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					                                                                                                 WEEK 2: Murphy


                                                                   Murphy v. Dodd

(1989), 63 DLR (4th) 515 (Ont. HC)

……….

GRAY J (orally): In the Supreme Court of Ontario, Court File No. 1566/89 between Gregory Murphy, applicant,
and Barbara Dodd, Women‘s College Hospital, John Doe, Jane Doe and other persons unknown, respondents.

          In these reasons for judgment I will refer to Gregory Murphy as the applicant and Barbara Dodd as the
respondent because that was their status on the proceeding before O‘Driscoll J, on July 4, 1989. In the present
motion before me the respondent Barbara Dodd seeks leave to bring this motion on short notice and seeks an order
setting aside the order of O‘Driscoll J, dated July 4, 1989. After hearing submissions I granted leave to her to bring
this motion on short notice. The disposition of her motion to set aside the order aforesaid will be dealt with later.

         The Canadian Hearing Society sought an order permitting it to intervene, pursuant to Rule 13.02 of the
Rules of Civil Procedure in the present motion. It also sought leave to bring its motion on short notice together with
an order permitting the filing of the affidavits of Joseph Regan and Denis Morrice as evidence in the respondent‘s
motion. After hearing submissions I granted leave to bring its motion on short notice and I make an order permitting
the Canadian Hearing Society to intervene and I made a further order permitting the filing of the affidavits of Joseph
Regan and Denis Morrice.

         Rule 13.02 reads thus:

         Any person may, with leave of a judge or at the invitation of the presiding judge or Master, and
         without becoming a parry to the proceeding, intervene as a friend of the court for the purpose of
         rendering assistance to the court by way of argument.

         It is to be noted that the leave to intervene as a friend of the court would be granted for the purpose of
rendering assistance to the court by way of argument. The Canadian Hearing Society takes no position with respect
to the principal argument between the parties and limited its submissions to a consideration of the applicability of
Rule 38.12(1) in the present motion between the parties. I made the order permitting the society to intervene
because I was convinced that the society as a friend of the court could render assistance to the court by way of
argument.

         The next matter I mention is of great importance. Notwithstanding certain publicity which has been given
to this motion, I must make it very clear that this motion is not an appeal from the order of O‘Driscoll J. This
motion is expressed in the notice of motion as a motion to set aside the said order. The two rules upon which the
motion is based are rules 38.12(1) and 59.06(2)(a). For the sake of completeness, I will set forth rule[s] 38.12(1)
and (3) and 59.06(2)(a):

         38.12(1) A person who is affected by a judgment on an application made without notice or who
         fails to appear at the hearing of an application through accident, mistake or insufficient notice
         may move to set aside or vary the judgment, by a notice of motion that is served forthwith after
         the judgment comes to the person‘s attention and names the first available hearing date that is at
         least three days after service of the notice of motion. [Emphasis added.] …

         (3) On a motion under subrule (I), the judgment may be set aside or varied on such terms as are
         just. …

         59.06(2) A party who seeks to,

         (a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it
         was made; ..........



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[m]ay make a motion in the proceeding for the relief claimed.

          To fit within rule 38.12(1) the respondent must prove that she failed to appear on July 4, 1989, ―through
accident, mistake or insufficient notice,‖ and to fit within rule 59.06(2) the respondent must prove the ground of
fraud or facts arising or discovered after the order was made on July 4, 1989.

         This is the endorsement made by O‘Driscoll J, on July 4, 1989.

         The time is 10:40 a.m.; counsel for the Applicant advises me that she has had indirect
         communication with the Respondent Dodd; neither Respondent appears nor does Dodd intend to
         appear by counsel. No-one is here to represent the hospital.

         Order to go as requested in paragraphs 1(a), (b), (c) and (d) of the within Notice of Motion.

         Counsel for the Applicant asks that I state that the order is granted on the grounds set out in
         para. 2(a) to (e) inclusive of the Notice of Motion. Assuming that I did agree with some or all of
         the said grounds, I do not find it necessary to volunteer opinion or obiter dicta on matters not
         necessary for the granting of injunctive relief.

         No order as to costs. July 4/89, J O‘Driscoll J.

         This is the order of Mr. Justice O‘Driscoll of that date, or I should say this is the substance of part of the
order:

         1. THIS COURT ORDERS that the Applicant is hereby granted leave to bring this application on
         short notice.

         2. THIS COURT ORDERS that the Respondents, their servants, or agents are hereby restrained
         from taking the life of the infant Dodd-Murphy, either by performing or undergoing an abortion or
         a Caesarean operation or otherwise and from committing a trespass to the person of the infant
         Dodd-Murphy by assault or battery or otherwise.

         3. THIS COURT DECLARES that the said infant Dodd-Murphy en ventre sa mere is under the
         protection of this honourable Court.

         4. THIS COURT ORDERS THAT THERE BE NO ORDER AS TO COSTS.

        I feel that O‘Driscoll J was in a very, very difficult position. This is quite apparent from the wording of the
endorsement and the short time which elapsed between the opening of weekly court and the time of 10:40 a.m.

          I turn now to rule 38.12(1) and observe its wording. If the respondent is to succeed, she must convince me
that she failed to appear through accident, mistake or insufficient notice. It would seem to me that the important
words in this regard are the words ―insufficient notice.‖ Those words permit me to take into account all the
circumstances surrounding the service. It is true that the parties were together for some considerable period of time
on June 29, 1989, in the circumstances set forth in para. 29 of the applicant‘s most recent affidavit, together with the
further facts set forth in paras. 30 and 31 thereof. The respondent‘s version is best understood by paras. 25 to 21 of
her affidavit which reads thus:

              25. On Thursday, June 29th, 1989, Greg came to me at Filmore‘s where I was working. I
         asked him to leave because he had made such a big scene at Elaina‘s recently. He made it clear
         that his family did not like the idea of my having an abortion and that he wanted me to go see a
         Father Lombardi who would try to persuade me to go through with the pregnancy. He also
         showed me what looked to me to be legal papers, the same legal papers.




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             26. Greg said to me on Thursday night at Filmore‘s, ―I can spend thousands of dollars a day
         to prevent you having an abortion.‖ This was the first time Greg actually stated to me that he
         opposed my abortion.

