Legal Process Summary

Document Sample
Legal Process Summary Powered By Docstoc
					Legal Process Summary

The Civil Litigation Process
Due Process
    notion that adjudicative process should be fair to both parties
    No constitutional or common law doctrine that requires civil court proceedings be fair
    yet Rules of Civil Procedure typically go beyond minimal levels of due process or natural justice
    Basic elements of due process:
           o notice of proceeding in advance and in writing and brought to attention of party (served)
           o right to be heard
           o impartial decision maker
           o timely notice of every step in the proceeding
           o right not to be bound by any decision without participation (evidence & argument)
           o right to appeal
           o right not to be dragged through discovery if no genuine issue for trial (summary judgment) or
                adversaries pleadings do not disclose a reasonable cause of action (motion of non-suit)

Basic Procedural Framework
Which Court?
    < $10,000 small claims
    >$10,000 Ont. Sup. Ct. J. (Inherent Jurisdiction); Provincial Court (legislatively conferred jurisdiction – e.g.,
       family law matters)
    $10,000-$50,000 – Simplified procedure

Action or application
     Action – for factual disputes – matter requires trying of fact
     Application – question of law with limited factual dispute (e.g., interpreting a will of CFA)
If Action
     Statement of Claim
     Statement of Defence
     Pleadings
     Discovery
     Summary Judgment (optional)
     Default Judgment – If D raises no defence
     Case Management
     Trial
     Appeal – question of law or mixed question of law/fact




                                                                                                                         1
Economic Costs of Litigation
    Costs of litigation include the lawyer-client costs and systemic costs

Systemic costs:
     Taxes, fees, user fees (fess for filing statements of claim, defence, issuing a summons); AND
     Costs awarded by judges

Cost Awards
    Court has jurisdiction to award costs pursuant the s. 131 of CJA and rule 57 (esp. 57.01(4)) of RSP
    Courts of Justice Act R.S.O. 131 Subject to the provisions of an Act or rules of court, the costs of and
       incidental to a proceeding or a 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.
    Rule 57 actors that a court may take into consideration when using its discretion to award costs
    NB 57.01(1) in addition to the result in a proceeding court may consider any offer to settle made in writing
    NB 57.01(4) Nothing in this rule or rules 57.02-57.07 affect authority of court under s. 131 of CJA to award or
       refuse costs etc...(Effectively confirms courts discretion)
    despite discretion successful party should receive an award of costs absent special circumstances (Campbell
       (Donald) & Co. v. Pollack)
    Distributive costs – costs awarded on an issue by issue basis

Pittman Estate v. Bain, Ont. Gen. Div 1994
Facts
     Award of costs for tainted blood case. 3 defendants, all found liable.
     Court considers r. 57.01 (1); in particular:
            o amount claimed and recovered
            o apportionment of liability
            o complexity of the proceeding
            o importance of the issues
            o conduct of the parties
     r. 57.01(4); in particular:
            o authority to award/refuse costs in respect of a particular issue
            o permission to award a percentage of costs
Disposition
    Factors that effect cost award:
     The plaintiffs received a significantly lower award then sought
     No offers to settle made by any party
     apportionment of liability defendants (not itself always relevant to cost but here apportionment of liability
        roughly reflected amount of time spent against each defendant)
     trial factually and legally complex
     extremely important, not only to each party, but because first such case in Canada and because of fatal nature
        of AIDS which could eliminate witness before appeal
     Conduct: Red cross slow in producing documents. Counsel for P did create some delay and costs should not
        be born by D (broad cross-examinations; leading questions; evidence not ‘polished’, tenacity on losing issues)
     Distributive costs not awarded – too labour intensive; therefore court opts of a percentage award
     Percentage award – done pursuant to authority of 57.01(4) – so court awards costs for percentage of time spent
        by P on successful issues and subtracts delays caused by plaintiff = 60% of costs on partial indemnity basis




                                                                                                                     2
Scale of Costs Partial v. Substantial Indemnity
     RSP s. 103 (definitions):
     “partial indemnity costs” mean costs awarded in accordance with Part I of Tariff A
            o usually 30-60% of what client would pay solicitor in fees and disbursements
     “substantial indemnity costs” mean costs awarded in an amount that is 1.5 times what would otherwise be
        awarded in accordance with Part I of Tariff A
     award of costs on enhance (substantial or full indemnity) basis “should only be made in very exceptional
        circumstances (Procor Ltd. v. USWA 1990)
            o e.g., if party made unproven allegations of fraud or dishonesty (Murano v. Bank Montreal)
            o or party engaged in dishonest/misleading conduct in pre-trial or at trail (539618 Ontario Inc v.
                Olympic Foods (Thunder Bay) Ltd.)
            o the fact that na application has little merit no basis for awarding solicitor client-costs (Young v. Young,
                SCC 1993)

Cost Awards against Council
Will Lawyer be held responsible for personally paying clients costs?
    In ON rule 57.07(1) deals with cost orders against a lawyer – allowable when lawyer has “caused costs to be
       incurred without reasonable cause or to be wasted by undue delay, negligence or other default”
    most likely not – basic principle is that cost are compensatory for a party not punitive for a barrister (Young v.
       Young, - Jehova’s witness case); BUT
    maybe if lawyer acted in bad faith in encouraging delays though excessive motions, applications, submitted
       repetitive and irrelevant material; OR
    if lawyer makes decisions without consent of client– e.g., starting an action – they may be order to pay costs
       (Dumart Packing Co. v. Dumart)

Cost Awards against 3rd Parties
    cost awards against third parties that support a litigation financial, but are not themselves parties, may be liable
       for costs under tort of maintenance
    maintenance is wanton or officious intervention in a lawsuit (Young; McIntyre)
           o no cost awarded against Church group in Young; no maintenance

Fixing Costs
     along with determining the scale of costs court also has power to affect amount of costs in number of ways
     rule 57.01(3) permits court to fix costs of the trial following initial costs order (norm in Ontario)
     previously in ON costs were most often determined by assessment officer according to a tariff (with judge
        retaining discretion)
     in 2002 cost grid scheme introduced:
            o judge/master fixes costs at the of hearing by reference to the grid
            o assessment can be directed in exceptional cases (but this is done according to the cost grid) pursuant to
                rule 58
            o cost grid formula: hourly rate x time sent
     Court since held that fixing cost nom simply mechanical exercise – grid formula one element. “Overall the
        objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular
        proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant” (Boucher)
     So fixing costs in ON = grid formula and consideration of factors set out in 57.01(1)
     Risk Premiums – Should the court factor the risk assumed by the successful parties lawyer into an award of
        costs?
            o NO the risk of non-payment to the plaintiffs’ lawyer are not a relevant factor under the costs scheme in
                Rule 57.01(1) (Walker v. Ritchie, SCC 2006)




                                                                                                                        3
Lawyer-Client Relationship

LSUC Rules of Professional Conduct
    r. 2.08
   (1) A lawyer shall not charge or accept any amount for a fee or disbursement unless it is far and reasonable and has
   been disclosed in a timely fashion

    Commentary: fair and reasonable depends on time and effort spent, difficulty and importance of the matter,
    whether special skill or services was required and provied, the amount involved or value of the subject matter, the
    results obtained, fees authorized by statute or regulation, special circumstances eg., loss of other retainers,
    postponement of payment, uncertainty of reward, or urgency

Assessment of Solicitors Account
    assessment of account under Solicitors Act when the retainer is not disputed
    when the retainer is disputed the solicitor should bring an action
    If client owes solicitor, can obtain a writ of execution for the seizure and sale of the client’s personal and real
       property
    Solicitor’s lien allows solicitor, without assessment, to retain possession of client’s property until fees have
       been paid

Contingency Fee Agreements
    no longer per se champertous (McIntyre)
           o champerty an egregious for of maintenance where the maintainer stands to profit from the litigation
           o must look to solicitors motive, evidenced by fees, to determine champerty
    heavily regulated under s. 28.1 of the Solicitors Act and promulgated regs O. Reg 194/05
    s.24 allows court to declare CFA void and assess costs in ordinary manner if it deems fees not to be “fair and
       reasonable under all circumstances”
    Fairness – circumstances surrounding the making of the agreement (Rapheal; Cogan)
           o legal advice
           o education of parties
           o past experience with CFA
           o provisions in the CFA
    Reasonableness – fees charged (Rapheal; Cogan)
           o LSUC r. 2.08(3):
                    The likelihood of success
                    The nature and complexity of the claim
                    The expense and risk of pursuing it
                    The amount involved of the expected recovery
                    Who is to receive an award of costs
           o “Valid social objective of ensuring access to justice” (Cogan)

Additional Approaches to Financing Litigation
Private Insurance
     targeted at middle income earners who can’t afford legal advice and won’t have it financed
     finances ocsts of specific legal services (not usually litigation)
     contentious issue – how does one choose a lawyer (lead to LSUC litiation)
            o Fully open – individuals can chose any lawyer
            o Partially open – restricted to lawyers of a given region or members to plan
            o Fully closed – all claims handled by full time staff lawyers




                                                                                                                           4
Paralegals
     legal services provided for compensation without lawyer supervision
     defences to minor criminal matters, small claims court actions, drafting of wills, immigration matters, and real
        estate transactions
     not law clerks – who perform same services under supervision of lawyers
     now regulated by Law Society of Upper Canada

Legal Aid
    very little legal aid available for civil matters
          o not likely to get LA for a personal injury claim
    It tends to be directed towards:
          o crime
          o family law
          o immigration
          o refugee
          o poverty issues
          o landlord/tenant issues
    Income cut-off quite low for legal aid (around or below $20,000/yr)
    In Ontario there is a mixed system – staff lawyers, community clinics (duty counsel), private practitioners




                                                                                                                     5
6
Commencement of Proceedings

Things to Consider Prior to Commencing Litigation
    strength of case (substantive law, evidence, enforceable judgment?, availability of resources)
    clients goals
    LSUC r. 2.02(2) – lawyer’s should encourage compromise and settlement
    r. 2.02(3) – encourage use of ADR
    r. 2.02(5) – When advising a client, a lawyer shall not knowingly assist in or encourage any dishonesty, fraud,
        crime, or illegal conduct, or instruct the client on how to violate the law and avoid punishment

Capacity
    Does the client have the ability to exercise his rights within a legal proceedings; AKA is the personally
       mentally and physically fit enough?
    r.1.03 RSP definition of “disability” relates to capacity
    r.7 sets out the rules governing the appointment of a litigation guardian

Standing
     Does the person have a sufficient interest in the claim that is about to be brought for the legal system to allow
       them to bring the claim?
     usually relevant question if claim is based on matter of public interest but doesn’t directly affect the individual
     Historically authorization of AG needed to commence/authorize matter of public interest; conflict of interest
     Trilogy (Thorson, McNeil, Borowski) established that before standing will be granted 3 criteria must be met:
           1. there must be a justiciable and serious issue of validity of the legislation in question
           2. applicant must be directly affected by, or have a genuine interest in the validity of the legislation
           3. there must be no other reasonable and effective way to bring the legislation’s validity before the courts.

       Finlay broadens matters of public interest to include administrative plans (no longer just legislation); same 3
        requirements + some additional constraits
            o expansion of the rights of private citizens to bring matters of public interests to the courts

    Canadian Council of Churches case marked a contraction of those rights
           o sought to challenge the Immigration Act on a matter regarding refugees
           o standing was not granted
           o 3 conditions of trilogy applied
           o court decides that the claimant fails on the third tenet of the test
           o “the granting of public interest standing is not required when, on a balance of probabilities, it can be
              shown that the measure will be subject to attack by a private litigant”
           o Application: No reason that an individual refugee wouldn’t be able to challenge the validity of the
              legislation
     Implications of this decision
           o does it encourage private interest groups to use the misfortune of a particular individual to further their
              own social political agenda?
           o Is the court’s assertion realistic – will a refugee actually be able to bring this claim forward
                   only with serious help and potential interference from interested 3rd parties
    Canadian Bar Association v. BC (consolidated description of public matter cases)
           o Part of the CBA’s mandate is public advocacy
           o CBA seeks standing to challenge funding of legal aid in BC
           o Allege that legal aid is inadequate and violates the Charter, written and unwritten Constitutional
              provisions and international conventions
           o does not attack the validity of any particular provision of a statute or regulation or administrated action
           o challenge is that there is a failure to enact legislation to address an important issue – essential trying to
              force the government to legislate
           o Application of 3 part test:

                                                                                                                          7
            o   Serious issue (para 457) – serious issue must relate to challenges to existing legislation or
                administrative scheme.
            o   Genuine interest – some argument, but wouldn’t disallow action on this part of the test
            o   Effective alternative – there have been cases where certain aspects of legal aid funding has been
                challenged by individuals, so alternatives exist

Jurisdiction
     def: authority of the court to hear and decide the dispute
Courts of Justice Act
s. 11 the Ont. Sup. Ct. J. “General Division has all the jurisdiction, power and authority historically exercised by the
courts of common law and equity in England and ON” (Inherent Jurisdiction)

