party to answer question in discovery etc.
       o The grounds to be argued (including reference to any statutory provision/rule to be
           relied on)
       o The documentary evidence to be used at the hearing
                 Some motions don‟t require documentary evidence, such as Rule 21
                 On the other hand, Rule 20 must have evidence, as a genuine issue or lack
                    thereof must be shown
• Note: A motion is an opportunity for advocacy like a pleading or factum
• Any party can serve a factum in support of any motion
• Factums are mandatory on certain motions, such as Rule 20 and 21

Service and Filing
Rule 37.07(1)
• The notice of motion shall be served on any party or other person who will be affected by the
    order sought, unless the rules provide otherwise
• This generally includes all of the parties to the action
• Moreover, if you are seeking production from a non-party, notice must be served on that party

Rule 37.07(2) (motions not requiring notice):
• There are limited instances where notice is not required:
       o Where the other party has been noted into default
       o Where a very small change must be made in the notice, like a misspelling of a party‟s
       o Where there is a time urgency

Rule 37.07(5):
• Where it appears to the court that the motion should have been served on someone who was
   not served, the court has a number of options:
       o (a) May dismiss the motion, or dismiss it against the person not served
       o (b) Adjourn the motion

        o   (c) Direct that it will be served on that person
        o   H:
                  These are the same notions being repeated
                  Interested parties must be brought to the table
                  Parties should not ambush one another
                  Everyone must be given an opportunity to be heard
•   There will be ex-parte motions where only one party will be there
•   For instance, where one party has been noted into default
•   In those cases, the judge argues for the other side
•   When you argue ex-parte motions, the court is very picky

Place of Hearing for Motions
Rule 37.03(1) All motions shall be heard in the county where the proceeding was commenced or
to which it has been transferred under rule 13.1.02, unless the court orders otherwise.
• This has recently been changed, used to be very complex involving place of residency, where
    lawyer worked etc.
        o New rule reflects adjustments to compensate for how access to justice was being
        o i.e. H used to drive as far away as possible to have motion heard, increase time,
             inconvenience etc.

Rule 37.02(1): Judges Jurisdiction
Grants a judge jurisdiction to hear any motion in a proceeding.

Rule 37.02 (2): Masters Jurisdiction
Grants a master the same jurisdiction to hear motions as a judge EXCEPT in the listed situations
(in which only a judge has jurisdiction):
• Where the power to grant the relief sought is conferred expressly on a judge by a statute or
          o i.e. Rule 21
• To set aside, vary or amend and order of a judge;
• To abridge or extend a time prescribed by an order that a Master could not have made;
• For judgment concerning a party under disability;
• Relating to the liberty of a subject;
• Under ss. 4 or 5 of the Judicial Review Procedure Act;
          o judicial given interim orders or time extensions
• In an appeal
          o masters don‟t have appellate level jurisdiction
**NOTE: over 90% of judicial counties don‟t have masters

Material for Use on Motion
Rule 37.10(2)
• The motion record must contain
        o A table of contents
        o A copy of the notice of motion
        o A copy of all affidavits and other material served by any party for use on the motion
                  i.e factum (if required -look to rule for motion procedure i.e. rule 20&21),
                     highlighted cases you‟re relying on
        o A list of all relevant transcripts of evidence in chronological order
                  not necessarily transcripts themselves!
        o A copy of any other material in the court file required for the hearing of the motion
             (such as the pleadings)

Costs of Motion

S.131 of the Courts of Justice Act: provides that costs of a proceeding or any step in a
proceeding are in the discretion of the court and the court may determine by whom and to what
extent the costs shall be paid…
• “any step in the proceeding” would be a motion

Rule 57.03:
• Courts have the power to determine how much and by whom costs are paid

Rule 57.03(1): Default position on costs
• Following a contested motion, the court fixes costs of the motion and orders them to be paid
   within 30 days, unless it is satisfied of a more just alternative.