              27. That on Friday, June 20, 1989, I was downstairs in my own home when Angela Costigan
         knocked at the door. I answered the door and she presented to me some papers and I asked her
         what are these. She answered me by speaking to me but she did not use the sign language of the
         deaf. I tried to follow her words and she said that it was something about the abortion. She did
         not explain to me anything about the proceeding, that I had to appear in Court, and I took the
         papers and glanced at them feeling very upset and shot the door. Over that weekend I had an
         opportunity to read the documents and understood that they were about trying to stop me from
         having an abortion. I was confused and afraid when I read these documents. I do not know any
         lawyers and I did not speak with members of my family nor did I have anyone to give me any
         advice. My abortion was scheduled for Tuesday July 4, 1989 and now the court date was also
         scheduled for the same time. I was torn between these two events and did not know what to do.
         At no time did I appreciate the significance of this court hearing and that it could affect my own
         choice to end my pregnancy. I was too frightened and confused and alone to appreciate this fact.
         If I had understood this fact, I would have spoken to my family and retained the services of
         counsel immediately to defend this injunction. To add to this problem, I felt that it was the long
         weekend and I could not get an interpreter or a lawyer to go to court with me. It was all muddled
         in my mind.

         I accept that the respondent has some knowledge of courts from her earlier experiences in the Provincial
Court (Criminal Division) and in matrimonial matters. The facts surrounding the service, however, are that the
applicant's counsel served her on Friday, June 30, at 1225 p.m., with the notice of application which in part reads
thus (quoting from a portion of the printed form of the notice of application, there are three paragraphs to this):

         IF YOU WISH TO OPPOSE THIS APPLICATION, you or an Ontario lawyer acting for you must
         forthwith prepare a Notice of Appearance in Form 38C prescribed by the Rules of Civil Procedure,
         serve it on the Applicant(s) lawyer(s) or, where the Applicant(s) do(es) not have a lawyer, serve it
         on the Applicant(s), and file it, with proof of service, in this court office, and you or your
         lawyer(s) must appear at the hearing. IF YOU WISH TO PRESENT AFFIDAVIT OR OTHER
         DOCUMENTARY EVIDENCE TO THE COURT OR TO EXAMINE OR CROSS-EXAMINE
         WITNESSES ON THE APPLICATION, you or your lawyer(s) must, in addition to serving your
         Notice of Appearance, serve a copy of the evidence on the Applicant(s) lawyer(s) or, where the
         applicant(s) do(es) not have a lawyer, serve it on the applicant(s), and file it, with proof of service,
         in the court office where the application is to be heard as soon as possible, but not later than
         2:00 p.m. on the day before the hearing.

            IF YOU FAIL TO APPEAR AT THE HEARING, JUDGMENT MAY BE GIVEN IN YOUR
         ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO OPPOSE THIS
         APPLICATION BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY BE
         AVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE.

         I also accept that the respondent is an intelligent person and that there are no special rules in the Rules of
Civil Procedure covering service of documents on deaf persons. I do not intend to establish any special procedure in
that regard because that is a matter for the legislature or the rules committee. The fact that the respondent has a
hearing deficiency or is almost totally deaf, in itself, does not assist. This notice was served on Friday at 12:25 pm.,
and the respondent required to take action not later than 2:00 p.m. on the same day. The Monday following was a
statutory holiday and the application came on in weekly court at 10:00 a.m. on Tuesday, July 4, 1989. I ask myself
whether the respondent would understand the significance of such things as an injunction, an interim injunction, a
declaration or leave to bring the application on short notice.

        I am not prepared to hold that the respondent is a person lost in the justice system, but in all of the
circumstances on the special facts of this case, it is my view that the notice in this case is an insufficient notice under




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rule 38.12(1). I emphasize the special facts of this case as to the matters referred to in the Regan affidavits, the time
factors, the nature of the application and all the surrounding circumstances.

          I turn now to rule 59.06(2). The position of the respondent is that O‘Driscoll J would not have made the
injunction order if these had not been what is called a fraud so far as the court was concerned. It is urged that the
applicant misled the court by leaving the impression that he is the father of the fetus in question. He described the
fetus as ―our child‖ and ―my child‖ throughout and spoke of ―the infant Dodd-Murphy.‖ Counsel for the applicant
stresses the fact that on this branch the applicant cannot be accused of any fraud on the court by stating matters
which he believes to be true or by stating matters which are the opinions of medical experts. The applicant‘s
affidavit clearly left the impression that he is the father. He did not allow O‘Driscoll J to have the knowledge that
another man might be responsible for the paternity of the fetus in question.

        Another factor concerns ―danger to the respondent.‖ There is a direct conflict in the evidence of Doctor
Morad Sarref and the applicant, and there is good reason to believe that the order of O‘Driscoll J would not have
been made if this evidence of ―danger to the respondent‖ had been put forward in Doctor Sarref‘s words. I cannot
be expected in oral reasons for judgment to summarize all of the affidavit evidence, hut there is considerable
evidence to support the allegations concerning Doctor Sarref‘s position, he, being the respondent‘s gynecologist.

         The respondent‘s position on para. 15 of her factum reads thus:

         It is respectfully submitted that had the Honourable Mr. Justice O‘Driscoll been aware that the
         hearsay assertion respecting medical advice that the Respondent‘s life was at ―serious risk― by the
         prospective abortion was a bold-faced lie, he would never have acted upon the request for an
         injunction.

          I have reached the conclusion that there was a fraud on the court within rule 59.06(2) within the learning
set forth in 100 Main Street West v. Sakas (1975), 8 OR (2d) 385 at p. 389, 58 DLR (3d) 161 at p. 165 (CA), and
that the fraud related to issues that were material as that word was considered by Osborne J, in International Corona
Resources Ltd. v. LAC Minerals Ltd. (1988), 66 OR (2d) 610 at pp. 622-3, 54 DLR (4th) 647 at pp. 658-9 (HCJ).

         For these reasons, an order will issue setting aside the order of O‘Driscoll J dated July 4, 1989.

         As I stated in open court, I am obliged to counsel for their assistance in this matter, which was brought on
with great expedition and is a credit to the administration of justice in Ontario.