80 Wellesley St. East Ltd. v Fundy Bay Builders Ltd., OCA 1972
Facts
    At trial judge finds he does not have jurisdiction to regarding a property dispute
Rule
    “Except where provided specifically to the contrary, the Court’s jurisdiction is unlimited and unrestricted in
       substantive law and civil matters”

Territorial Considerations affecting Jurisdiction
     old common law only gave jurisdiction to courts in territory where the defendant was served
     rules have changed to authorize service “ex juris” or “service out” = service of defendant outside territory of
         issuing court
     In ON defendants can be served out without leave for certain categories
     RSP 17.02 – “a party can be served, without a court order, outside Ontario with an originating process or
         notice of a reference where the proceeding against the party consists of a claim or claims” in respect of
             o real property in ON
             o administration of the estate of a with real property in ON or personal property if the deceased was a
                 resident of ON at time of death
             o Tort committed in ON; or damaged sustained in ON
             o Counterclaim, crossclaim or third party claim
             o etc....see rule
     If the case does not fit into a category the plaintiff can seek leave of the court for service out r. 17.03

Moran .v Pyle National (Canada) Ltd., SCC 1975
Facts
    A Sask. woman’s husband was electrocuted when removing a lightbulb. Manufacture is in ON.
Disposition
    Court allows extra-territorial service
    in determining where a tort has occurred for the purposes of establishing jurisdiction “it is unnecessary and
       unwise to have resort to any arbitrary set or rules”




                                                                                                                           8
Extra-territorial Service and Enforcement of Judgments
     until 1990 courts would only enforce judgments from courts of other provinces if the defendant had been
        served according to old common law rule – served in territory of court rendering judgment, then Morguard

Morguard Investments Ltd. v. De Savoye, SCC 1990
Facts
    A BC defendant is served-out in BC by for a proceeding in Alberta
Disposition
    Court unanimously upheld enforceability of Alberta court’s decision
    overruled common law which ” fly in the face of the notion of trying to great a unified nation.
    but the court must exercise restraint in assuming jurisdiction over persons in other provinces; judgment
       enforced only when there is a “real and substantial connection” between the matter and the province where
       the action is tried.

       Braintech v. Kostiuk- BC court refuses to enforce judgment from Texas because only connection was that
        website was hosted in BC.

Hunt v. T & N plc, SCC 1993
    held that jurisdcitional principles in Morgaurd were founded on the Constitution and thus courts must exercise
        jurisdiction with “the principles of order and fairness”
    Real and Substantial Connection Test – supersedes rules of judicial jurisdiction
    Therefore categories set out in r. 17.02 not determinative of a “real and substantial connection” for establishing
        jurisdiction

       So assumption of jurisdiction, even if it meets the rules of service out (r17.02) can be done on constitutional
        grounds. - This was done in 5 appeals to OCA where only connection to ON was the fact that the P continued
        to suffer in ON
            o 4 appeals – no jurisdiction – foreign defendant had not engaged in conduct in which they would
                 reasonably have foreseen the obligation to defend against a claim in Canada.
       forum non conveniens – common law doctrine giving courts discretion to stay proceedings
       Defendants can rely on this doctrine to:
        1. bring a motion to stay the proceedings
        2. apply to another court
         So courts do not have to assume jurisdiction, either by invoking constitutional principles (unlikely) or by
            using this doctrine (much more likely




                                                                                                                      9
Muscutt v. Courcelles, OCA 2002
Facts
     P injured, brings suit against out of province D. Only connection is fact that injured P is residing in ON. All
       D’s served out through assumed jurisdiction (were not served in the territory, did not consent to extraterritorial
       service)
Issue
    1. Is r. 17.02(h) [category for tort damages sustained in ON] ultra vires the province?
    2. Can the ON Sup. Ct. J. assume jurisdiction over out of province defendants?
Disposition
     r. 17.02 (h) is procedural in nature and is not ultra vires; AND
     can be challenged for not meeting the real and substantial connection test; AND
     D can apply for stay of proceedings pursuant to s. 106 of CJA; AND
     D can move to have action stayed or dismissed pursuant to r. 21.01(3)
     This scheme means r. 17.02(h) complies with constitutional requirements in Hunt
     Flexible fact-specific test for real and substantial requirement involves considering 8 factors
       1. connection between forum and the plaintiff’s claim
       2. connection between forum and defendant
       3. unfairness to D in assuming jurisdiction
       4. unfairness to P in not assuming jurisdiction
       5. involvement of other parties
       6. court’s willingness to recognize and enforce an extra-provincial judgment rendered on same jurisdictional
            basis
       7. whether the case is interprovincial or international in nature
       8. comity (deference given to) and the standards of jurisdiction recognition and enforcement prevailing
            elsewhere
Application
    1. P required extensive medical attention in ON – damages represent significant connection
    2. D did not have any connection with ON, but not necessary in all cases
    3. D is insured for suits in other provinces – not unfair
    4. P injured, hard to travel, not insured for litigation – unfair
    5. involvement of other parties not significant factor
    6. appropriate for ON courts to recognize and enforce judgment from other provinces on same jurisdictional basis
    7. interprovincial – clearly weights
    8. because interprovincial this factor not relevant
Notes
     forum shopping looked down upon (hunting for jurisdictions where substantive law would be applied in P’s
       favour
     Tolofson – P tried to bring action in BC rather than Sask to avoid limitation period – SCC rules that courts
       have to apply the law of the place where the tort occurred, including LP’s

Serving of Documents
     r. 16.01 – Service rules
     r. 16.01 (1) originating process (document commencing a proceeding – statement of claim, notice of action,
        notice of application, etc...see r.1.03 def’s)
     r. 16.01(4)) – for documents that are not an originating process (i.e. affitdavit) then this rule sets out ways to
        serve these documents (less onerous than serving originating process)
     16.02 – Personal Service
            o general rule at common law – “for personal service to be effected the process need not be delivered
                directly by the process server to the intended recipient, just as long as the party to be served actually
                does receive the process into his possession” (Rupertsland Mortgage Investement Ltd. v. Winipeg)
            o rules has specific guidelines for serving different parties
     16.03 – Alternatives to Personal Service



                                                                                                                            10
Limitation Periods
    time limit on ability to bring forward a claim/initiate proceedings
    New Limitations Act in 2002 – came into effect in 2004

Limitations Act
    s. 4 – Basic limitation period; no claim brought years after discovery
    s. 5 – (2)discovery occurs on the earliest of:
            o the day when the person bringing the claim first knew that the injury, loss, damage occured etc...; or
            o the day on which a reasonable person with abilities and in the circumstances of the claimant would
                have known
            o (2) presumed that the claimant knew of the matters referred to on the day of the act/omission unless
                contrary is proved.
    s. 6 Minors not does not run until they reach the age of majority; except when they have a litigation guardian
    s. 7 (1) Incapacitated persons – limitations period does not run while the person is incapacitated unless they
        have LG
            o (2) person presumed capable unless contrary proven
    s.10 - basic limitation does not run for assaults/sex assaults if person is physically/mentally incapable of
        commencing proceeding
    s.10(2) – if assault committed by intimate/dependent relation, claimant presumed to be incapable
    s 11 – if claimant and person against whom claim has been made agree to have an independent 3rd party resolve
        the claim the limitation periods in s. 4 & 15 don’t run
    s.14 notice of claim being served to other party may be considered by court to determine when the LP began to
        run
    s. 15 (1)&(2) Ultimate limitation of period is 15 years
    key exceptions:
            o s.15 (4) minors, incapacity, assault and sexual assault; or if injury loss or damage willfully concealed
                by person against whom the claim is made
            o s. 16 outlines types of claims where no limitation period runs
            o s.17 environmental claim




                                                                                                                   11
12
Res Judicata
    Common law doctrine to prevent the re-ligation of matters that have already been judicially determined:
    the doctrine has 2 branches:
       1. Cause of action estoppel (claim preclusion)
       2. Issue estoppel (issue preclusion)
                Non-mutual issue estoppel/abuse of process
    This doctrine prevents someone from bringing the same claim against the same party after it has been already
       be dispensed with
           o provides closure, respects judicial authority, prevents clogging of the court

Cause of Action Estoppel
    Once the dispute has reached a final determination it may not be re-litigated; if:
    the parties are the same
    the dispute, in essence, is the same

Hoque v. Monteral Trust Co. of Canada, NSCA 1997
    Facts
          o P place mortagages on properties. He goes into bankrupcy
          o D (Montreal Trust Co.) forecloses on the mortgage – some judicial proceedings occurred during the
              bankruptcy
    Test for cause of action estoppe
          o A second proceeding that addresses “those issues which the parties had the opportunity to raise
              and, in all the circumstances, should have raised” in a previous proceeding will be barred.
    In determining whether the matter should have been raised, a court will consider whether:
          o the proceeding constitutes a collateral attack on the earlier findings
          o it simply asserts a new legal conception of facts previously litigated,
          o it relies on "new" evidence that could have been discovered in the earlier proceeding with reasonable
              diligence,
          o the two proceedings relate to separate and distinct causes of action
          o in all the circumstances, the second proceeding constitutes an abuse of process.

Issue Estoppel
     precludes re-litigation of specific issues decided in a specific suit, even if the new litigation involves a different
        cause of action
     Requirements for issues estoppel (Danyluk):
            1. the issue must be the same as the one decided in the prior decision
            2. the prior decision must have been final
            3. the parties to both proceedings must be the same, or their privies (mutuality requirement)
                      privies (those who have privity to a contract)
                      Consider privies in the context of estates – all the beneficiaries of in an estates proceeding are
                        privy to the ruling (they would be barred from raising the issue again)
                      mutuality requirement subject to exceptions – flexible doctrine

       Mutuality requirement is an underpinning for both cause of action estoppel and issue estoppel!

    Mutuality and Non-mutual issue estoppel
     Mutuality essentially prevents findings of fact in one process from impacting decisions in future process unless
       the parties in the later process are the same.
     Defensive non-mutual estoppel – when a defendant prevents the re-litigation of an issue from a proceeding in
       which he was not a party
     Offensive non-mutual estoppel – allows plaintiff’s to prevent the re-litigation of an issue from a proceeding
       in which was not a party
           o e.g., D found liable for negligence, same negligence affected P, cannot re-litigate negligence issue
     rationality of mutuality requirement has been criticized; especially in cases of offensive non-mutual estoppel
                                                                                                                         13
       ultimate policy of issue estoppel: prevent cost and vexation of multiple lawsuits, judicial economy, consistent
        decision, increase reliance on adjudication.
            o offensive non-mutual issue estoppel is consistent with these purposes (no repeat litigation for
                defendant, more economical, more consistent)
       Abuse of Process doctrine – in Canada, courts have upheld mutuality requirement but have used the abuse of
        process doctrine to prevent the re-litigation of issues when issue estoppel requirements aren’t met.

Abuse of Process and the Role of Criminal Convictions in Civil Proceedings
    In ON, a criminal conviction is admissible as prima facie evidence of civil liability only
    prima facie evidence is subject to rebuttal
    therefore there may be situations that arise for re-litigation of certain issues dealt with in a criminal process
    this could create situations where there is a clear abuse of process
           o re-litigating an entire criminal conviction not a good use of public resources
    However, issue estoppel can not be invoked in these circumstances – the PARTIES are not the same (criminal
       proceedings involve the Crown)

Demeter v. British Pacific Life Insurance Co., ONSC 1983
Facts
    P bring action against an insurance company to receive proceeds of his deceased wife’s life insurance policy.
    Complicated by the fact that he was convicted for her MURDER
    D claims hearing matter would be an abuse of process
Decision
    gravamen of the abuse is the attempt to relitigate an issue already tried
    “the use of a civil action to initiate a collateral attack on a final decision of a criminal court o competent
       jurisdiction in an attempt to relitigate an issue already tried is an abuse of the process of the court.”

Toronto v. CUPE, Local 79, SCC 2003
Facts
     YMCA instructor convicted of sexually assaulting a boy under his supervision. Grieves his dismissal before
        the Labour Arbitrator and is held to have successfully rebutted the accusation of sexual assault.
Issue
     Can the decision of the Labour Arbitrator that contravenes a previous decision from a criminal hearing be
        grounds for re-instatement of the employee?
Disposition
Issue estoppel
     1st 2 requirements are met, but not mutuality so doctrine doesn’t apply
             o criminal case between O and Crown; arbitration was CUPE and Toronto. Crown not privy of City of
                 Toronto
Collateral attack
     rule against collateral attack bars actions to overturn convictions when those actions take place in the
        wrong forum
             o court says this rule doesn’t apply – the employee is not trying to overturn his conviction, but is
                 attempting to re-raise the issue for another purpose
Abuse of process
     judge has inherent jurisdiction to prevent abuse of process
             o proceedings which are “unfair to the point that they are contrary to the interest of justice”
     in this case relitigation of criminal conviction a “blatant abuse of process” especially when all avenue of
        appeals exhausted.