Some Alternatives….
1) Costs in the Cause:
   • Awards cost of the motion to the party who‟s ultimately awarded costs of the entire
      proceeding (the party who‟s successful at trial)
   • What this is doing is reserving the decision for costs on motion to the trial judge, who has
      no idea whether the motion is reasonable, well argued, frivolous, etc.
   • This award will therefore normally be given where the motion is reasonable for both
      parties to have contested, and was a close call

2) Costs to a Specified party in the Cause:
   • If the named party is successful overall, that party will be awarded costs
   • If the party is unsuccessful, there will be no costs award at all

3) Costs to a Party in any Event of the Cause:
   • Entitles the named party to receive the costs of the motion no matter what order, if any, is
      made as to costs of the proceeding, and no matter what the outcome of the proceeding
      as a whole;
   • Difference between default is that here party who lost motion pays at trial instead of

4) Costs Payable Forthwith after Assessment Thereof :
   • Entitles the party to immediate assessment and payment of the costs after the motion,
      despite the fact that the proceeding or other aspects of the proceeding have not yet been
   • This happens in exceptional cases when costs are very high or issue is very complex
   • Sent to master or administrative officer to have costs assessed
   • This can be done after trial ruling as well under Rule 57
   • Forthwith means within 5 business days

5) Costs Reserved to the Trial Judge :
   • Costs of the motion are reserved for disposition by the trial judge to assess after trial
   • Trial judge would set costs him/herself or send for assessment
   • This is not the same as costs in the case -parties are given a change to make
   • That is based on the outcome of the proceeding (although it generally ends up being the
      same outcome as costs in the case b/c trial judge didn‟t hear motion and assigns costs at
      the end of a long hearing

6) No Costs:
   • Court specifically orders that no costs be paid in association with the motion
   • Each party absorbs their own legal costs
   • Generally done if motion was reasonable, novel etc.

      o Therefore if you can show you were reasonable, no need for punishment
      o H: important assumption in our legal system -if you loose you‟re unreasonable
      o Are punitive costs actually reducing access to justice b/c people with
         reasonable/novel claims are afraid to bring them for fear of paying their own costs
         and the other sides?


   ETHICS and COMPETENCE are the corner stones of professionalism
   The commentary in the Rules of PC is very binding –it describes how the rules have been
    interpreted by tribunal decisions
   When in violation of any of the Rules of PC, lawyers are called before the disciplinary
    committee at the Law Society under the Law Society Act
         o The disciplinary committee is an administrative tribunal therefore their findings will be
             subject to judicial review

Two Competing Approaches to Professionalism: Atkinson Article –Remains of the Day

Neutral Partisanship                               Moral Activism
Those whose actions are dictated solely by the     Those who recognize constraints beyond the
boundaries of law                                  outer limits of the law.

Mr. Stevens:                                       Miss Kenton:
 Butler who‟s told by his boss to fire all the      Head maid who‟s outraged when she‟s
Jewish maids, he decides to do so without          instructed to fire her maids by Mr. Stevens and
question because that‟s what the rules dictate     says she‟ll leave as well

This concept of professionalism entails            This approach to professionalism entails the
advancing client goals through all legal           belief that lawyers cannot claim moral
means, provided that the ends fall within          absolution for assisting their clients in
the letter of the law.                             „injust‟ acts, however legally proper.

It is up to the client to make the ultimate        Lawyers must take direct moral responsibility
decisions in matters of morality and public        for the consequences of their actions, rather
policy.                                            than insulating themselves within their role –
                                                   bring your own morals from outside the rules to
                                                   bear on the situation.

*Parallel to rules vs. judicial discretion: whether this is a good thing depends on what morals are
brought in through activism and could lead to uncertainty in the law

The Lawyer and The Client: Rule 2
 Rule 2 of the Rules of Professional Conduct govern all aspects of the relationship between
   lawyer and client

Competence: Rule 2.01

Rule 2.01(1):

   Competence is defined in Rule 2.01(1) and provides a „blueprint‟ for the competent
   Requires a high level of initial competence plus ongoing commitment in five areas
        o Knowledge
        o Skills
        o Communications
        o Judgment
        o Practice management

Rule 2.01(a): Knowledge
 A competent lawyer must know „general legal principles and procedures and the substantive
   law and procedures for the areas of law in which the lawyer practices
 LSUC has a minimum requirement for continuing education:
        o 50 hours in self study plus 10 hours in continuing education
        o This is not strictly enforced

Rule 2.01(c): Skills
 Sets out the various skills necessary to deliver competent services to a client:
        o Legal research
        o Analysis
        o Application of law to relevant facts
        o Writing and drafting
        o Negotiation
        o ADR
        o Advocacy
        o Problem solving
 Tension exists between skills application (bar) vs. theory (law school)
        o H: Some people want this resolved but it keeps both sides honest