          I do not choose to deal with the subject of motive or the questions concerning injunctive relief, namely (1)
whether standing should be granted to the applicant; (2) the status of the fetus on the present applicable law; and (3)
whether injunctive relief to prevent abortion is to be granted in Ontario following the recent leading cases. Nor do I
get into the classic learning concerning the granting of injunctions generally. I have been advised that until a few
days ago, no injunction has been granted against a woman to prevent abortion, except the case at bar.

         It may be that the matters with which we are concerned are matters for Parliament.

         In the result, therefore, as stated earlier, an order will issue setting aside the order herein of O‘Driscoll J
dated July 4, 1989.

         I was going to ask counsel if they have any submissions with respect to the question of costs. I should say
at the outset while my mind is open, I, at the present time, would not be inclined to do anything with respect to the
order of costs made by Mr. Justice O‘Driscoll which was, no order as to casts.

[Submissions re costs.]

         The disposition with respect to costs in civil matters .......... is that costs normally follow the event and
normally follow the event on a party-and-party basis. However, since the new rules have come into effect, there was
a great deal of learning that decided in certain instances, if there were unusual situations of some misconduct,



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solicitor-and-client costs can be ordered. I am relatively experienced in the question of costs. This is a matter on
which there should not be costs on a solicitor-and-client basis and the question I put to myself is whether there
should be no order as to costs for one or two reasons. One, because it is as a matrimonial matter, although strictly
speaking not a matrimonial matter. .......... Secondly, it is a rather unique case, which is difficult. No one knows
more than I do since I started it yesterday morning. In the circumstances, it is my view that there should be no order
as to costs.




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                                                                                             WEEK 2: Ferguson


                                                                   R. v. Ferguson

2008 SCC 6

The Chief Justice —

I. Introduction

[1]      This appeal raises two questions. First, does imposition of the four-year mandatory minimum sentence for
manslaughter with a firearm constitute cruel and unusual punishment contrary to s. 12 of the Canadian Charter of
Rights and Freedoms in the circumstances of this case? Second, can an offender who demonstrates that a mandatory
minimum sentence would constitute cruel and unusual punishment in his case obtain a stand-alone constitutional
exemption from the application of that minimum sentence?

[2        I conclude that the answer to both questions is no. On the facts of this case, the minimum sentence
imposed by s. 236(a) of the Criminal Code, R.S.C. 1985, c. C-46, is not grossly disproportionate and so does not
constitute cruel and unusual punishment in violation of s. 12 of the Charter. In any event, a constitutional exemption
is not an appropriate remedy for a s. 12 violation. If a minimum sentence is found to be unconstitutional on the facts
of a particular case, the law imposing the sentence is inconsistent with the Charter and therefore falls under s. 52 of
the Constitution Act, 1982.

II. Facts and Procedural History

[3]      This case arises out of the fatal shooting of Darren Varley by an RCMP officer, in the small town of
Pincher Creek in southwestern Alberta, while he was being held in a cell at the RCMP detachment. The RCMP
officer who shot Mr. Varley, Michael Esty Ferguson, was charged with second-degree murder but convicted by a
jury of the lesser offence of manslaughter. The judge imposed a conditional sentence of two years less a day,
notwithstanding the mandatory minimum sentence of four years imposed by s. 236(a) of the Criminal Code for
manslaughter with a firearm (2004), 39 Alta. L.R. (4th) 166, 2004 ABQB 928). The majority of the Alberta Court
of Appeal overturned that sentence, and held that the mandatory minimum must be imposed (2006), 65 Alta. L.R.
(4th) 44, 2006 ABCA 261). Constable Ferguson appeals to this Court, contending that a four-year sentence in the
circumstances would constitute cruel and unusual punishment contrary to s.12 of the Charter, and that the trial judge
was right to grant him a constitutional exemption from the four-year minimum sentence imposed by Parliament.

[4]      The events leading to the shooting of Mr. Varley may be briefly summarized. On the evening of October 2,
1999, Darren Varley went to Leo‘s bar in Pincher Creek to socialize with friends. He met up with his fiancée,
Chandelle Bachand, and his sister, Alaine Varley. At some point, unnoticed by Mr. Varley, Ms. Bachand left the
bar. Later in the evening, Mr. Varley and his friend Rod Tuckey became involved in a fight with a number of
persons in the bar‘s parking lot, because he believed Ms. Bachand had gotten into a van with strangers. Mr. Tuckey
required medical attention and was taken to hospital by Pat Bitango and Sarah Weatherhill. Mr. Varley stayed
behind to search for Ms. Bachand, with the help of his sister.

[5]       Around 3:30 in the morning of October 3, Darren Varley and Alaine Varley arrived at Pincher Creek
Hospital to visit Mr. Tuckey. Mr. Varley remained concerned about the whereabouts of his fiancée. The security
officer on duty, Earl Langille, called the RCMP and Mr. Varley spoke to the RCMP Telecoms Operator. As a result
of this call, Constable Ferguson was dispatched to the hospital, where he met Darren Varley, Alaine Varley, Sarah
Weatherhill, Pat Bitango, and Earl Langille in the lobby. Mr. Varley, who was intoxicated, insistently demanded that
Constable Ferguson take action to find his fiancée. Constable Ferguson grabbed Mr. Varley and, according to the
testimony of witnesses, punched him in the jaw and forced him to the ground. Constable Ferguson handcuffed Mr.
Varley and took him to the police cruiser. Alaine Varley repeatedly asked Constable Ferguson to release Mr. Varley
into her custody, but he refused.




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[6]        After placing Mr. Varley in the police cruiser, Constable Ferguson returned to the hospital. Left alone, Mr.
Varley kicked in the window of the police cruiser. On returning, Constable Ferguson drove Mr. Varley to the
detachment. Constable Ferguson booked Mr. Varley and the two entered the cell area with the assistance of the
booking officer. After opening Mr. Varley‘s cell, the booking officer walked back to his desk, a few feet away, and
Constable Ferguson entered the cell with Mr. Varley. Within a few seconds, Mr. Varley was shot twice: first, non-
fatally, in the stomach, and then, fatally, in the head. Up to three seconds elapsed between the first and second shot.
Constable Ferguson emerged from the cell and telephoned an off-duty colleague. Mr. Varley died from the second
shot after having been transported to Calgary Foothills Hospital by air ambulance. Constable Ferguson testified that
Mr. Varley attacked him when he entered the cell, pulling his bulletproof vest over his head and face and grabbing
his firearm from its holster. At trial, he testified that he and Mr. Varley were still struggling for the gun when the
shots went off. However, in an earlier statement, supported by expert evidence and accepted by the trial judge for
sentencing purposes, Constable Ferguson said that he had regained control of the gun when the shots were fired.