                                                                                                                     14
Administrative Tribunals
    Tribunals are not uniform in the rigor with which they make their decisions – some exercise their functions in a
       very judicial way

Minott v. O’Shanter Development Co., ONCA 1999 (Admin tribunal - No Issue Estoppel)
Facts
     P, after altrication with boss gets suspended from work. He doesn’t return after his suspension and is fired.
        Applies for UI. UI board finds that he is disqualified from UI for 3 weeks because he lost his job by reason of
        his own conduct. P then brings suit for wrongful dismissal against D.
Issue
     Is P estopped from litigating issue of wrongful dismissal because of UI board ruling?
Disposition
     No issue estoppel
     Issues were not the same in the 2 proceedings – UI boards findings did not answer same questions as raised in
        wrongful dismissal action; And
     Mutuality requirement not met, although D could have participated in hearing it did not do so and is not was
        therefore not a party

Danyluk v. Ainsworth Technologies Inc., SCC 2001 (Admin Tribunal – Discretion not to Apply Issue Estoppel)
Facts
     Dany. entered a complaint under the Employment Standards Act for unpaid commissions by her employer (1
       hr. phone interview). R answered complaint but info never given to D. The ESA complaint was dismissed.
       Dany then filled action for wrongful dismissal. R claims she is estopped from raising issue of unpaid
       commission in this lis.
Issue
     D estopped from raising issue?
Disposition
     Test for issue estoppel is met:
            1. issue
            2. previous decision a binding and final judicial decision
            3. same parties
     on issue 2 – some evidence that procedural fairness violated but court still says made in judicial capacity; AND
     Dany. had opportunity to appeal ESA officer decision but did not
     Court then exercise its discretion to not to apply issue estoppel
     Court outlines 7 factors relevant to why court exercise discretion to hear the matter:
       1. Most important – potential injustice of applying issue estoppel
       2. wording of statute
       3. purpose of legislation
       4. availability of an appeal
       5. safeguards available to parties in the administrative process
       6. expertise of administrative decision maker
       7. circumstances giving rise to administrative proceedings




                                                                                                                     15
Pleadings
Purpose of pleadings:
    1. define questions to be determined between parties
    2. notify opposing party of case to be met
    3. framing issues to be determined by court
    4. providing clear record of issues to prevent relitigation
    5. advocation to opposing party and court

Choice of Originating Process
    Action or Application
           o Action – contested factual issues
           o Application – no likely disputes over factual issues

Application
    Rule 14.02 – every proceeding in court shall be by action unless statute or the rules provide otherwise.
    R. 14.05(3) – Proceedings that may be brought by application under the rules allowed:
            o (a), (b), (c) questions regarding estates
            o (d) interpreation of deeds, wills, contracts or other legal instruments
            o (e) decleration or an interest or charge on land
            o approval of arragement for purchase, sale, mortgage, lease, or variation of truest
            o g – injunction
            o g.1) remedy under Charter
            o (h) matter where dispute over material facts unlikely

       no pleadings required and no discovery
       relevant facts and supporting evidence set out in affidavits (documents which outline what a witness will
        testify to if put on the stand)

Actions
terms:
     Material Facts: all facts required to establish a cause of action or defence
     Particulars: details about the material facts alleged in the pleadings (not evidence to support facts!)
     Variance: the problem a party faces at trial when they have not fully pleaded the case they seek to rely on; the
        divergence between pleadings and proof

Sequence of Pleadings
    Statement of Claim
    Statement of Defence (and possible Counterclaim)
    Reply (at the option of the plaintiff)
           o if P wants to make a specific comment about something in the statement of defence
           o if no reply P is deemed to deny all facts in statement of defence.




                                                                                                                    16
Formal Validity Requirements

Statement of Claim
     Rule 25.06(1) pleadings must contain a consice statement of material facts but not evidence to support those
       facts
     (2) can raise any point of law in pleading, but conclusions can only be pleaded if material facts supporting
       conclusions are pleaded
           o e.g., cannot just say D violated s. 7 of negligence act. Must included material facts that establish how
                this statute was breached.
Must include
     claim of legal issues
     special damages – those easily quantifiable – medical expenses that have been incurred
     general damages – require actuarial work – non-pecuniary damages, loss of future income etc...
     what are the facts – who are the plaintiff(s) and defendant(s) and what happened?
     facts set out in a way to establish legal aspects of the claim – duty, standard, causation here
     connection of facts to legal issues
     Note the problem in the Starr pleading – inconsistency in amount claimed.

Statement of Defence
     Rule 25.07(1) – D admits every allegation of fact that it does not dispute;(2)unless party pleads having no
       knowledge of the fact
     (3) if D intends to prove different version of facts must plead its own version, not just deny P’s version
     (4)D must plead on any matter relied upon to defeat other party’s claim if it would otherwise take other party
       by surprise or raise a new issue not pleaded by other party
     (5) denial of an alleged agreement in a pleading is a denial of making the agreement; not a denial that the
       parties are actually in agreement on the legality of the issue
     (b) Damages – amount of damages deemed to be an issue unless otherwise specified

Terminology: Statement of Defence
    Admissions-Defendant required to admit allegations in Statement of Claim which are true
    Denials-Defendant denies the truth or is not prepared to admit the allegations in Statement of Claim
    No Knowledge- Defendant must plead that it has no knowledge of the a fact alleged in Statement of Claim
    Affirmative Defences- Defendant may admit a fact in the Statement of Claim but allege a further fact which if
       true would avoid the plaintiff’s claim

Reply
       Rule 25.08
       (1)-If party intends to prove a different version of facts than pleaded in Statement of Defence
       (2)-Any matter not raised in previous pleading that would take other party by surprise
       (3)-No reply required unless (1) or (2) met
       (4)-No reply delivered within required time-deemed denial of facts made in Statement of Defence




                                                                                                                   17
Consequences of Failing to Meet Formal Validity Requirements
    Insufficient Material Facts
    Request for Particulars – r. 25.10 – A party can demand particulars of an allegation in a pleading; if not
       delivered in 7 days court can order their delivery.

Copeland v. Commodore, 1985 Ont. Sup. Ct. J (minimum level of material facts)
Facts
     Wrongful dismissal case; D pleads dismissal with cause
Issue
     allegations not supported by material facts in pleadings – no particulars about the alleged incidents resulting in
       dismissal
Disposition
     rule 25.06(1) mandates minimum level of material fact disclosure
     if minimum not reached remedy is not amendment of pleadings but motion to strike out pleading as irregular
     “In my view the minimum level of disclosure of material facts in a wrongful dismissal action is...very high”
     Court strikes out proceedings
     Defendant granted leave to amend the statement to include material facts.
     Had the court found that there was a level of material facts communicated but certain details were omitted the
       court could (and usually would) order D to include those details

Whiten v. Pilot Insurance, SCC 2002 (Material Disclosure)
Facts
     Insurance company continues to allege arson and refuses to pay policy holder. Punitive damages awarded at
       trial of $1M
Issue
     did the P fail to properly plead for punitive damages?
Disposition
     punitive damages explicitly requested but supporting material facts not explicitly spelled out in pleading
     The principle is for the pleadings to provide the party with sufficient notice to consider allegations against
       them and to respond. No suprises
     Material facts for punitive damages should be pleaded with particularity; BUT
     D should have requested particulars in their pleadings – failure was not a self inflicted injustice
     here there was sufficient notice not to be taken by surprise by the claim (only quantum suprising)
     punitive damage award stands

Irrelevant or immaterial facts
      Rule 25.11 – court can strike out all or part of a pleading if it prejudices or delays fair trial, is scandalous,
        frivolous or vexation or is an abuse of process of the court
      .Note – the threshold for striking out facts is very high – if you can establish that there is some link which
        makes the fact relevant it is likely that the court will allow it
      if this threshold is not met court will likely order the statement to be amended and have the irrelevant fact
        removed




                                                                                                                           18
Variance
    difference between that which is pleaded and that which can be proven

MacDonald Construction Company v. Ross, PEISC 1980 (Variance – amend pleadings – costs!)
Facts
     D is solicitor who was asked by P to secure fire insurance. Failed to do so. D developed defence at trial that
       even if there was negligence no damages would have been caused by the negligence (policy would have been
       voided under circumstances).
Issue
    1. can D pursue argument without amendment; or precluded by pleadings?
    2. can D be allowed to amend pleadings?
Disposition
     surprise test – pleadings must contain all material facts and matters in a manner sufficiently clear and concise
       to present the nature of the claim ro defence so that the opposing party will not reasonably be taken by suprise
     here pleadings did not disclose defence
     but D’s defence could be good so court allows amendment; P allowed to reply and to rediscover witnesses
     cost consequence
            o P granted its costs from the close of its initial proceedings to resumption of trial
            o if P successful interest on these costs awarded as well

Amending Pleadings
   Rule 2.01 failure for pleading to comply with Rules an irregularity, court may grant amendments, relief to
      secure just determination of matter in dispute; or may set it aside if in the interests of justice
   Rule 5.04(2) – Names of parties – court can add, delete, substitute or correct name of party, unless it would
      result in a prejudice that could not be compensated by costs or adjournment
   Rule 26.01 – Other amendments- 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
   Rule 26.02 – Amending before the close of the pleadings –party my amend their pleadings without leave as
      long as it does not include/necessitate changes in names of parties; unless consent of all parties (b) or leave of
      court (c)

Amendment After Expiry of Limitation Period

Basarsky v. Quinlan (Special Circumstances)
Facts
     Basarsky is the administrator of an estate. Damages claimed with respect to a car accident. D admits liability,
       question is of quantum of damages. Administer tries to add a claim for relief of family members after the
       limitation period has expired.
Issues
     Should the pleadings be amended to allow the addition of a claim for relief of the family members?
Disposition
     general rule is that no amendment is allowed after the limitation period, unless there are special circumstances
     The onus rest on the party that seeks leave to amend after the limitation period has expired to show that there
       is no incompensable prejudice to the other party and that there are special circumstances
     here the court finds that because of liability being admitted(?) that there were special circumstances to meet
       this requirment special circumstance requirements

Mazzuca v. Silvercreek Pharmacy Ltd, OCA 2001 (Test for amending pleadings after limitation)
    Party seeking amendment must show both that there was no incompensable prejudice to responding
      party and that there were special circumstances




                                                                                                                      19
Substantive Validity Requirements – Motion to Strike Pleadings
    R. 25.11 – allows pleadings to be struck if they are frivolous, vexatious exct..
    R. 21.01(b) – A party can bring a motion to strike out a pleading before trial if it discloses no reasonable cause
       of action

Dawson v. Rexcraft, OCA 1998 (20.01(b) – plain and obvious test)
    It must be plain and obvious that the plaintiff, assuming all the pleaded allegations can be proven,
      cannot succeed because the pleadings do not disclose sufficient basis for a cause of action.

What about Novel Claims?
Jane Doe v. Metropolitan Toronto, 1990 On. Div. Ct (20.01(b) – Novel Claims)
Facts
     Rape victim alleges Police breached a duty to warn her of the risks she faced because of a rapist targeting
       victims in her neighbourhood and living conditions.
Issue
     Do P’s pleadings disclose a reasonable cause of action?
Disposition
     Principles regarding statements of claims
    1. must disclose cause of action founded in law
    2. in this determination material facts pleaded assumed to be proved
    3. if there is some chance of success action may proceed
    4. statement of clam must be read as generously as possible
     Court allows here 3 claims to move forward
            o claim of negligence for breach of duty of care owed to her
            o Charter s. 15 – discrimination based on gender
            o Charter s. 7 – infringement of security of person
Joining Claims and Parties
     P determines composition of a proceeding (parties)
     but Court has control - emphasis on judicial economy

Compulsory Joinder of Parties
     R. 5.03(1) – 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.

Joining Parties: Plaintiffs
       r. 5.02(1) – 2 or more parties represented by same solicitor or record can join as P’s or applicants if:
       their claims arise from the same transactions/occurrences
       common question fact/law may arise in proceedings
       joining promotes convenient admin. of justice

Joining Parties: Defendants
     r. 5.02(2): 2 or more D/R may be joined
            o (a) claims asserted against them arising from same transaction/occurrence
            o common Q of law may arise in proceedings
            o doubt as to who P/A is entitled to receive relief from

       But recall 5.05 – if joinder of multiple claims/parties to same proceeding creates undue complication, delay or
        prejudices party court can:
            o sever proceedings
            o require claim asserted in another proceeding (if at all)
            o order costs compensation for parties joined with no interest
            o stay proceeding
            o other discretionary orders

                                                                                                                     20
Addition of Claims and Parties by Defendants

Counterclaim
   r. 27.01(1) D may bring a bring any right or claim against P by counterclaim in main action
   r.27.01(2) D can also join any other person as a defendant to the counter claim; whether or not they
      are party to the main action.
          o but claim must be against P as well
          o does not necessarily have to relate to the main action brought by P (unless adding parties – Lid)
   r. 27.02 – counterclaim must be included in same document as statement of defence and must be title
      statement of defence and counterclaim

Lid Brokerage & Realty C. v. Budd, Sask QB 1992
Facts
     D seeks to counterclaim against P and 7 additional parties alleged to have injured his business. One of these
       additional parties wants to join claim as
Issue
     Is the counterclaim as stalling tactic?
Disposition
     Here leave should be granted based on following principles:
    1. leave should be granted for counterclaim unless its established that there are extenuating circumstances that
       make it inequitable (like limitation period barring separate action) or that the counterclaim would unduly delay
       complicate the main action in a way that cannot be adequately compensated (adjournment, costs)
    2. If counterclaim adds ne parties to action, consideration should be given as to whether subject matter of
       counterclaim is related to subject matter of main action

Crossclaims
    cross -claims and third party claims the claim has to direct back to the main, initial issue
    Cross claim allows a claim from one defendant against another defendant on a matter that relates to the main
       claim/action

28.01 (1) A defendant may crossclaim against a co-defendant who,
   (a) is or may be liable to the defendant for all or part of the plaintiff’s claim;
   (b) is or may be liable to the defendant for an independent claim for damages or other relief arising out of,
        (i) a transaction or occurrence or series of transactions or occurrences involved in the main action, or
        (ii) a related transaction or occurrence or series of transactions or occurrences; or
   (c) should be bound by the determination of an issue arising between the plaintiff and the defendant.
    (2) A defendant who claims contribution from a co-defendant under the Negligence Act shall do so by way of
   crossclaim.