Rule 2.01(d): Communication
 Requires „timely and effective‟ communication with our client at all stages of a matter
 H: This is the basis for the greatest number of client complaints to the Law Society;
   insufficient communication with clients
        o Bare in mind that what becomes daily life to lawyers is very important/concerning to

Rule 2.01(f) and (h): Judgment
 Require that the lawyer apply intellectual capacity, judgment an deliberation to all functions
 Requires that the lawyer must recognize his own limitations and take steps accordingly to
   ensure the client is properly served
        o i.e. bring in another lawyer who is competent in that area of law, hand off file etc. –

Rule 2.01(e) and (i): Practice Management
 (i) Specifically requires effective practice management as an aspect of professional
        o i.e. don‟t miss limitations periods
 (e) Refers to a competent lawyer performing “all functions conscientiously, diligently and in a
   timely and cost effective manner”
        o i.e. small practitioner who doesn‟t want to settle high cost personal injury case in
           mediation because they want the income from the case and court won‟t uphold high
           contingency fee arrangement for 40 days worth of work
        o H: Notions of efficiency and competence from rules are creaping into rules of
           professional conduct

Quality of Service: Rule 2.02
 Rule 2.02 focusses a lawyers advisory capacity
 Key requirements of this rule are:
        o Honesty and candour
        o Encouraging compromise
        o Dealing with a client‟s dishonesty

Rule 2.02(1): Honesty and Candor
 Rule 2.02(1) holds that, when advising clients, a lawyer shall be honest and candid
 Commentary: holds that the advice given must be “undisguised and clearly disclose what
   the lawyer honestly thinks about the merits and probable results”.

Rule 2.02(2) and 2.02(3): Alternatives to Litigation
 (2) Lawyer must “advise and encourage the client to compromise or settle a dispute
   whenever it is possible to do so on a reasonable basis..”
 (3) Lawyers must specifically consider the use of ADR for every dispute and, if appropriate,
   inform the client of ADR options

Rule 2.02(5) Counselor, Conspirator, Party, Tool and Dupe
 Prohibits a lawyer from knowingly assisting in/encouraging dishonesty, fraud, crime or illegal
   conduct, or from instructing the client on how to violate the law and avoid punishment
 Examples of the types of conduct disciplinary committee has found against:
        o Consistent visits paid in cash
        o Holding/transferring assets into solicitors name
        o Keeping money in trust account paid out to third party not involved in litigation
        o Retained to do something outside area of expertise for very high amount of $$
 Before accepting a retainer or during a retainer, if a lawyer has suspicions or doubts about
   whether he or she might be assisting a client in dishonesty, fraud, crime or illegal conduct,
   the lawyer should make reasonable inquiries to obtain information about the client and about
   the subject matter and objectives of the retainer

Confidentiality and Privilege: Rule 2.03

Solicitor-Client Privilege                           Ethical Duty of Confidentiality
A rule of evidence observed in the adversarial       An ethical obligation imposed on lawyers
It is a very narrow exception to the very broad      Far broader
doctrine of discovery

Merely prevents the introduction of confidential     Requires lawyers to keep the information in
information into evidence;                           confidence

Applies to all communications between                Applies to all information concerning the
solicitor/client made for the purpose of             client‟s affairs acquired from any source during
obtaining legal advice;                              the relationship

Can be waived by the client if the information is    Applies even though others may share the
disclosed                                            lawyer‟s knowledge
Ends once the trial is completed                     Extends beyond the termination of the
                                                     lawyer/client relationship, regardless of the
                                                     reason for termination (including death of the

Justifications for Breaking the Ethical Duty of Confidentiality

   Confidentiality is not absolute and can be broken under two exceptions:
       o Justified Disclosure
       o Permitted Disclosure

Rule 2.03(2) Justified Disclosure
 A lawyer must disclose confidential communications if compelled by statute or ordered by
 A lawyer may disclose confidential information to defend herself from allegations of criminal
   conduct or civil liability in dealing with the client‟s affairs or malpractice/misconduct

Rule 2.03(3) Permitted Disclosure
 Where a client confesses criminal/violent conduct, this brings the lawyer‟s duty to the client
   into conflict with her duty to society
 In these situations Rule 2.03(3) requires the lawyer to make several judgments:
        o There must be the possibility of future harm
        o The harm must be imminent
        o The lawyer must not only have objective grounds, but must subjectively believe that
            there is a risk
        o The intended victim must be identifiable with a high degree of specificity, e.g. name,
            address, etc.
                  H: This precludes people who say they hate women and are going to harm
        o The risk must be either death or serious bodily harm
        o Disclosure is necessary to prevent death or serious bodily harm
                  If the lawyer is aware that the information is available from another source
                      they are not allowed to disclose (even if that other source doesn‟t have a
                      duty to disclose!)
 May disclose: Even after meeting all the preconditions to disclosure, the lawyer is not
   mandated to disclose the confidential client communication; rather, disclosure is permissive
 H: There is room for argument –i.e. harm = psych harm
 Paul Bernardo example –even this did not meet the threshold of these rules for breaking
   privilege for the hidden tapes became a dupe of his client though by taking the tapes and
   hiding them in his safe.