III. Issues

[7]   1. Does imposition of the four-year minimum sentence imposed by s. 236(a) of the Criminal Code constitute
         cruel and unusual punishment contrary to s. 12 of the Charter in the circumstances of this case?

      2. If so, was the trial judge entitled to grant a constitutional exemption from the four-year minimum and to
               impose a lesser sentence?

…

2. If the imposition of the four-year mandatory minimum sentence violated Section 12 of the Charter in the
circumstances of this case, was the trial judge entitled to grant a constitutional exemption from the four-year
minimum and to impose a lesser sentence?

[33]     Having found that the four-year minimum sentence of imprisonment required by s. 236(a) does not violate
Constable Ferguson‘s right not to suffer cruel and unusual punishment contrary to s. 12 of the Charter, it is not
necessary to consider whether a constitutional exemption would have been available had we found a violation of s.
12. As the Court of Appeal recognized, however, there has been considerable debate and disagreement in the lower
courts as to whether the remedy of a constitutional exemption is available. The matter having been fully argued, it is
appropriate to settle the question of whether a constitutional exemption would have been available to Constable
Ferguson, had the minimum sentence violated s. 12 of the Charter.

[34]     I note at the outset that the issue is not whether a remedy lies to prevent the imposition of cruel and unusual
punishment contrary to the Charter, but which remedies are available. The imposition of cruel and unusual
punishment contrary to ss. 12 and 1 of the Charter cannot be countenanced. A court which has found a violation of a
Charter right has a duty to provide an effective remedy. The only issue is whether a law imposing such punishment
can be permitted to stand subject to constitutional exemptions in particular cases, or whether the only remedy is a
declaration that the law is inconsistent with the Charter and hence falls under s. 52of the Constitution Act, 1982.

[35]    Two remedial provisions govern remedies for Charter violations: ss. 24(1) of the Charter and s. 52(1) of
the Constitution Act, 1982. Section 24(1) confers on judges a wide discretion to grant appropriate remedies in
response to Charter violations:

          24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied
         may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and
         just in the circumstances.

         Section 24(1) has generally been seen — at least until now — as providing a case-by-case remedy for
         unconstitutional acts of government agents operating under lawful schemes whose constitutionality is not
         challenged. The other remedy section, s. 52(1) of the Constitution Act, 1982, confers no discretion on




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         judges. It simply provides that laws that are inconsistent with the Charter are of no force and effect to the
         extent of the inconsistency:

         52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the
         provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

When a litigant claims that a law violates the Charter, and a court rules or ―declares‖ that it does, the effect of s.
52(1) is to render the law null and void. It is common to describe this as the court ―striking down‖ the law. In fact,
when a court ―strikes down‖ a law, the law has failed by operation of s. 52 of the Constitution Act, 1982.

[36]     The usual remedy for a mandatory sentencing provision that imposes cruel and unusual punishment
contrary to s.12 of the Charter is a declaration that the law is of no force and effect under s. 52 of the Constitution
Act, 1982. This was the remedy sought in Goltz, Morrisey, and R. v. Luxton, [1990] 2 S.C.R. 711. The mandatory
minimum sentence provisions in these cases were held to be constitutional. But it was argued that had the
provisions been held to be unconstitutional, the appropriate remedy was the s. 52 remedy of striking down.

[37]      In this case, despite the allegation of a constitutional violation, Constable Ferguson does not request that
the law that caused the alleged violation, s. 236(a) of the Criminal Code, be struck down. Instead, Constable
Ferguson argues that if the four-year mandatory sentence is found to violate the Charter, a constitutional exemption
under s. 24(1) should be granted. The argument for a constitutional exemption proposes that the law remain in force,
but that it not be applied in cases where its application results in a Charter violation. The judge would thus be free
to impose a sentence below the minimum set by law, which would nevertheless continue to stand.

[38]      The argument in favour of recognizing constitutional exemptions is simply put. The first prong of the
argument is that where a mandatory minimum sentence that is constitutional in most of its applications generates an
unconstitutional result in a small number of cases, it is better to grant a constitutional exemption in these cases than
to strike down the law as a whole. The s. 52(1) remedy of declaring invalid a law that produces a result inconsistent
with the Charter is a blunt tool. A law that may be constitutional in many of its applications — and indeed ruled
constitutional on a reasonable hypothetical analysis — is struck down because in one particular case, or in a few
cases, it produces an unconstitutional result. Would it not be better, the argument goes, to allow the law to stand,
while providing an individual remedy in those cases — arguably rare — where its application offends the Charter?

[39]      The second and complementary prong of the argument asserts that the remedy is available on the wording
of the Charter and the jurisprudence. Section 24(1), it is argued, grants courts a wide discretion to grant such
constitutional remedies as are ―appropriate and just‖. Granting a constitutional exemption and substituting a
constitutional sentence removes the law‘s inconsistency with the Charter, making s. 52(1) inapplicable. The cases
that have considered the matter, while inconclusive, do not rule constitutional exemptions out as a remedy for
unconstitutional sentences flowing from mandatory minimum sentence laws. More generally, granting
constitutional exemptions for unconstitutional effects of mandatory minimum sentence laws fits well with the
Court‘s practices of severance, reading in and reading out in order to preserve the law to the maximum extent
possible: see Schachter v. Canada, [1992] 2 S.C.R. 679.

[40]     Attractive as they are, the arguments for constitutional exemptions in a case such as this are, on
consideration, outweighed and undermined by counter-considerations. I reach this conclusion on the basis of four
considerations: (1) the jurisprudence; (2) the need to avoid intruding on the role of Parliament; (3) the remedial
scheme of the Charter; and (4) the impact of granting constitutional exemptions in mandatory sentence cases on the
values underlying the rule of law.

(1)   The Jurisprudence

[41]    This Court has not definitively ruled whether constitutional exemptions are available as a remedy for
mandatory minimum sentences that produce unconstitutional sentences. In concurring opinions, judges of this Court
have expressed both positive and negative evaluations of constitutional exemptions as remedies for unconstitutional
minimum sentences.