STATEMENT OF DEFENCE AND CROSSCLAIM
28.02 A crossclaim (Form 28A) shall be included in the same document as the statement of defence and the document
   shall be entitled a statement of defence and crossclaim.




                                                                                                                    21
Third Party Claims
       29.01 allows D can commence a claim against a 3rd party
       29.05 lets 3rd party defend against P’s claim against D.

29.01 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 damages or other relief arising out of,
        (i) a transaction or occurrence or series of transactions or occurrences involved in the main action, or
        (ii) a related transaction or occurrence or series of transactions or occurrences; or
   (c) sholud be bound by the determination of an issue arising between the plaintiff and the defendant.
    Allows defendant to bring in a 3rd party who is related to the main action when the defendant does not want to
       bring a claim against the original plaintiff

 29.05 (1) Where appropriate, the third party may defend against the plaintiff’s claim against the defendant by
  delivering a statement of defence in the main action, in which the third party may raise any defence open to the
  defendant.

Daniel Industries v. Alta Energy, Atla Ca 1989
Facts
   P buys valves from D, a manufacturer, and has them installed by a third party. They are faulty.
Disposition
   rule: 3rd party claim cannot be brought when its based solely on facts that, if proved, give a
      complete defence to the main action
   here trial or 3rd party claim need not produce all or nothing situation, may have partial liability for D
      and 3rd party.

Carswell v. Traders General Insurance, 1987 Ont. Dist. Ct.
Facts
      Plaintiff suffers flooding damages as a result of blasting activity on an adjacent property. P is suing their
       insurer. Insurer seeks to bring 3rd party claim pursuant to rule 29.01 against town of Bracebridge claiming its
       right to bring an action in the name of the insured. Town argues since insurer has not paid out the claim they
       have no right of subrogation nor to bring 3rd party claim.
Disposition
    primary consideration is to see all parites involved in same factual situation has rights determined
       without a multiplicity of proceedings
    allowed

Hannah v. Canadian General Insurance Co., NSSC 1989
    P suffers damages caused by blasting on an adjacent property. P sues the insurer. Defendant insurer brings a
      motion to require P to add the blasting company as a defendant.
    Court refuses – P was severely prejudiced because of D waiting until 4 days before the trial to bring this
      motion. P has right to choose defendants. D should have brought a 3rd party claim much earlier.




                                                                                                                         22
Consolidation or Hearing Together
    Courts of Justice Act, s. 138 – As far as possible, multiplicity of legal proceedings shall be avoided.

6.01 (1) Where two or more proceedings are pending in the court and it appears to the court that,
   (a) they have a question of law or fact in common;
   (b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or
   occurrences; or
   (c) for any other reason an order ought to be made under this rule,
        the court may order that,
   (d) the proceedings be consolidated, or heard at the same time or one immediately after the other; or
   (e) any of the proceedings be,
        (i) stayed until after the determination of any other of them, or
        (ii) asserted by way of counterclaim in any other of them.
   (2) In the order, the court may give such directions as are just to avoid unnecessary costs or delay and, for that
   purpose, the court may dispense with service of a notice of listing for trial and abridge the time for placing an action
   on the trial list.

       Consolidation – if 2 actions are consolidated their separate identities disappear and they become one action (1
        court file number, set of pleadings etc)
       Hearing Together – actions retain separate identity but allows for reference to same evidence with respect to
        the matter (actions proceed together, or one after the other)

Bain v. Schudel, OHC 1988
Facts
    P involved in 2 MV accidents. Had a claim against D and insurer from first action and a second claim against
        another D.
Disposition
    injuries in 2nd action superimposed on those from 1st
    cases should be heard together – expert testimony regarding injuries only needs to be heard once

Rae-Dawn Construction Ltd. V. Edmonton, Alta CA 1992
Facts
    Several actions relating to a single construction failure. Additionally there were a separate set of actions
       against common construction insurers. The proceedings against the failure were proceeding well but the
       proceedings against the insurers were not
Disposition
    desirable to avoid duplication of proceedings; but this should not be done if it unfairly retards litigation
    some overlap in issues between insurance and construction suits but too long a delay to wait for insurance suits
       and construction much further along
    order to make construction suits wait until after insurance suits tried dismissed
.




                                                                                                                        23
Intervention
LEAVE TO INTERVENE AS ADDED PARTY
13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person
   claims,
   (a) an interest in the subject matter of the proceeding;
   (b) that the person may be adversely affected by a judgment in the proceeding; or
   (c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact
   in common with one or more of the questions in issue in the proceeding.
   (2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the
   determination of the rights of the parties to the proceeding and the court may add the person as a party to the
   proceeding and may make such order as is just.

       sub 2 retains courts discretion not to allow a party to be added should it be concerned that this addition would
        somehow prejudice the rights of the party/parties

LEAVE TO INTERVENE AS FRIEND OF THE COURT
13.02 Any person may, with leave of a judge or at the invitation of the presiding judge or master, and without
   becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the
   court by way of argument.

Re Schofield v. Minister of Consumer Relations (Interest in subject matter)
Facts
       The court must determine how no fault insurance benefits will be applied. A lawyer for 2 clients, both of
          whose cases turn on how no fault benefits will be applied. The lawyer seeks for intervener status in this
          case. Lawyer argues that he has a direct interest on behalf of his clients in relation to how this matter is
          decided.
Disposition
       the fact that the decision of a lis may be applied subsequently by another Court as a precedent in resolving a
          lis between other parties is not a sufficient interest to justify a grant o standing to one of those other parties
       “the applicant must have an actual interest in the lis [matter] between parties”

Incredible Electronics v. Canada (AG),OCA 2002 (Test For Granting Intervener Status to Public Interest Group)
Facts
     Charter case – challenge to certain provision of the radio communications act under s. 2.
     CICI applies for intervener status as a Party pusuant to rule 13.01trying to gain intervener status representing
        Spanish speaking radio listeners who might be affected by the challenged legislation
Disposition
     Court does not challenge good motive of intervener; but does believe that the CICI has misrepresented its
        scope
     Says it represents thousands of Spanish speakers but is up of 3 people, it has no board or directors, it has no
        members.
     Test: 3 criteria, at least one of which must be met to receive intervener status:
            1. Intervener has real and substantial identifiable interest
            2. Intervener has an important perspective distinct from immediate parties
            3. Intervener is a well recognized group with special expertise and a broad and identifiable membership
                base
     Application of these criteria
            1. CICI has no greater interest in the proceeding then the general public
            2. There are already materials within the record that look at the demand for services for linguistic and
                cultural minorities – CICI is only raising a narrow aspect of what is already being covered in the
                record – no additional perspective. CICI argues that it wants to bring additional arguments (s. 15), but
                court determines that bringing these new arguments would make the proceedings unwieldy – they can
                litigate it indepedently
            3. Tiny, unrecognized group
                                                                                                                          24
Re Adler, O. Gen. Div 1992 (Flexibility and Customization for Granting Intervener Status)
Facts
     Applicants seek declaration that non-funding of Jewish and independent Christian schools unconstitutional.
       Metropolitan Toronto School Board, Canadian Civil Liberties Association, Multi-Faith Coalition for Equity in
       ON, Ontario Federation of Independent Schools and a minister seek intervene in the case.
Disposition
     Customized approach – “terms” of intervention
     MTSB - the Court feels that MTSB may have additional evidence to submit to the record. Added as Party
            o But its intervention may be limited to issues relevant to it, and to the discussion of s. 1.
            o Court leaves some discretion to trial judge to determine this scope
     Canadian Civil Liberties Association – represent much of the same points as the applicant but also brings
       additional perspective – added as friend to the Court
     Ontario Multi-Faith Coalition for Equity in Education - not allowed – wanted to bring new grounds forward –
       court concerned that proceedings are already overly complex
     Ontario Federation of Independent Schools – wanted to bring new grounds, but also had additional information
       – court grants leave as a friend to the court only
     Individual minister – not granted leave to intervene – no greater interest beyond that of a ordinary member of
       the public




                                                                                                                 25
26
Class Proceedings

Underlying Policy
    Access to Justice
    Judicial economy
    Behaviour Modification
           o prevents behaviour that inflicts small amounts of damages on a large group of people
    Note that these underlying goals are directly incorporated in test for certification

Rule 12 – Mechanics of Class Proceedings
   Plaintiff’s class proceeding
        o (1) One or more members of a class of persons may commence a proceeding in the court on behalf of the
            members of the class.
        o does not dictate size of the class

   Motion for certification
       o (2) A person who commences a proceeding under subsection (1) shall make a motion to a judge of the
           court for an order certifying the proceeding as a class proceeding and appointing the person representative
           plaintiff.
       o Note also - ss. 3,4 – Possibility of defendant class proceedings (not common)
       o when you commence a class proceeding you need certification of the class and appointment of a
           representative plaintive

   Rules of court
       o 35. The rules of court apply to class proceedings.
       o R. 12 (outlines details for “mechanics” of class action proceedings)
       o note there is a class proceedings fund – however its success has been limited

Criteria for Certification

. 5(1) – Class Proceedings Act
      a. The pleadings or notice of application disclose a cause of action;
             o test to allow motion to strike – is it plain and obvious that the plaintiffs action will not succeed?
             o )
      b. There is an identifiable class of two or more persons that would be represented by the representative
         plaintiff or defendant;
             o National class – need to ensure that there is a real and substantial connection between the claimant and
                  Ontario so an out of province plaintiff can bring the matter to the Ontario courts.
      c. The claims or defences of the class members raise common issues;
             o Common issues are defined in s.1 of the Act as:
                       a. common but not necessarily identical issues of fact; or
                       b. common but not necessarily identical issues of law that arise from common but not necessarily
                           identical issues of fact.
      d. A class proceeding would be the preferable procedure for the resolution of common issues; and
             o see list of underlying goals – access to justice, judicial economy, behaviour modification (deterrence)
      e. There is a representative of the class who:
             o would fairly and adequately represent the interests of 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; and
             o does not have, on the common issues for the class, an interest in conflict with the interests of other
                  class members.