Conflict of Interest: Rule 2.04

   The application of this rule often restricts the mobility of lawyers from firm to firm
   Example: H‟s rainmaker in her firm who set up a numbered company to compete with the
    client he was representing using information he received acting as the client‟s lawyer. Had
    student work on the case –partner was allowed to resign from the practice of law

   Two main branches of conflict of interest:
    a. Where the lawyer might prefer the interests of one client over those of another
    b. Where the lawyer‟s judgment might be compromised concerning loyalty to a client,
       usually because of the lawyer‟s personal interest, financial or otherwise

Rule 2.04 (2) and (3) Representing Sides in a Dispute:
 Rule 2.04(2) A lawyer shall not advise or represent more than one side of a dispute
 Rule 2.04(3) Where a lawyer is retained to represent two parties on the same side of the
   dispute and it becomes apparent that a conflict of interest is likely to arise: The lawyer can‟t
   continue to act unless he discloses the potential conflict to the parties and the parties give an
   informed consent on his continuing to act

Rule 2.04 (4): Former Clients:
 The duty of confidentiality protects client confidentiality even after the relationship is over

   Therefore a lawyer who has acted for a client can‟t subsequently act against that client in the
    same or any related matter, or in any new matter if the lawyer received relevant confidential
    information from the first retainer
         o i.e. May have strategic information –i.e. CEO won‟t ever go to court
         o Example: Coca Cola example in Jamaica, while problem was developing they
            retained every law firm in city for small piece of litigation so they couldn‟t be retained
   Martin v. Gray
         o This almost violates the Charter right to mobility, as it forces you to take a job and sit
         o In Ontario, the court found that you cannot force lawyers to sit in one firm
         o Now, what you have in law firms is a firewall, such that the conflicted lawyer is
            forbidden from communicating with anyone regarding the offending file
         o Even so, the client may still get the firm kicked off the record where the lawyers has
            inside information
         o Courts are very sympathetic to clients in this situation
   2.04(5)
         o It is very difficult for it to be permissible to sue a former client
         o H: These rules are about bringing the justice system into disrepute

Rule 2.04(6): Joint Retainers
 Joint Retainer = 2+ clients ask a lawyer to represent them in the same matter
 Rule 2.04(6) If a lawyer is requested to act jointly they must:
   1. Ensure there is no conflict of interest;
   2. Inform all of them that she has been asked to act jointly
   3. Stipulate that she can‟t hold information confidential from the others in the retainer
   4. Clients must all agree that if a conflict arises during the retainer, the lawyer will be unable
        to act for any of them

Fees and Disbursements: Rule 2.08

Rule 2.08(1): A lawyer may not charge or collect a fee unless it is (a) reasonable and (b) has
been disclosed to (and agreed to by) the client in a timely manner
 Reasonableness is assessed based on the following factors: Commentary
         o the time and effort required and spent,
         o the difficulty and importance of the matter,
         o whether special skill or service has been required and provided,
         o the amount involved or the value of the subject-matter,
         o the results obtained,
         o fees authorized by statute or regulation
         o special circumstances, such as the loss of other retainers, postponement of payment,
            uncertainty of reward, or urgency.
 Commentary: The fiduciary relationship between lawyer and client requires full disclosure in
   all financial dealings between them and prohibits the acceptance by the lawyer of any hidden

Rule 2.08(3-5): Contingency fees
 Contingency fees are permitted in most areas of the law, but not in family, criminal or quasi
   criminal matters (i.e. securities law –quasi criminal sanctions)
        o This is because people are desperate and therefore more vulnerable
 CFA must be clear and must advise client that they may apply to superior court of justice to
   determine whether it‟s reasonable

         o   The option to have ones fee reviewed is available in any case but only contingency
             fees carry a positive obligation to tell client of this option
   H:
         o   The difficulty is, sometimes if there is no contingency there will be no access to
         o   Hence, you cannot hold yourself to this standard and then not effectively provide
             legal aid
         o   Moreover, where people are not allowed to charge contingency but do so anyways,
             they are not bound by the usual safeguards