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[42]     In his concurring opinion in Smith, at pp. 1111-12, Le Dain J. considered and rejected the constitutional
exemption as a means of upholding minimum sentences that could generate unconstitutional results in some
circumstances. He stated that allowing such exemptions would create uncertainty, and the assumed validity or
application of the provision could have prejudicial effects in particular cases. On the other hand, Arbour J.
commented favourably on the possibility of exemptions from mandatory minimum sentence laws in a concurring
opinion in Morrisey. Arbour J. expressed the concern that the mandatory minimum sentences for certain offences
would inevitably be declared unconstitutional if judges had no discretion to grant exemptions to avoid
unconstitutional results in unusual cases.

[43]     Lower courts have taken contradictory positions on the availability of constitutional exemptions from
mandatory minimum sentences. The Ontario and New Brunswick courts of appeal have held against the availability
of constitutional exemptions from mandatory sentence laws: … By contrast, such exemptions have been granted in
Saskatchewan and the Northwest and Yukon Territories and have been recognized in obiter in British Columbia: ….
The Quebec Court of Appeal has expressed both positive and negative views on the question in obiter: …

[44]     Constitutional exemptions have been recognized and discussed in other contexts. In Osborne v. Canada
(Treasury Board), [1991] 2 S.C.R. 69, Wilson J. suggested that once a court finds a legislative provision to violate
the Charter, it has no alternative but to strike it down under s. 52 of the Constitution Act, 1982. To do otherwise
would be to leave ―the legislation in its pristine over-inclusive form outstanding on the books‖ (p. 77). On the other
hand, in R. v. Rose, [1998] 3 S.C.R. 262, L‘Heureux-Dubé J. opined that s. 24(1) of the Charter enables a court to
grant a constitutional exemption from legislation that is ―constitutional in its general application‖ if an
unconstitutional result would otherwise occur in a particular case (para. 66).

[45]     In R. v. Seaboyer, [1991] 2 S.C.R. 577, the majority, per McLachlin J., suggested that a constitutional
exemption cannot be used to remedy a constitutional defect in a provision that Parliament intended to be mandatory,
because allowing an exemption would ―import into the provision an element which the legislature specifically chose
to exclude — the discretion of the trial judge‖(p. 628). It was also noted that constitutional exemptions could in
principle remove all recourse to s. 52(1), rendering it redundant.

[46]      However, in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, this Court
recognized the availability of a constitutional exemption granted as an interim remedial measure alongside a
suspended declaration of invalidity under s. 52(1). Although the Court declined to grant a constitutional exemption,
it recognized that a court may grant such an exemption in order to relieve the claimant of the continued burden of
the unconstitutional law during the period that the striking out remedy is suspended. The majority emphasized the
ancillary nature of this remedial exemption and refused to consider expanding the remedy to a stand-alone
constitutional exemption.

[47]    In summary, the majority of this Court in Seaboyer has commented critically on the use of constitutional
exemptions as a stand-alone remedy in the case of mandatory laws generally, a view supported by Wilson J. in
Osborne and consistent with the majority‘s reasoning in Corbiere. In Smith, Le Dain J. rejected their use in the
context here at issue, mandatory minimum sentence laws. On the other side of the issue are the remarks of
L‘Heureux-Dubé and Arbour JJ. in their respective concurring opinions in Rose and Morrisey.

[48]     I conclude that while the availability of constitutional exemptions for mandatory minimum sentencing laws
has not been conclusively decided, the weight of authority thus far is against them and sounds a cautionary note.

(2)    Intrusion on the Role of Parliament

[49]      Section 52(1) grants courts the jurisdiction to declare laws of no force and effect only ―to the extent of the
inconsistency‖ with the Constitution. It follows that if the constitutional defect of a law can be remedied without
striking down the law as a whole, then a court must consider alternatives to striking down. Examples of alternative
remedies under s. 52 include severance, reading in and reading down. Constable Ferguson is proposing a
constitutional exemption under s. 24(1) as an additional tool for minimizing interference with Parliament‘s
legislative role when a court must grant a remedy for a constitutionally defective provision.




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[50]      On the other hand, it has long been recognized that in applying alternative remedies such as severance and
reading in, courts are at risk of making inappropriate intrusions into the legislative sphere. An alternative to striking
down that initially appears to be less intrusive on the legislative role may in fact represent an inappropriate intrusion
on the legislature‘s role. This Court has thus emphasized that in considering alternatives to striking down, courts
must carefully consider whether the alternative being considered represents a lesser intrusion on Parliament‘s
legislative role than striking down. Courts must thus be guided by respect for the role of Parliament, as well as
respect for the purposes of the Charter: … These principles apply with equal force to the proposed alternative
remedy of the constitutional exemption. In this case, the effect of granting a constitutional exemption would be to
so change the legislation as to create something different in nature from what Parliament intended. It follows that a
constitutional exemption should not be granted.

[51]      When a court opts for severance or reading in as an alternative to striking down a provision, it does so on
the assumption that had Parliament been aware of the provision‘s constitutional defect, it would likely have passed it
with the alterations now being made by the court by means of severance or reading in. For instance, as this Court
noted in Schachter, the test for severance ―recognizes that the seemingly laudable purpose of retaining the parts of
the legislative scheme which do not offend the Constitution rests on an assumption that the legislature would have
passed the constitutionally sound part of the scheme without the unsound part‖ (p. 697). If it is not clear that
Parliament would have passed the scheme with the modifications being considered by the court — or if it is
probable that Parliament would not have passed the scheme with these modifications — then for the court to make
these modifications would represent an inappropriate intrusion into the legislative sphere. In such cases, the least
intrusive remedy is to strike down the constitutionally defective legislation under s. 52. It is then left up to
Parliament to decide what legislative response, if any, is appropriate.

[52]      It follows that we must ask whether granting a constitutional exemption for a mandatory minimum sentence
would represent a lesser intrusion on Parliament‘s legislative role than striking it down. In my view, the answer to
this question is no, because allowing courts to grant constitutional exemptions for mandatory minimum sentences
directly contradicts Parliament‘s intent in passing mandatory minimum sentence legislation.

[53]     A constitutional exemption has the effect of conferring on judges a discretion to reject the mandatory
minimum sentence prescribed by Parliament. The mandatory minimum applies, unless the judge concludes that its
application constitutes unjustifiable cruel and unusual punishment and that it therefore should not apply.