                                                                                                                    27
The Trilogy
Western Canadian Shopping Centres v. Dutton
Facts: Plaintiffs wanted to immigrate to Canada so they invested through a variety of mechanisms in a Canadian
business venture – business fails and P bring an action against the failed company for breach of fiduciary duty.
Disposition
     court considers a number of legislative schemes in Can. for certifying class proceedings
     lays down 4 general factors for certification:
        1. class must be capable of clear def.
        2. common issues of fact/law
        3. success for 1 class member means success for all
        4. proposed representative adequately represents all members of class.
Notes
    low certification threshold, restricted in following cases

Hollick v. Toronto, SCC 2001 (No certification – Fails Preferability Req.)
Facts
     Would be Plaintiff wants to represent ~150 people who live near the Keele Valley Landfill, which is owned
        and operated by the City. MOE had required that the city establish and maintained a small claims trust fund to
        cover individual claims of up to $5000 to offset claims dealing with “offsight impact”. Proposed class action
        alleges damages for extreme physical and noise pollution
Disposition
     Requirements at 5(1) of the Act
Part 1 of the Certification
     Is there a viable cause of action here (plain and obvious claim will fail)?
     Note that at the certification stage the court is not supposed to consider the merits of the claim beyond it being
        viable (does not look at evidence)
Part 2 of the Certification
             o identifiable class - objective criteria to define class; no need to name every member of class
             o is the plaintiff an appropriate representative of the class
             o claim raises common issues
                       i.e., duty of care
                       establishing that pollution
                       “an issue is common only if it... , an issue will not be common in the required sense unless it is
                          a...substantial ingredient in each class members claim”
                       there must be a rational connection between the class as it is defined and the common issues as
                          alleged
             o class proceeding preferable procedure
                       judicial economy
                       access to justice
                       behaviour modification
                       Court says that looking at preferability requires a consideration of the common issue as a
                          whole
Application
     Viable cause of ation – unlawful emission of methane, SO2, Vinyl Chloride and physical pollution
     Class determined based on geographical proximity of residents to landfill – requirement
     common issue – emission of pollutants – essential to all claimants and is rationally connected to class
             o evidenced by fairly large complaints record from people in the neighbourhood
     Prerability - NO
             o Judicial economy-common issue is not significant enough in the individual claims to meet the judicial
                 economy branch of the test ; harm not evenly spread across geographical area! small claims could have
                 been paid for out of the fund, and any larger claim could be individually litigated
             o Access to J – fund available; claims over $50G could be litigated
             o Behaviour mod. – not issue because of alternate ways to bring claims


                                                                                                                       28
Rumley v. British Columbia, SCC 2001
Facts
    The prospective Plaintiffs are trying to bring a class proceeding for compensatory and punitive damages for
       emotional, physical and sexual abuse suffered at a residential school for disabled children. An inquiry had
       been carried out in relation to this issue. In response to this inquiry the government had set up a compensatory
       fund with a limit of ~$60,000/claimant.
Disposition
    all branches of test conceded by D except common issue and preferability
    Common Issue
            o D argues that standard of care owed varied over time and is thus individual, similarly causation issue
                individual
            o court argues that this common issue doesn’t turn on this issue – and governing legislation allows for
                creation of subclasses
            o central issues were common issues – whether a duty was owed by the school and was the duty
                breached
    Preferability
            o overall its a preferable procedure
            o compensation program offered by government did not provide adequate compensation for the action
            o communication barriers faced by the plaintiffs favoured a common process
            o note dealt mostly with access to justice and judicial economy

After certification
     Notice
            o once proceeding have been certified you have to give notice to the members of the class. The method
                 in which notice will be given must be part of the application for certification
            o In some cases D is required to give notice (e.g., if they have special resources, like a mailing list, to
                 notify the class)
     Opt out
            o members must actively opt –out
            o if they do so, they don’t receive any of the damages, but they cannot individual litigate at a later time
                 (would be barred by res judicata)
            o disposition in class action can be used in the same way as any case would be used in further individual
                 litigation – persuasive or binding with deference to stare decisis
     Discovery
            o normally limited to representative plaintiff
            o court has discretion on motion by plaintiff to provide for other parties to be discovered
     Conduct of Class Proceedings
            o common issues dealt with first
            o then individual issues – court has a lot of discretion in determining how those issues will proceed
     Settlement
            o settlement must be approved by the court in order to protect the absent members of the class
            o that settlement is binding on anyone who has not opted out




                                                                                                                     29
30
Case Management
PURPOSE
   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.
    currently rule 77 applies only to Toronto, Ottawa and Windsor
    case mgmt applies to all civil cases in those jurisdictions except for family matters, construction lien,
       bankruptcy and insolvency matters
    In july 2001 all eligible cases that started in Toronto were case managed (between 1997 - 2001 random
       selection of cases)

Structure of Case Management
Choice of Track
77.06
   (5) On filing Form 14F (Information for court use), the plaintiff shall choose the fast track or the standard track for
   the proceeding.
             fast track – time frames for getting ‘pieces' of the proceedings faster than the standard track (150 days
                – 5 months)
             Standard track – 240 days to get things to point of a settlement conference (~8 months)

   (6) In choosing a track, the plaintiff shall have regard to all relevant considerations, including,
        (a) the complexity of the issues of fact or law;
        (b) the likely expense to the parties;
        (c) the importance to the public of the issues of fact or law
        (d) the number of parties or prospective parties;
        (e) the amount of intervention by the case management judge that the proceeding is likely to require; and
        (f) the time required for proper discovery, if applicable, and preparation for trial or hearing.

Structure of Case Management
Dismissal by Registrar (Administrative Dismissal – r. 77.08)
     If no defence has been filed within 180 after the initial application has been filed and the plaintiff does not seek
        default judgment, then the matter is dismissed

Assignment to Case Management Judge/Team – r. 77.09
    in the past there might have been different judges at different parts of the proceedings (on judge for one motion
       for example)
    now 1 judge/team throughout process

Timetables – r. 77.10

CASE MANAGEMENT POWERS
Powers Generally
  77.11 (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;
       (c)    adjourn a case conference;
       (d)    set aside an order made by the registrar; and
       (e)    make orders, impose terms, give directions and award costs as necessary to carry out the purpose of
              this Rule.




                                                                                                                        31
MOTIONS (R. 77.12)
 Increasingly Streamlined
      o some motions can be brought without supporting materials (affidavit)
      o some motions an be brought via telephone or fax

CASE CONFERENCE
How Convened
  77.13 (1) A case management judge or a case management master may convene a case conference at any time, on
  his or her own initiative or at a party’s request.

CASE CONFERENCE
Matters to be Dealt With
77.13 (3) At the conference, a case management judgeor case management master may,
       a) identify the issues and note those that are contested and those that are not;
       (b) explore methods to resolve the contested issues;
       (c) if possible, secure the parties’ agreement on a specific schedule of events in the proceeding;
       (d) create a timetable for the proceeding; and
       (e) review and, if necessary, amend an existing timetable.

SETTLEMENT CONFERENCES (r. 77.14)
    occurs only after discovery has occurred
    set at a fixed time
    judge meets with lawyers and possibly clients
    settlement conferences tend to be evaluative (as opposed to facilitative)

TRIAL MANAGEMENT CONFERENCE (r. 77.15)

Mandatory Mediation
   Theory that consensual outcomes are more likely to be enforced
   private and confidential

PURPOSE
  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.

NATURE OF MEDIATION
  24.1.02 In mediation, a neutral third party facilitates communication among the parties to a dispute, to assist them
  in reaching a mutually acceptable resolution.

Key Aspects of R. 24.1:
   Made mediation prior to trial mandatory
   Required mediation to occur within 90 days following the filing of first defence (unless otherwise ordered by
     court)
   very little has happened within 90 days of filing of first defence
   thus asks people to settle prior to discovery
   thinking being that less entrenched parties are in litigation the greater chance of a successful outcome from
     mediation




                                                                                                                     32
EXEMPTION FROM MEDIATION
  24.1.05 The court may make an order on a party’s motion exempting the action from this Rule.

O.(G.) v. H. (C.D.) (Interpretation of R. 24.1.05)
Facts
    The defendant is seeking an exemption from mandatory mediation under rule 24.1.05. D and P had been
        engaged. P alleged conversion of corporate funds and wrongful removal of furniture. D alleges P engaged in
        physical and psychological abuse – counterclaimed D sexually and indecently abused. D claimed that
        mediation would be psychologically damaging to P and P agreed.
Disposition
    Courts acknowledges that some other jurisdictions have exempted family law cases from civil mandatory
        mediation programs; but
    court does not grant exemption
    there are mediators trained to deal with this type of situation and both parties don’t have to be present in the
        same room (shuttle mediation or caucusing)
Notes
    exemptions have been applied in some other situations:
             o when the parties had tried mediation before, unsuccessfully
             o when there is a matter of public interest that should not be decided via ADR

Confidentiality of Mediation
   o Rule 24.1.14 of the Rules of Civil Procedure states that all communications at a mediation session and the
       mediator’s notes and records are deemed to be without prejudice settlement discussions.

Rudd v. Trossacs, Ont. S.C. J (Confidentiality, Wigmor Test)
Facts
    Parties to a mediation entered into a confidentiality agreement pertaining to the mediation. Parties entered into
        minutes of settlement – which generally get converted into a court order. Dispute as to whether the admission
        of one of the parties’ name in the minutes of settlement was inadvertent or intentional.
Disposition
    Wigmor test for confidentiality:
        1. the communication must originate in a confidence that it will not be disclosed
        2. the element of confidentiality must be essential to the nature of the relationship in which the
            communications arose
        3. the relationship must be one that the community thought to be sedulously fostered
        4. the injury caused to the relationship by disclosure of the communications must be greater then the benefit
            to litigation
    Application
        1. parties entered into an agreement that stated that the mediation would be confidential and that the
            mediator’s notes could not be subpoenaed
        2. mediator’s confidentiality must be protected to ensure the integrity of the relationship between mediators,
            and parties to a mediation – hope for the parties to reach have successful mediation depends on it
            mediation process is mandatory; clearly a significant public interest in protecting confidentiality in the
            mediation process – public policy
        3. intention of the parties key in this stage of the analysis. There must be some very compelling public
            interest to overcome the hurdle of the agreed upon confidentiality in the mediation process. Mediator may
            lose his/her appearance of neutrality. OCA thinks that it is unlikely that questions to mediator could be
            narrow enough to only disclose who was intended to be in the final document – inevitable expansion into
            other privileged information. Therefore injury quite severe – not outweighed by benefits to litigation




                                                                                                                        33
Tibbits v. York Central Hospital (Applying For Case mgmt)
Court will consider streaming a case into case mgmt if:
         a) Case is complex and will be helped by case mght;
         b) age of case, steps taken, and how difficulties would be helped by case mgm
         c) The history of interlocutory proceedings;
         d) Extraordinary production or discovery issues that may benefit from case management and factors that have
            impeded successful discovery planning to date;
         e) The parties and counsel involved, any related or parallel proceedings, whether or not those proceedings
            should be managed or tried together and where the related proceedings are currently located;
         f) The amount and types of intervention that may be required and the timelines that should apply to the action;
         g) The appropriate nature and timing of ADR options; and,
         h) Whether or not the parties are in agreement concerning any of the above.

Even if these factors support case mgmt – under Rule 77 only appropriate if
        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;
        b) Use of the expanded powers and informal procedures in Rule 77 may be necessary or of benefit;
        c)Early mandatory mediation on the Rule 24.1 model will be useful;
        d) There is a need for administrative supervision of various deadlines by the registrar and Rule 48 alone will be
            inadequate;
        e) It appears ongoing active management by a case management master will be neces-sary; or,
        f) It appears a case management master should undertake settlement conferences or trial management
            conferences contemplated by Rule 77.

New Civil Case Management for Toronto (Pilot Project)
PURPOSE
  78.02 The purpose of this Rule is to establish a pilot project under which the parties will have the greater
  responsibility for managing actions commenced in the City of Toronto and moving them to trial or other resolution,
  and the court will provide partial or full case management for such actions only where a need for the court’s
  intervention is demonstrated.
    Eliminates assumption that every case will be streamlined into rule 77
    case management only to the extent that it is required; still have case conferences
    still have mediation being required BUT timelines are much more flexible
           o mediation only required within 90 days of setting the matter down for trial
           o after discovery
    Note rule 77 provides a mechanism for having a status hearing if the matter hasn’t been set down for trial 2
       years following the initial motions
       rule 78 in effect until May of this year
       How is the Need for Court Intervention demonstrated?
           o Complex factual or legal issues
           o Litigation is a matter of public interest
           o Numerous parties or numerous related proceedings
           o Chronic and substantial obstruction to the timely disposition of the action (e.g., one party stonewalling)




                                                                                                                      34
Settlement
     Rule 49 – Procedural structure to encourage and facilitate settlements
     Not limited to monetary claims; applies to actions and applications

Effect of Rule 49:
     ...to impose serious adverse costs consequences on any party who refuses to accept what is later determined by
        the court to have been a reasonable offer by the opposite party
     imposition of cost justified because refusal of reasonable offer forced trial and subsequent expense

Acceptance of Offer
Generally
   49.07 (1) An offer to settle may be accepted by serving an acceptance of offer (Form 49C) on the party who made
  the offer, at any time before it is withdrawn or the court disposes of the claim in respect of which it is made.
   (2) Where a party to whom an offer to settle is made rejects the offer or responds with a counter-offer that is not
  accepted, the party may thereafter accept the original offer to settle, unless it has been withdrawn or the court has
  disposed of the claim in respect of which it was made.
    offer must be written to settle any one of the claims in a proceeding
    oral offers do not fall within rule 49.07
    once given a written offer a party may accept or reject it
    acceptance governed by 49.07
    at common law – when an offer is made and you reject it or respond with a counter offer that isn’t accepted,
       the original offer dies
    under 49.07 if you reject, or respond with a rejected counter-offer you can still accept initial offer at a later date
       (as long as it hasn’t been withdrawn or if the court has disposed with the matter)

Failure to Comply with Accepted Offer
  49.09 Where a party to an accepted offer to settle fails to comply with the terms of the offer, the other party may,
    (a) make a motion to a judge for judgment in the terms of the accepted offer, and the judge may grant judgment
  accordingly; or
   (b) continue the proceeding as if there had been no accepted offer to settle.
            Accepting party can seek a judgment to enforce accepted offer; or
            continue proceedings as if there had been no accepted offer

Costs Consequences of Failure to Accept
Plaintiff’s Offer
 49.10 (1) Where an offer to settle,
    (a) is made by a plaintiff at least seven days before the commencement of the hearing;
    (b) is not withdrawn and does not expire before the commencement of the hearing; and
   (c) is not accepted by the defendant,
   and the plaintiff obtains a judgment as favourable as or more favourable than the terms of the offer to settle, the
   plaintiff is entitled to partial indemnity costs to the date the offer to settle was served and substantial indemnity
   costs from that date, unless the court orders otherwise.