Withdrawal of Services: Rule 2.09
 While a lawyer has a right to decline to represent anyone for any reason prior to the retainer,
   once the retainer has been entered into, the lawyer‟s right to terminate it is restricted
 A client may terminate the relationship at any time for any reason
 This can be contrasted with the Cab Ranked Rule in the UK whereby lawyers are very limited
   in their ability to turn down clients within their expertise if they‟re willing to pay a reasonable
        o As a result lawyers define their practice very narrowly and say practice is too full
        o H: Which is better?

Rule 2.09(1) Solicitor Termination Once Retained
 A lawyer may only terminate the retainer for good cause and with appropriate notice
 Good cause: depends on several factors
        o The nature/stage of the matter
        o Relationship with client
        o The lawyer‟s competence
        o The prejudice to the client from the withdrawal
        o Etc.
 Reasonable Notice: Commentary:
        o The governing principle is that the lawyer should protect the client‟s interests to the
           best of the lawyer‟s ability and should not desert the client at a critical stage in the
           matter or at a time when the withdrawal would put the client in a position of
           disadvantage or peril

Rule 2.09 (2) and (3) Optional Withdrawal
 Rule 2.09(2) A lawyer may withdraw in cases of “a serious loss of confidence between the
   lawyer and the client”.
            o Examples from commentary: lawyer being deceived by client, client refusing to
                 take lawyer‟s advice
 Rule 2.09(3) A lawyer may withdraw for non-payment of fees, but only on reasonable notice
   to the client AND if it will not result in “serious prejudice” to the client.

Rule 2.09(7) Mandatory Withdrawal
 The rule sets out the five circumstances , criminal or otherwise, in which it is mandatory to
   withdraw from representation of a client:
        o Discharge by the client
        o The client instructs and insists that the lawyer to do something inconsistent with the
           lawyer‟s duty to the court
                Some lawyers use this as a way around confidentiality –i.e. Murry (Bernardo
                    required him not to disclose the tapes, this made H‟s deal an abomination of
        o The client is guilty of dishonourable conduct in the proceedings or is taking a position
           solely to harass or maliciously injure another
                i.e. the client wants you to put 3 warehouses of documents on schedule B to
                    force the other side to waste money fighting privilege

                    Also arises in family law –client may argue they‟re just aggressive, court will
                     generally side with client
        o    It becomes clear that the lawyer‟s continued employment will lead to a breach of the
                   i.e. if you continue to act you‟ll be in conflict of interest
        o    The lawyer is not competent to handle the matter

Making Service Available: Rule 3.01

Rule 3.01: provides lawyers „shall make legal services available to the public in an efficient and
convenient way that commands respect and confidence and is compatible with the integrity &
independence of the profession
 BUT in ON lawyers do have a general right to decline a particular representation
 Commentary: The right to turn down representation is to be “exercised prudently, particularly
    if the probable result would be to make it difficult for a person to obtain legal advice or
 Duncan Kennedy Article:
         o Lawyers should feel guilty if they take on cases that they do not believe in and we as
             a society, should disapprove of such lawyers
         o If you think case will do more harm than good for society you should not take it on
         o If everyone took on morally good cases this could shift some of the problems in our
             adversarial system –the poor with good causes would get good representation and
             the rich with bad causes would have to pay more for worse legal ability
         o If someone will not have any legal representation and will be exploited in the system
             without your legal help you should take the case
         o This is moral activism
         o Answer to this critique: our society interests are represented by having zealous
             advocacy on each side –in doing so, justice will be achieved
         o H: litigants never have equal access to resources and therefore some will have better
             advocates working for them –given this reality of our adversary model is the above
             assumption valid?
         o This also becomes a very big brother argument
         o Such thinking can have an impact on novel claims –many believe we‟re becoming too
             regulated as a society and that novel claims like Richardson house would be a bad
             thing for society
 H: We have positive and specific obligations as lawyers to make legal services available and
    yet have no duty to accept a retainer (no corresponding personal duty along the lines of the
    cab ranked rule)
         o What if a situation arose where no one wanted to retain an indigent client with very
             complex legal matter –these rules are in tension & there‟s no legal aid in civil litigation


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