[54]       The intention of Parliament in passing mandatory minimum sentence laws, on the other hand, is to remove
judicial discretion to impose a sentence below the stipulated minimum. Parliament must be taken to have
specifically chosen to exclude judicial discretion in imposing mandatory minimum sentences, just as it was taken to
have done in enacting the rape shield provisions struck down in Seaboyer. Parliament made no provision for the
exercise of judicial discretion in drafting s. 236(a), nor did it authorize any exceptions to the mandatory minimum.
There is no provision permitting judges to depart from the mandatory minimum, even in exceptional cases where it
would result in grossly disproportionate punishment. Parliament has cast the prescription for the minimum
four-year prison sentence here at issue in clear unambiguous terms. Parliament must be taken to have intended what
it stated: that all convictions for manslaughter with a firearm would be subject to a mandatory minimum sentence of
four years imprisonment. The law mandates a floor below which judges cannot go. To permit judges to go below
this floor on a case-by-case basis runs counter to the clear wording of the section and the intent that it evinces.

[55]      In granting a constitutional exemption, a judge would be undermining Parliament‘s purpose in passing the
legislation: to remove judicial discretion and to send a clear and unequivocal message to potential offenders that if
they commit a certain offence, or commit it in a certain way, they will receive a sentence equal to or exceeding the
mandatory minimum specified by Parliament. The discretion that a constitutional exemption would confer on
judges would violate the letter of the law and undermine the message that animates it.

[56]     It is thus clear that granting a constitutional exemption from a mandatory minimum sentence law that
results in an unconstitutional sentence goes directly against Parliament‘s intention. To allow constitutional
exemptions for mandatory minimum sentences is, in effect, to read in a discretion to a provision where Parliament
clearly intended to exclude discretion. If it would be inappropriate to read in such a discretion under s. 52, then
necessarily it would be inappropriate to allow judges to grant constitutional exemptions having the same effect
under s. 24(1). It cannot be assumed that Parliament would have enacted the mandatory minimum sentencing


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scheme with the discretion that allowing constitutional exemptions would create. For the Court to introduce such a
discretion would thus represent an inappropriate intrusion into the legislative sphere.

[57]     I conclude that these considerations are sufficient to exclude constitutional exemptions as an appropriate
remedy for unconstitutional mandatory minimum sentences. In the absence of any provision providing for
discretion, a court that concludes that a mandatory minimum sentence imposes cruel and unusual punishment in an
exceptional case before it is compelled to declare the provision invalid.

(3)    The Remedial Scheme of the Charter

[58]     As I noted at the outset, remedies for breaches of the Charter are governed by s. 24(1) of the Charter and s.
52(1) of the Constitution Act, 1982.

[59]     When a law produces an unconstitutional effect, the usual remedy lies under s. 52(1), which provides that
the law is of no force or effect to the extent that it is inconsistent with the Charter. A law may be inconsistent with
the Charter either because of its purpose or its effect: R. v. Big M Drug Mart Ltd., [1985]1 S.C.R. 295; R. v.
Edwards Books and Art Ltd., [1986] 2 S.C.R. 713. Section 52 does not create a personal remedy. A claimant who
otherwise has standing can generally seek a declaration of invalidity under s. 52 on the grounds that a law has
unconstitutional effects either in his own case or on third parties: …. The jurisprudence affirming s. 52(1) as the
appropriate remedy for laws that produce unconstitutional effects is based on the language chosen by the framers of
the Charter: see Sankoff, at p. 438.

[60]      Section 24(1), by contrast, is generally used as a remedy, not for unconstitutional laws, but for
unconstitutional government acts committed under the authority of legal regimes which are accepted as fully
constitutional: ….. The acts of government agents acting under such regimes are not the necessary result or ―effect‖
of the law, but of the government agent‘s applying a discretion conferred by the law in an unconstitutional manner.
Section 52(1) is thus not applicable. The appropriate remedy lies under s. 24(1).

[61]      It thus becomes apparent that ss. 52(1) and 24(1) serve different remedial purposes. Section 52(1) provides
a remedy for laws that violate Charter rights either in purpose or in effect. Section 24(1), by contrast, provides a
remedy for government acts that violate Charter rights. It provides a personal remedy against unconstitutional
government action and so, unlike s. 52(1), can be invoked only by a party alleging a violation of that party‘s own
constitutional rights: Big M; R. v. Edwards, [1996] 1 S.C.R. 128. Thus this Court has repeatedly affirmed that the
validity of laws is determined by s. 52 of the Constitution Act, 1982, while the validity of government action falls to
be determined under s. 24 of the Charter: Schachter; R. v. 974649 Ontario Inc, [2001] 3 S.C.R. 575, 2001 SCC 81.
We are here concerned with a law that is alleged to violate a Charter right. This suggests that s. 52(1) provides the
proper remedy.

[62]     It is argued that s. 24(1), while normally applicable to government acts, can also be used to provide a stand-
alone remedy for the unconstitutional effects of mandatory minimum sentence laws. The wording of s. 24(1) is
generous enough to permit this, it is argued, conferring a discretion on judges to grant ―such remedy as the court
considers appropriate and just in the circumstances‖.

[63]      The jurisprudence of this Court allows a s. 24(1) remedy in connection with a s. 52(1) declaration of
invalidity in unusual cases where additional s. 24(1) relief is necessary to provide the claimant with an effective
remedy: R. v. Demers, [2004] 2 S.C.R. 489, 2004 SCC 46. However, the argument that s. 24(1) can provide a stand-
alone remedy for laws with unconstitutional effects depends on reading s. 24(1) in isolation, rather than in
conjunction with the scheme of the Charter as a whole, as required by principles of statutory and constitutional
interpretation. When s. 24(1) is read in context, it becomes apparent that the intent of the framers of the Constitution
was that it function primarily as a remedy for unconstitutional government acts.

[64]     The highly discretionary language in s. 24(1), ―such remedy as the court considers appropriate and just in
the circumstances‖, is appropriate for control of unconstitutional acts. By contrast, s. 52(1) targets the
unconstitutionality of laws in a direct non-discretionary way: laws are of no force or effect to the extent that they
are unconstitutional.