Defendant’s Offer
  (2) Where an offer to settle,
    (a) is made by a defendant at least seven days before the commencement of the hearing;
    (b) is not withdrawn and does not expire before the commencement of the hearing; and
    (c) is not accepted by the plaintiff,
   and the plaintiff obtains a judgment as favourable as or less favourable than the terms of the offer to settle, the
   plaintiff is entitled to partial indemnity costs to the date the offer was served and the defendant is entitled to partial
   indemnity costs from that date, unless the court orders otherwise.



                                                                                                                            35
Requirements for an offer:
    must be in writing
    must be made 7 days before the commencement of the hearing
    must be kept open up to the commencement of the hearing

Cost Consequences for the Defendant
    If D refuses offer to settle and plaintiff succeeds and does better than settlement (therefore reasonable
       settlement offer)
    cost consequences for a successful plaintiff are standard up until the point until the settlement offer was made
       (partial indemnity)
    after that point the plaintiff is entitled to substantial indemnity costs (unless the court orders otherwise)

Cost Consequences for the Plaintiff
    P fails to accept compliant offer and receives a judgment that is the same, or less then the offer
    up until the offer was made P was still successful to some degree; therefore costs are those awarded to
       successful plaintiff (costs against the defendant on a partial indemnity basis)
    after the offer was made costs are awarded to the Defendant on a partial indemnity basis

Niagara Structural Steele (Court has discretion under Rule 49)
Disposition
     provisions of r. 49.10 must be applied unless there is a compelling reason not to do so.
     complexity of case not a matter not something that should allow the court to stray from the rule
     neither should good faith on behalf of the party
     Settlement Privilege under Rule 49
     court overturns lower court decision and awards costs in accordance with r. 49.10

Settlement offers do not prejudice future proceedings
EFFECT OF OFFER
49.05 An offer to settle shall be deemed to be an offer of compromise made without prejudice.

DISCLOSURE OF OFFER TO COURT
49.06 (1) No statement of the fact that an offer to settle has been made shall be contained in any pleading.

   (2) Where an offer to settle is not accepted, no communication respecting the offer shall be made to the court at the
   hearing of the proceeding until all questions of liability and the relief to be granted, other than costs, have been
   determined.
   (3) An offer to settle shall not be filed until all questions of liability and the relief to be granted in the proceeding,
   other than costs, have been determined.
     Cannot disclose any information regarding the settlement offer to the court can occur until everything but costs
        has been agreed upon

Settlement Privilege – Generally
     Conditions for recognition of settlement privilege (J. Sopinka):
            o Litigious dispute in existence or contemplated
            o Communication made with intention that it would not be disclosed to court should negotiations fail
            o Purpose of communication = intent to effect settlement
     On lawyer’s letters you often see ‘without prejudice’
            o these words on there own are not dispositive or privilege – all previously listed requirements must be
                met




                                                                                                                          36
Settlement Privilege
Heritage Duty Free Shop Inc. v. Canada (AG) [CB 608]
Facts
     P operates duty free shop on land leased by the Crown. Land had been surrendered to the Crown by a Native
       band. Band brings and action seeking return of the land. Crown and Band enter into settlement negotiations. P
       brings and action against the Crown for breach of fiduciary duty. P alleges Crown had duty to take interests of
       P into account in negotiation process. P says he needs disclosure of details of settlement details in order to
       substantiate claim of breach of fiduciary duty. P brings a motion seeking disclosure of the settlement
       negotiations.
Issue
     Exception to settlement privilege?
Disposition
     settlement privilege established in accordance with relevant rules of civil procedure
     policy to encourage settlement
     allegation of breach of fiduciary duty not substantial enough to set aside the rules

Discovery and Privilege
Purposes of Discovery:
    1. To enable the examining party to know the case that it has to meet;
    2. To procure admissions to enable one to dispense with formal proof;
    3. To procure admissions that may destroy or impair an opponent’s case;
             consider a submission at trial that differed from the discovery process – very valuable upon cross-
               examination
    4. To facilitate settlement, pre-trial procedure and trials;
    5. To eliminate or narrow issues; and,
    6. To avoid surprise at trial.

Lawyer’s Duties re: Discovery
From Rule 4.01 of the Rules of Professional Conduct:
1. The lawyer shall explain to her client:
   a. the necessity of making full disclosure of all documents relating to any matter in issue, and
   b. the duty to answer, to the best of his or her knowledge, information and belief, any proper question relating to
       any issue in the action or made discoverable by the rules.
2. The lawyer shall assist her client in fulfilling his or her obligations to make full disclosure; and
       o e.g. informing the client of what needs to be disclosed
3. The lawyer shall not make frivolous requests for the production of documents or make frivolous demands for
   information at the examination for discovery
       o there have been some concerns that the discovery process is susceptible to being bogged down

Discovery of Documents R. 30

Rule 30 imposes two distinct disclosure obligations:
1. A party is required to disclose the existence of all documents that are relevant to the action; and,
2. A party is required to produce for inspection by all adverse parties, all such relevant documents over which the
     party does not claim privilege.




                                                                                                                      37
The Disclosure Obligation:
Rule 30.02(1) details the disclosure obligation:
    Each party must swear and serve an affidavit of documents that includes “every document relating to any
       matter in issue in an action that is or has been in the possession, control or power of a party to the action..”
    example affidavit of documents
           o normally divided into 3 schedules (lists
           o Schedule A – documents in your possession that you have no objection in producing
           o Schedule B – documents in your possession that you object to producing because of privilege
           o Schedule C – the documents that you formally had but are no longer in your possession or control and
               indication of how you lost possession and control

The Production Obligation:
Rule 30.02(2) details the production obligation:
    Each party must produce for inspection “every 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 of that
       document”
    2 basic forms of privilege in the context of most proceedings:
       1. solicitor-client privilege
       2. documents generated in contemplation of litigation

The Disclosure Obligation:
Grossman v. Toronto General Hospital, Ont. HC 1983 (Sufficient disclosure to allow claim of privilege)
Facts
    P is patient at hospital who disappears.12 days after his disappearance he was found in an air duct. Hospital
       issued general denial of events including events. Hospital took position that they had only one document they
       are willing to reveal – medical records. Claim solicitor-client privilege over any document created after hiring
       of council.
Disposition
    Rule: “a party must candidly describe in an affidavit on production not only documents for which no
       privilege is claimed but also those for which a privilege is claimed”
    boiler-plate claims of privilege not allowed; discovery open to serious abuse
    party giving discovery under duty to make an appropriate search of all relevant documents
    lawyer must give clients information about all the relevant documents that must be disclose
    “The integrity of the system depends upon the willingness of lawyers to require full and fair discovery of their
       clients.”




                                                                                                                     38
The Production Obligation
Peter Kiewit Sons v. BC Hydro (CB 709)
Facts
     P construction company hired by BC Hydro to undertake a large project. P sues based on a number of
        allegations including that D did not provide the steel that D was required to under the contract. P alleged steel
        had been diverted to other BC hydro projects. D has already made 30,000 documents for inspection. P wants
        more – inspect all other documents relating to any other projects by BC Hydro at that were occurring at the
        same time. Potentially P is looking to go through hundreds of thousands of documents with an eye to
        determine if steel was diverted
Disposition
     P relies on broad precedent saying any document relating to the matter was open to production
     Court does not adhere to the authority in this situation:
     “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”
     Court looks at some other methods (trying to encourage the parties to develop their own compromise):
            o P can undertake search but must cover costs regardless of outcome
            o have a trial of a particular issue; which once resolved might help to determine if you need the
                 discovery of so many documents
            o if no agreement can be made by the parties the court itself would order a greatly reduced scope of
                 discover

Rule 30: Documents and Power
What is a ‘document’ according to Rule 30?
    30.01(1)(a): a document includes: a sound recording, videotape, film, photograph, chart, graph, map,
        plan, survey, book of account and information stored by means of any device (i.e.. computer disk and
        email communications are captured)

What is meant by the obligation to disclose/produce documents in the possession, control or POWER of a party?
   30.01(1)(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.

The Affidavit of Documents
    Within 10 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 that party’s knowledge, information and belief all documents
       relating to any matters in issue in the action that are or have been in the party’s possession, control or
       power;
    the client’s lawyer must certify on the affidavit that she has explained to the deponent:
       1. the necessity of making a full disclosure of all documents relating to any matter in issue in the action, and,
       2. what kinds of documents are likely to be relevant to the allegations made in the pleadings (rule 30.03(4).

The Affidavit of Documents: Form and Content
Rule 30.03(2): the affidavit is broken down into three ‘schedules’:
Schedule A: lists all documents relating to any matter in issue in the action that are in the party’s possession, control or
     power and that the party does not object to producing.
Schedule B: lists all documents relating to any matter in issue in the action that are or were in the party’s possession,
     control or power and for which the party claims privilege, and the grounds for the claim.
Schedule C: lists all documents that were formerly in the party’s possession, control or power, but are no longer in the
     party’s possession, control or power, together with a statement of when and how the party lost possession,
     control of or power over them and their present location.




                                                                                                                         39
Affidavit of Documents: Schedule B Claims of Privilege
Rule 30.03(2): Schedule B documents must include the grounds for the claim of privilege
     Also, 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 face of the affidavit” (Grossman v.
        Toronto General Hospital.)

Affidavit of Documents: Inspection of Documents
Rule 30.04 - provides that the party delivering the affidavit must produce the documents in Schedule A for inspection
     by the other parties.
    Requries:
     available at examination for discovery;
     a copy available – at there own costs. Usually one side provides the other with a set of documents and bills
        them at their own costs

Incomplete Affidavit or Improper Claim of Privilege
Rule 30.06 governs the procedure if an affidavit is incomplete or if privilege in Schedule B has been improperly
       claimed
If satisfied of this situation, court may:
     a. order cross examination on the affidavit of documents;
     b. order the service of a “further and better” affidavit of documents;
     c. order the disclosure of or the production for inspection of the ‘missing’ document(s), if it is not privileged; or,
     d. inspect the document for the purpose of determining its relevance or the validity of its claim of privilege.

Documents or Errors Subsequently Discovered
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 its possession or control AND to correct any
  inaccuracies in its affidavit

Sanctions for Failure to Disclose or Produce
Rule 30.08(1) provides sanctions for a party’s failure to disclose or produce for inspection in compliance with the rules
    if the document is favourable to the party’s case, the party may not use the document at trial except with leave
        of the trial judge;
    if the document is not favourable to the party’s case, the court may make such other order as is just.

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 that
   document at trial:
    A party claiming privilege over a document may NOT use that document at trial UNLESS it gives notice n
        writing (i.e.. abandons the claim for privilege) and produces it for inspection within 90 days prior to
        commencement of trial
    EXCEPTION: a document over which privilege has been maintained can be used at trial to impeach the
        credibility of a witness




                                                                                                                         40
Production from Non-Parties
Rule 30.10 allows a party to move for production of a document from a non-party
    Test for requesting production from a non-party:
    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 to trial without having discovery of this
        document
Rule 30.10(3)
       if court is uncertain of necessity for discovery, court may inspect document to determine the issue

Ontario (AG) v. Stavro (fairness requirement of rule 30.10)
Facts
    allegations of breached fiduciary duties. P seeks order for 4 non-parties to produce documents that were in
       their control or power.
Disposition
    standard is whether it would be unfair to require the party to proceed to trial without the documents
    factors to be considered in making the fairness assessment:
            o importance of docs. to litigation
            o do you need production at discovery rather than trial
            o is discovery of issues to which documents pertain adequate; if no is the inadequacy due to the
                defendant
            o position of non-parties with respect to production
            o availability of equivalent information
            o if a third party closely aligned with a party opposing the motion then they are more susceptible to
                production then a neutral 3rd party

Discovering a Non- Party with Leave
31.10 (1) The court may grant leave, on such terms respecting costs and other matters as are just, to examine for
discovery any person who there is reason to believe has information relevant to a material issue in the action, other
than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation
Test for Granting Leave
  (2) An order under subrule (1) shall not be made unless the court is satisfied that,
 (a) the moving party has been unable to obtain the information from other persons whom the moving party is
      entitled to examine for discovery, or from the person the party seeks to examine;
 (b) it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the
      person; and
 (c) the examination will not,
        (i) unduly delay the commencement of the trial of the action,
       (ii) entail unreasonable expense for other parties, or
      (iii) result in unfairness to the person the moving party seeks to examine

Irwin Toy Ltd. v. Doe, Ont. Sup Ct J 2000
Facts
     P asks court to have an ISP disclose a customer’s name pursuant to rules 30.10 & 31.10. P brings an
        application for defamation arising from publication of e mails and supposedly confidential electronic files.
        However, the plaintiff could not determine who the defendant was.
Disposition
     In this case the court went beyond the unfairness test relating to production of a document because of the
        privacy issue and considered if there was a prima facie case
     ISP did not automatically disclose but were not adamantly opposed to disclosure.
     meets all aspects of test under 31.10 – leave granted


                                                                                                                        41
Privilege
Types of Privilege:
    1. Solicitor and client communications privilege;
    2. Litigation privilege; and,
    3. Settlement communications privilege (already covered)

Solicitor and Client Communications Privilege
     Solicitor and Client privilege applies to communications, whether oral or in writing, passing between a
        solicitor and the solicitor’s client or prospective client for the purpose of giving or receiving legal advice

Pritchard v. Ontario (Human Rights Commission) (In House Council)
Facts
     Ontario Human Rights Commission decides not to go ahead with Plaintiff’s allegations of a breach of her
        Rights. Plaintiff seeks production of documents relevant to this decision including an opinion letter produced
        by in-house counsel at the Commission regarding hearing the matter.
Issues
     Does the fact that the letter was provided by in-house counsel alter the privilege analysis – should solicitor and
        client privilege extend to this opinion letter?
Disposition
     Court rules that this opinion letter was created in a way that would have been the same had the HRC sought
        outside counsel’s legal advice – no exception that would justify moving away from solicitor-client privilege
     when dealing with in-house counsel privilege must be considered on a case by case basis because of the variety
        of roles that in-house counsel can play –e.g., executive functions vs. providing legal advice

Ontario (Ministry of Environment) v. McCarthy Tétreault (Privilege test)
Facts
    Lafarge, a cement manufacturer represented by McCarthy. Solicitor from McCarthy tours the manufacturing
       facility and attends meeting regarding environmental issues. Solicitor is the only person at the meeting who
       took notes. Minister of the Environment seeks production of these notes. Lawyer claims privilege, says notes
       were made solely for purposes of providing legal advice. MOE claims privilege should not apply, privilege
       used to veil a secret environmental audit.
Disposition
    test is whether document was created for the purpose of obtaining legal advice or assistance
    Judge convinced by affidavit filed by lawyer asserting that his presence at meeting was for purpose of
       gathering evidence to provide legal advice and that he had circulated some advice at the meeting
    solicitor-client privilege upheld

Litigation Privilege
     Litigation Privilege applies to documents prepared “in contemplation of litigation”
     applies only throughout the time-frame in which litigation is contemplated or occurring

General Accident Assurance Co. v. Chrusz (Dominant purpose test)
Facts
    the owner of a motel makes an insurance claim after a fire. The insurance company hires an insurance
       adjuster. Fairly early on a suspicion of arson arise and at that point a lawyer is hired. As the investigation
       proceeds the insurer pays out a large sum to the claimant. After this payment is made a former manager of the
       motel comes forward suggesting that parts of the claim were fraudulent; manager produces some spread sheets
       and a statement asserting his reasons for asserting the allegation to “clear his conscience”. Says he gave this
       information with no thoughts of litigation at the time. Lawyer gets a copy of statement and is told that he
       needs to keep it confidential. Insurer sues the insured. Insured counterclaims against the insurer, investigator
       and former manager alleging slander, defamation and liable.
Disposition


                                                                                                                         42
      Test - Documents are privileged if contemplation of litigation was the dominant purpose for which they
       were created
Application
    Privilege between lawyer and insurance company?
            o yes – solicitor and client
    Privilege between lawyer and insurance adjuster?
            o yes – but litigation privilege – not solicitor client because of independent nature of the investigation
              the adjuster was undertaking
            o initial period of litigation privilege applied only up until the insured received funds from the insurer
              because payment indicated that their suspicions had been alleviated and thus were no longer “in
              contemplation of litigation”
    Privilege regarding documents from employee
            o do the documents become privileged by virtue of being put in lawyers file?
            o no in this case, but could in other circumstances
            o copy of statement in hands of insurer – litigation privilege applies because on obtaining this
              information insurer contemplated litigation
            o copy of statement in hands of employee – no – he did not contemplate litigation privilege


Privilege on Grounds of Confidentiality
     expanding area of privilege

    Slavutych (Wigmore test)
     4 required elements to extend privilege on grounds of confidentiality:
        1. the communications must originate in a confidence that they will not be disclosed
        2. this element of confidentiality must be necessary for the full and satisfactory relationship of the parties
            involved
        3. the relation must be one that in the eyes of the community ought to be sedulously fostered
        4. would the injury to the parties relationship caused by disclosure of the information be outweighed by the
            benefit to the litigation gained by this disclosure

A.M. v. Ryan, SCC 1997 (Doctor Patient Privilege)
Facts
     Woman brings suit against doctor alleging a sexual assault. Woman had been seeing psychiatrist to deal with
        issues she was facing as a result of the alleged sexual acts of the first doctor.
Issue
     Does the psychiatrist need to disclose documents produced in treatment of the patient – in particular the
        personal notes taken by psychiatrist while trying to understand the patients case and those notes that were taken
        while the session was ongoing.
Disposition
     Wigmore test provides flexibility for privilege- customized privileged
            o Element 1 - met – the communications were made in confidence, the patient wanted them to be made
                in confidence and the doctor assured her that she would do everything in her power to maintain their
                confidence – the possibility that a court would order disclosure is not sufficient for violating this first
                element
            o Element 2 – looks at specific relationship –met
            o Element 3 – broader public policy/societal good inquiry – met – it is in the interest of the victim and
                society that they receive treatment for the harm caused by sexual abuse
            o Element 4 – balancing – not met-compelling interest in protecting these communications but there may
                also be very relevant information contained in notes in relation to the claim




                                                                                                                         43
Implied/Deemed Undertakings
     Evidence uncovered in discovery process that otherwise would not have been discovered is deemed to be
        confidential
30.1.01 (1) This Rule applies to, evidence obtained under r.30-35 (documentary discover, examination for dis., insp.
of property, medical examination)
Deemed Undertaking
(3) All parties and their counsel are deemed to undertake not to use evidence or information to which this Rule applies
for any purposes other than those of the proceeding in which the evidence was obtained
(4) Exceptions – does not prohibit use to which the person who disclosed evidence consents

Tanner v. Clark (R. 30.1 does not apply to arbitration)
    P entered into arbitration proceedings and submitted medical reports
    Common law protected medical reports from disclosure in civil suits; but
    deemed undertaking rule 30.1 did not apply – arbitration no a “proceeding” covered by the Rules

Lac D’Amiante (R. 30.1 arguable could apply to other proceedings)
    Court ‘read in’ common law concept of implied undertakings into Civil law.
    different jurisdiction; different statutory context
    but argualbe

Note on E-discovery
    obligations including e-discovery
    Spoliation – independent tort relating to intentional destruction of documents obliged to be discovered
    litigation hole need to capture documents of the case as to a date that is relevant to the litigation
           o not so difficult for hard copies
           o but for electronic documents their present state may not be reflective of what was available during the
               litigation hole
           o provide info about electronically stored information




                                                                                                                    44
Examination for Discovery:

Definition: the compulsory, pre-trial disclosure by a party to an action, under oath, of all of the party’s knowledge,
  information and belief surrounding all of the facts and evidence that are relevant to the issues in the action

Who may be examined?
31.03 (1) A party to an action may examine for discovery any other party adverse in interest,
On Behalf of Corporation
(2) Where a corporation may be examined for discovery,
        (a)the examining party may examine any officer, director or employee on behalf of the corporation, but the
        court ... may order the examining party to examine another officer, director or employee; and
        (b)the examining party may examine more than one officer, director or employee only with the consent of the
        parties or the leave of the court
(3) Partners– each partner may be examined; (b) additional employees with consent
(6) Persons Under Disability - may be examined if deemed competent

Menzies v. Mcleod (D can examine another D)
     nurse of deceased a beneficiary of a will along with other relatives listed as defendants
Issue:
     Can the family member defendants examine the nurse defendants
Disposition
     if the will was upheld the nurse would benefit
     if the will was declared invalided the other relatives would benefit
     therefore both defendants had adverse interests

Clarkson Mews (Corporations – P’s choice Refusal)
Facts:
      the person chosen by the examining party had some past history with the transactions in dispute. He did not
         have full aquaintance with the facts. He refused, he didn’t want to become acquainted with the facts and be
         discovered.
Disposition
      P has initial right of first choice over who to examine
      refusal by a suitable person not sufficient to avoid examination

Rainbow Industrial (P’s Choice Exception)
Facts
      examining party chose a junior person
      he was more acquainted with the facts then in Clarkson
      but company sought substitution for a more senior person who had a greater connection with the claim itself
Disposition
    plaintiff has right of choice in first instance; but
    “here may be instances where there is an exception to this rule “in the interest of achieving a balance so
       that justice and fairness can be achieved”
    substitution allowed




                                                                                                                         45
Examining Non-Parties with Leave
31.10 (1) The court may grant leave, on such terms respecting costs and other matters as are just, to examine for
discovery any person who there is reason to believe has information relevant to a material issue in the action, other
than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation
Test for Granting Leave
  (2) An order under subrule (1) shall not be made unless the court is satisfied that,
  (a) the moving party has been unable to obtain the information from other persons whom the moving party is
      entitled to examine for discovery, or from the person the party seeks to examine;
  (b) it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the
      person; and
  (c) the examination will not,
        (i) unduly delay the commencement of the trial of the action,
       (ii) entail unreasonable expense for other parties, or
      (iii) result in unfairness to the person the moving party seeks to examine
.

Carleton Condominium v. Shenkman (r. 31.10 Non-Party)
Facts
     Defendant looking to discover former employee of a company that is a 3rd party to the proceedings
     that employee is a key person involved in the repairs at issue
Issue
     court rules that examining party could have been obtained by inquiries made by the parties who are already
       subject to examination

Scope of the Examination: The Basic Obligation:
Rule 31.06 deals with the scope of examination for discovery:
(1) provides that a person must answer any proper question to the best of his or her knowledge, information or belief
relating to any matter in issue or made discoverable by subrules (2) and (4) [re: names and addresses of potential
witness, expert opinions and insurance policies]

Rejected Grounds for Objecting to a Question:
Rule 31.06(1) provides that you CANNOT object to a question on any of the following grounds:
     The information sought is evidence;
     the question constitutes cross-examination, unless the question is directed solely at the credibility of the
        witness; or,
     the question constitutes cross-examination on the affidavit of documents of the party being examined.




                                                                                                                        46
R.31 06“Knowledge, Information and Belief”:
    Knowledge is obtained from the witness’ own 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 information from others.

Forliti v. Woolley (Questions you don’t need to answer during examination)
Facts
    Medical negligence came where a child was born with severe injuries. Allegation that D had not attended to
         babies deliver properly and that caused the babies injuries
Disposition
    Questions that the examined party does not need to answer:
             o questions must be relevant
             o witness does not have to answer questions soliciting an opinion or regarding a hypothetical situation
             o with the exception of an expert being asked about an opinion/hypotheticals
             o don’t have to answer questions pertaining to another individuals conduct
             o questions that are vague
             o questions that are misleading

“Knowledge, Information and Belief” Obligation:
Impact of Obligation:
    If the person being examined obtained information from persons 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);
    A person being examined is required, without being asked, to make positive efforts to inform herself (from all
       the persons to whom she reasonably has access) as to the facts and circumstances in issue in the action;
    That requires a corporate representative being examined to speak to all others in the employ of the
       corporation who might have relevant information so as to be able to provide full and complete discovery
    If a witness is unable to answer proper questions on discovery, he is required to undertake to make ‘reasonable
       efforts’ to obtain the information required from others in order to answer the question, and then to provide the
       information to the examining party.

Examination for Discovery: Scope of Privilege

General Rule: the same rules with respect to privilege apply to examinations for discovery and discovery of
documents (i.e.. affidavits of documents) …
Exceptions
    Communications Between Doctor and Patient: NO privilege; all RELEVANT medical information must be
       disclosed
    Litigation Privilege: (Rule 31.06) Privilege prevents party from being compelled to produce physical
       document; but does not extend to content!
            o party required to disclose all relevant facts and info even if in privileged doc.

Disclosure of Potential Witnesses
Rule 31.06(2) 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.




                                                                                                                       47
Expert Opinions
Rule 31.06(3) the party examining a witness is entitled to the “findings, opinions and conclusions” (collectively
  referred to as the ‘opinion’) of any expert witnesses engaged by the person being examined (plus the name and
  address of the expert
   must also disclose the factual information or documents used by the expert in arriving at her ‘opinion’ (i.e.. the
       ‘foundation’ for the opinion;
   BUT
   Rule 31.06(3)(a) and (b), IF the opinion was formed in contemplation of litigation ONLY, AND 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

Questions of Law:
Questions of law are not proper; material facts okay

Continuing Discovery:
Rule 31.09(1) requires that the party must provide the updated information in writing to every other party “forthwith”
  upon discovering it
Rule 31.09(2) the party receiving the new information may request that the information be sworn in an affidavit OR
  that the party present himself for a further examination for discovery (

Burke v. Gauthier (Rule 31.09)
Facts
    P is injured and at time of discovery is not feeling to bad and feels like he is recovering by the time he gets to
        trial his condition has worsened – but no continued disclosure to update opposing counsel on changes in his
        condition
Disposition
    Rule. 31.09(1) – plaintiffs duty to provide the defendant in writing with information that any answer given
        during examination for discovery no longer complete
    R.31.09(3) – if this new information is favourable to plaintiff it is inadmissible without leave from court
    changes in condition were not admissible because no continued disclosure




                                                                                                                      48
Disposition Without Trial

Motions – General Procedure
    R. 37 – Governs procedures for motions, though some motions have supplementary procedures
    R. 37.06 - Motion must be made by notice of motion stating:
           o Precise relief sought;
           o Grounds to be argued, including reference to any statutory provision or rule relied on;
           o Documentary evidence to be used at hearing of motion

Summary Judgment
    is there enough evidence to make for a genuine issue for trial?
    available to D & P
    burden on responding party
    no definitive SCC case law on the role of a judge in interpreting a s. 20 motion.
    cost consequences - default rule is that party bringing the motion is responsible for substantial indemnity costs
     for that motion

   20.01 (1) A plaintiff may, after the defendant has delivered a statement of defence or served a notice of motion,
   move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in the
   statement of claim.
          (3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or
   other evidence for summary judgment dismissing all or part of the claim in the statement of claim.