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[65]      The presence of s. 52(1) with its mandatory wording suggests an intention of the framers of the Charter
that unconstitutional laws are deprived of effect to the extent of their inconsistency, not left on the books subject to
discretionary case-by-case remedies: see Osborne, per Wilson J. In cases where the requirements for severance or
reading in are met, it may be possible to remedy the inconsistency judicially instead of striking down the impugned
legislation as a whole: Vriend; Sharpe. Where this is not possible — as in the case of an unconstitutional mandatory
minimum sentence — the unconstitutional provision must be struck down. The ball is thrown back into Parliament‘s
court, to revise the law, should it choose to do so, so that it no longer produces unconstitutional effects. In either
case, the remedy is a s. 52 remedy that renders the unconstitutional provision of no force or effect to the extent of its
inconsistency. To the extent that the law is unconstitutional, it is not merely inapplicable for the purposes of the case
at hand. It is null and void, and is effectively removed from the statute books.

[66]      As pointed out in Seaboyer, if the unconstitutional effects of laws are remediable on a case-by-case basis
under s. 24(1), in theory all Charter violations could be addressed in this manner, leaving no role for s. 52(1). To
meet this concern, it is suggested that s. 24(1) should only be used in the case of laws that usually produce
constitutional results and only rarely produce an unconstitutional effect. The mandatory minimum sentence
provision in s. 236(a) is said to be such a law. However one defines the ―rare‖ case, discussed more fully below, the
risk is that the role intended for s. 52(1) would be undermined and that laws that should be struck down — over-
inclusive laws that pose a real risk of unconstitutional treatment of Canadians — would remain on the books,
contrary to the intention of the framers of the Charter.

(4)    The Rule of Law

[67]      Constable Ferguson‘s principal argument for constitutional exemptions, as we have seen, is an appeal to
flexibility. Yet this flexibility comes at a cost: constitutional exemptions buy flexibility at the cost of undermining
the rule of law.

[68]      The principles of constitutionalism and the rule of law lie at the root of democratic governance: Reference
re Secession of Quebec, [1998] 2 S.C.R. 217. It is fundamental to the rule of law that ―the law must be accessible
and so far as possible intelligible, clear and predictable‖: Lord Bingham, ―The Rule of Law,‖ (2007), 66 Cambridge
L.J. 67, at p. 69. Generality, promulgation, and clarity are among the essential elements of the ―morality that makes
law possible‖: Lon L. Fuller, The Morality of Law, (2nd ed. 1969), at pp. 33-39.

[69]     Constitutional exemptions for mandatory minimum sentence laws raise concerns related to the rule of law
and the values that underpin it: certainty, accessibility, intelligibility, clarity and predictability.

[70]      As noted in the last section, a constitutional exemption under s. 24(1) is a personal remedy. The remedy
proposed by Constable Ferguson is thus distinct from a s. 52 remedy that reads in an exception for a well-defined
class of situations — as, for instance, the remedy in Sharpe. When a constitutional exemption is granted, the
successful claimant receives a personal remedy under s. 24(1), but the law remains on the books, intact. As Wilson
J. put it in Osborne, the legislation remains as enacted ―in its pristine over-inclusive form‖ (p. 77). The mere
possibility of such a remedy thus necessarily generates uncertainty: the law is on the books, but in practice, it may
not apply. As constitutional exemptions are actually granted, the law in the statute books will in fact increasingly
diverge from the law as applied.

[71]      Constitutional exemptions from mandatory minimum sentences leave the law uncertain and unpredictable,
as Le Dain J. pointed out in Smith. It is up to judges on a case-by-case basis to decide when to strike down a
minimum sentence that is inconsistent with the Charter, and when to grant an individual exemption under s. 24(1).
But the Charter is silent on how a judge should make this decision — the decision, literally, of whether the law
stands or falls. In theory, all violations could be remedied under s. 24(1), leaving no role for s. 52(1). The only
option would be to introduce a meta-rule as to when a s. 24(1) exemption is available and when a declaration of
invalidity should be made under s. 52(1). How such a rule should be fashioned — where the line should be drawn
— is far from clear. Constitutional exemptions, it is suggested, should be confined to laws that usually operate
constitutionally and only occasionally result in constitutional violations. But how is the judge to decide whether the
case before her is rare? The bright line required for constitutional certainty is elusive.




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[72]     The divergence between the law on the books and the law as applied — and the uncertainty and
unpredictability that result — exacts a price paid in the coin of injustice. First, it impairs the right of citizens to
know what the law is in advance and govern their conduct accordingly — a fundamental tenet of the rule of law.
Second, it risks over-application of the law; as Le Dain J. noted in Smith, the assumed validity of the law may
prejudice convicted persons when judges must decide whether to apply it in particular cases. Third, it invites
duplication of effort. The matter of constitutionality would not be resolved once and for all as under s. 52(1); in
every case where a violation is suspected, the accused would be obliged to seek a constitutional exemption. In so
doing, it creates an unnecessary barrier to the effective exercise of the convicted offender‘s constitutional rights,
thereby encouraging uneven and unequal application of the law.

[73]      A final cost of constitutional exemptions from mandatory minimum sentence laws is to the institutional
value of effective law making and the proper roles of Parliament and the courts. Allowing unconstitutional laws to
remain on the books deprives Parliament of certainty as to the constitutionality of the law in question and thus of the
opportunity to remedy it. Legislatures need clear guidance from the courts as to what is constitutionally permissible
and what must be done to remedy legislation that is found to be constitutionally infirm. In granting constitutional
exemptions, courts would be altering the state of the law on constitutional grounds without giving clear guidance to
Parliament as to what the Constitution requires in the circumstances: Rosenberg and Perrault, at p. 391. Bad law,
fixed up on a case-by-case basis by the courts, does not accord with the role and responsibility of Parliament to enact
constitutional laws for the people of Canada.

V. Conclusion

[74]     I conclude that constitutional exemptions should not be recognized as a remedy for cruel and unusual
punishment imposed by a law prescribing a minimum sentence. If a law providing for a mandatory minimum
sentence is found to violate the Charter, it should be declared inconsistent with the Charter and hence of no force
and effect under s. 52 of the Constitution Act, 1982.