Test for Summary Judgment:
 20.04 (1) In response to affidavit material or other evidence supporting a motion for summary judgment, a
  responding party may not rest on the mere allegations or denials of the party’s pleadings, but must set out, in
  affidavit material or other evidence, specific facts showing that there is a genuine issue for trial.
       (2) The court shall grant summary judgment if,
       (a) the court is satisfied that there is no genuine issue for trial with respect to a claim or defence; or
       (b) the parties agree to have all or part of the claim determined by a summary judgment and the court is
  satisfied that it is appropriate to grant summary judgment.

Irving v. Ungerman, 1991 OCA (Genuine Issue For Trial - credibility)
Facts
     2 parties, Ungerman and Galanis claim they have purchased property from a vendor. Galanis was the lessor of
         property and had right or first refusal – in order to exercise this right galanis had to present the vendor with an
         offer and a check for 10,000 by a given date. Ungerman states that they had presented an offer that had not
         been matched by Galanis. Galanis claims he had made a matching offer. Galanis seeks specific performance
         for the property. Both make applications for summary judgment and summary judgment is given to Galanis.
         Galanis presented a signed check in favour of the defendant for the amount specified and dated within the
         appropriate time for evidence. Ungerman appeals, OCA recognizes a issue of credibility. Despite the date on
         the check there is the issue of whether the check was delivered by the required date. The vendor says the check
         was not delivered on the date while Galanis and his son hold that it was.
Disposition
     If the evidence on a motion for summary judgment satisfies the court that there is no issue of fact which
         requires a trial for its resolution, the requirement of the rule have been met
     It must be clear that a trial is unnecessary.
     if there is an issue of credibility a trial is required and summary judgment should not be granted
     here there is issue of credibility regarding whether the check was actually deposited




                                                                                                                         49
Rogers Cable TV v. 373041 Ontario Ltd. 1994 (Credibility – relaxed approach)
Facts
    Rogers alleges that there is a debt owed by the defendant. They have evidence to the extent of the debt and
       evidence that the checks paid by the defendant bounced. Rogers brings a motion for summary judgment.
       Defendant files affidavit, endorsed by the president, suggesting that the debt was forgiven by the plaintiff –
       there is no other documented evidence to suggest the debt was forgiven
Disposition
    Court does rejects the defendant’s position – no genuine issue
    If the court were to reject the plaintiff’s motion then this would allow any motion for summary judgment to be
       undermined by the ‘creation’ of a credibility issue by the opposing party
    court weighs evidence – only the affidavit is given (which is essentially no evidence)
    court grants the summary judgment

Aguonie v. Galion Solid Waste, OCA 1998 (Strict Approach)
Disposition
Principles to guide the court while disposing of a motion for summary judgment:
     in order to qualify as a genuine issue of fact the fact in dispute must be a material fact
     the court must stop short of resolving factual issues
     on a motion for summary judgment the court will never assess credibility, weigh evidence or find fact as
        these functions are all reserved for the trier of fact.
     issue of credibility always requires trial


Summary Judgment under r. 76 (Simplified Procedure)
    streamlined procedure for when damages/property sought under $50,000
    no examinations for discovery
    limited cross-examinations
    Responding party must adduce evidence that “judgment ought not to be granted” (r. 76.07(4))
    less strict test – easier to receive a grant of summary judgment in a rule 76 procedure

Determination of an Issue Before Trial (Legal Question Only)
    Note also r. 21.01 (1)(a)
           o A party may move before a judge for the determination, before trial, of a question of law raised by a
               pleading in an action where the determination of the question may dispose of all or part of the action,
               substantially shorten the trial or result in a substantial savings of costs...
           o … No evidence is admissible … except with leave of the court
    only looking at pleadings
    looking for a ruling from the court on the legal question only
    motions under this rule may arise in the context of:
           o limitation periods
           o whether a snowmobile fell within the definition of automobile within the insurance act
           o whether an officer or director of a corporation is personally liable for actions of the corporations
    NO factual evidence needs to be weighed to answer these legal question




                                                                                                                     50
Other Methods of Early Disposal: Default Proceedings
 19.01 (1) Where a defendant fails to deliver a statement of defence within the prescribed time, the plaintiff may, on
  filing proof of service of the statement of claim, or of deemed service under subrule 16.01 (2), require the registrar
  to note the defendant in default.

19.02 (1) A defendant who has been noted in default,
      (a) is deemed to admit the truth of all allegations of fact made in the statement of claim; and
      (b) shall not deliver a statement of defence or take any other step in the action, other than a motion to set aside
   the noting of default or any judgment obtained by reason of the default, except with leave of the court or the consent
   of the plaintiff.

   19.04 (1) Where a defendant has been noted in default, the plaintiff may require the registrar to sign judgment
   against the defendant in respect of a claim for,
      (a) a debt or liquidated demand in money, including interest if claimed in the statement of claim;
      (b) the recovery of possession of land;
      (c) the recovery of possession of personal property; or
      (d) foreclosure, sale or redemption of a mortgage

Setting Aside Default Judgment
   19.08 (1) A judgment against a defendant who has been noted in default that is signed by the registrar or granted
   by the court on motion under rule 19.04 may be set aside or varied by the court on such terms as are just.

       step 1 – note the defendant in default (done by registrar)
             o once D noted in default deemed to concede evidence in statement of claim
             o cannot admit statement of defence
       step 2 – once defendant noted in statement of default you seek a default judgment
       at this point D can bring motion to have default judgment set aside
       court will consider
             o how quickly did D move once judgment was delivered against D
             o what was the explanation for the default
             o D must then show there was a defence on the merits
       Example:
             o D suffers mental illness preventing him from submitting defence, moved quickly once he was capable
                 and there was triable issues – default judgment set aside




                                                                                                                       51
52
Professionalism
Cornerstones of Professionalism
    Ethics
    Competence

Lawyer-Client Relationship
    Competence
    Honesty and Candour
    Confidentiality of Communications
    Absence of Conflict of Interest

Competence
2.01 (1) In this rule,
"competent lawyer" means a lawyer who has and applies relevant skills, attributes, and values in a manner appropriate
to each matter undertaken on behalf of a client including:

(a) knowing general legal principles and procedures and the substantive law and procedure for the areas of law in
which the lawyer practices;

(b) investigating facts, identifying issues, ascertaining client objectives, considering possible options, and developing
and advising the client on appropriate courses of action;

(c) implementing, as each matter requires, the chosen course of action through the application of appropriate skills,
including:
(i) legal research,
(ii) analysis,
(iii) application of the law to the relevant facts,
(iv) writing and drafting,
(v) negotiation,
(vi) alternative dispute resolution
(vii) advocacy, and
(viii) problem-solving ability;

(d) communicating at all stages of a matter in a timely and effective manner that is appropriate to the age and abilities
of the client;
      document communications &important communications in writing
      do not assume you ‘know best’ – communicate relevant or potentially relevant information
always communicate the downside risks of a course of action.

(e) performing all functions conscientiously, diligently, and in a timely and cost-effective manner;

(f) applying intellectual capacity, judgment, and deliberation to all functions;

(g) complying in letter and in spirit with the Rules of Professional Conduct;

(h) recognizing limitations in one's ability to handle a matter or some aspect of it, and taking steps accordingly to
ensure the client is appropriately served;

(i) managing one's practice effectively;

(j) pursuing appropriate professional development to maintain and enhance legal knowledge and skills; and

                                                                                                                        53
(k) adapting to changing professional requirements, standards, techniques, and practices.

Honesty and Candour
  2.02 (1) When advising clients, a lawyer shall be honest and candid.

    Commentary The lawyer's duty to the client who seeks legal advice is to give the client a competent opinion based
    on a sufficient knowledge of the relevant facts, an adequate consideration of the applicable law, and the lawyer's
    own experience and expertise. The advice must be open and undisguised and must clearly disclose what the lawyer
    honestly thinks about the merits and probable results.

Confidentiality
    2.03 (1) A lawyer at all times shall hold in strict confidence all information concerning the business and affairs
       of the client acquired in the course of the professional relationship and shall not divulge any such information
       unless expressly or impliedly authorized by the client or required by law to do so.

        Difference between Solicitor-Client Privilege and Confidentiality
        NB. The lawyer-client relationship is a fiduciary one.

Justified or Permitted Disclosure

   2.03 (2) When required by law or by order of a tribunal of competent jurisdiction, a lawyer shall disclose
    confidential information, but the lawyer shall not disclose more information than is required.

    2.03 (3) Where a lawyer believes upon reasonable grounds that there is an imminent risk to an identifiable person or
    group of death or serious bodily harm, including serious psychological harm that substantially interferes with health
    or well-being, the lawyer may disclose, pursuant to judicial order where practicable, confidential information where
    it is necessary to do so in order to prevent the death or harm, but shall not disclose more information than is
    required.

        keep in mind this permitted disclosure only applies to what the client is going to do (not what they have
         already done, which is confidential)
        rule 2.03(3) establishes a high threshold
        also note the permissive language used

Avoidance of Conflict of Interest
 2.04 (1) In this rule,

    a "conflict of interest" or a "conflicting interest" means an interest (a) that would be likely to affect adversely a
    lawyer's judgment on behalf of, or loyalty to, a client or prospective client, or

    (b) that a lawyer might be prompted to prefer to the interests of a client or prospective client.

   2.04 (4) A lawyer who has acted for a client in a matter shall not thereafter act against the client or against persons
    who were involved in or associated with the client in that matter:

    (a) in the same matter,

    (b) in any related matter, or

    (c) save as provided by subrule (5), in any new matter, if the lawyer has obtained from the other retainer relevant
    confidential information

   unless the client and those involved in or associated with the client consent.

                                                                                                                            54
   2.04 (5) Where a lawyer has acted for a former client and obtained confidential information relevant to a new
    matter, the lawyer's partner or associate may act in the new matter against the former client if

    (a) the former client consents to the lawyer's partner or associate acting, or

    (b) the law firm establishes that it is in the interests of justice that it act in the new matter, having regard to all
    relevant circumstances, including
    (i) the adequacy and timing of the measures taken to ensure that no disclosure of the former client's confidential
    information to the partner or associate having carriage of the new matter will occur,

    (ii) the extent of prejudice to any party,

    (iii) the good faith of the parties,

    (iv) the availability of suitable alternative counsel, and

    (v) issues affecting the public interest.

Martin v. Gray (Conflict of Interest – Possibility of Mischief Test)
Facts
    Appellant solicitor was assisted by a junior member of the firm, who later joined the respondent’s solicitor’s
        firm.
Disposition
    3 competing values:;
   1. maintenance of high standards of professionalism/integrity of justice system
   2. litigants right to chose council
   3. permitting reasonable mobility in legal profession
    test for determining if there is a disqualifying conflict of interest is if there is a possibility of real mischief
            o would the public, as represented by a reasonably informed person, would be satisfied that no use
                of confidential information?
    2 questions arise
        1. did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to
            the matter at hand?
        2. Is there a risk that confidential material will be used to prejudice the client?

Duty to Make Services Available

   3.01 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 and independence of the profession.

    Commentary It is essential that a person requiring legal services be able to find, with a minimum of difficulty or
    delay, a lawyer qualified to provide such services. The lawyer may assist in making legal services available by
    participating in the Legal Aid Plan and lawyer referral services, by engaging in programs of public information,
    education or advice concerning legal matters, and by being considerate of those who seek advice but are
    inexperienced in legal matters or cannot readily explain their problems.

   Right to Decline Representation - The lawyer has a general right to decline a particular representation (except
    when assigned as counsel by a tribunal), but it is a right to be exercised prudently, particularly if the probable result
    would be to make it difficult for a person to obtain legal advice or representation. Generally, the lawyer should not
    exercise the right merely because a person seeking legal services or that person's cause is unpopular or notorious, or
    because powerful interests or allegations of misconduct or malfeasance are involved, or because of the lawyer's

                                                                                                                              55
private opinion about the guilt of the accused. A lawyer declining representation should assist in obtaining the
services of another lawyer qualified in the particular field and able to act.




                                                                                                                   56

				
DOCUMENT INFO
Categories:
Tags:
Stats:
views:2
posted:5/15/2012
language:English
pages:56