[75]        I would dismiss the appeal and answer the constitutional questions as follows:

1. Does the mandatory minimum sentence prescribed by s. 236(a) of the Criminal Code, R.S.C. 1985, c. C-46,
constitute cruel and unusual punishment in the appellant‘s case, in violation of s. 12 of the Canadian Charter of
Rights and Freedoms?

Answer: No.

2. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and
democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?

Answer: It is not necessary to answer the question.

3. If the answer to Question 2 is ―no‖, does Canadian law recognize the availability of a constitutional exemption on
a case-by-case basis from the statutory mandatory minimum sentence set out in s. 236(a) of the Criminal Code,
R.S.C. 1985, c. C-46?

Answer: No. ...................................................................................................................................... Appeal dismissed.




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                                                                  Meek v. Fleming

[1961] 2 QB 366 (CA)

Appeal from Streatfeild J and a jury.

         Motion for leave to adduce fresh evidence.

          Alan Sidney Charles Meek, a press photographer, the plaintiff in an action for damages for alleged assault
and wrongful imprisonment against Richard Fleming as a chief inspector of the Metropolitan Police, appealed from
a judgment entered for the defendant on the verdict of a jury and asked for a new trial on the grounds, inter alia, of
misdirection by the judge and that the verdict was against the weight of the evidence. Paragraph (6) of his notice of
appeal was as follows: ―That at the trial the rank and status of the defendant was by implication represented to be
that of a chief inspector when in fact between the date of the matters complained of in the action and the date of the
trial he had been reduced to the rank of a station sergeant by reason of misconduct and that the credit of the parties
was a crucial issue at the trial.‖

…

[HOLROYD PEARCE LJ: The clearest evidence that it would have had an impact is the trouble that was taken to
conceal it.]

          There is no duty to disclose the defendant‘s character or rank and no rule concerning his dress in a civil
court. There is a rule that in a criminal court a police officer must appear in uniform, but it is not always obeyed. In
the civil court he is sued as a person and his rank and character are quite irrelevant. To address a police officer as
―Mr.‖ is common practice among advocates. Even if the court had assumed that the defendant was of the highest
character and had acted on that assumption, it is not the duty of counsel to correct that assumption. The belief that
he was a chief inspector was irrelevant at the trial, and at no stage was the evidence weighted in favour of the
defendant‘s behaviour by reason of his accepted rank.

HOLROYD PEARCE LJ: The plaintiff appeals from the judgment of Streatfeild J sitting with a jury given on
October 21, 1960, after a trial lasting five days. The jury, after an absence of four hours, gave answers to certain
questions on which the judge dismissed the action and entered judgment for the defendant. The plaintiff by his
notice of appeal complains that the verdict was against the weight of evidence, and makes certain unsubstantial
criticisms of the summing-up. These have not been stressed, and in my judgment no criticism can be made of the
conduct of the judge or the verdict of the jury on the evidence before them. The real ground of this appeal is stated
in the notice of appeal as follows: ―(6) That at the trial the rank and status of the defendant was by implication
represented to be that of a chief inspector when in fact between the date of the matters complained of in the action
and the date of the trial he had been reduced to the rank of a station sergeant by reasons of misconduct and that the
credit of the parties was a crucial issue at the trial.‖ A further notice of motion for leave to give fresh evidence
alleges that on the question of credit the defendant deceived or misled the court, and thereby occasioned a
miscarriage of justice.

         The plaintiff was claiming damages for assault and wrongful imprisonment in respect of an incident that
happened on Guy Fawkes night, November 5, 1958. There was disorderly crowd in Trafalgar Square, and many
police officers had been detailed to deal with it. They made a number of arrests that night, and removed the arrested
persons in a police tender to Cannon Row police station where they charged them and then, as a rule, released them.
The defendant was the chief inspector at Cannon Row police station, and was actively engaged in helping to control
the disorder in Trafalgar Square.

         The plaintiff, a press photographer with a good record, was there with his camera for the purpose of taking
photographs. At about 9:40 p.m. the defendant arrested him on a charge of obstructing the police, and took him in a
tender to Cannon Row police station where he was kept in a cell until 1:30 a.m.




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          If the plaintiff‘s story was correct, the defendant arrested him without proper cause, used considerable
violence to him which caused physical injury, and without justification locked him up for some hours instead of
charging him straight away and releasing him. If the defendant‘s story was correct, he acted with propriety; he was
justified in arresting the plaintiff, and the subsequent violence (which was far less than the plaintiff alleged) was
wholly occasioned by the plaintiff‘s own violence and resistance.

          On November 17, 1958, the plaintiff issued the writ in this action. On December 17 he appeared at the
magistrates‘ court and was convicted of obstructing the police and fined £5. Another charge was dismissed. On
December 16, 1959, while this action was pending, certain events occurred which at the trial were unknown to the
plaintiff‘s advisers, and which they had no reason to know or to suspect. These events were deliberately concealed
at the trial by the defendant and his legal advisers. It is on this concealment that the plaintiff relies in this appeal.
He asks for a new trial in order that these facts may be proved by fresh evidence.

          The facts have been agreed between the parties for the purpose of this appeal in the following terms: ―(1)
At the date when the defendant gave evidence at the trial of the action, his true rank in the Metropolitan Police Force
was station sergeant. (2) The defendant was reduced from rank of chief inspector to station sergeant on December
16, 1959. (3) On December 16, 1959, the defendant appeared before a disciplinary board on the following charges:
(i) Acting in a manner prejndicial to discipline by being a party to an arrangement with a police constable, whereby
that officer purported to have arrested a street bookmaker on October 26, 1959, when in fact you were the officer
who made the arrest. (ii) Without good and sufficient cause did omit promptly and diligently to attend to a matter
which was your duty as a constable, that is to say having arrested … for street betting on October 26, 1959, you did
not attend the hearing of the case against him at Thames Metropolitan Magistrates‘ Court on October 27, 1959.‖

          The defendant was reduced in rank to station sergeant on each charge, hut on appeal to the commissioner
on December 30, the punishment on the second charge was reduced to a reprimand, but there was no variation in the
first punishment.

          It is conceded that those facts were known to the defendant‘s legal advisers and his counsel, and that as a
matter of deliberate policy they were not put before the court. A letter written by the defendant‘s solicitor on
November 21, 1960, pending the appeal, says: ―The learned Queen‘s Counsel instructed by me was throughout, as I
believe you are aware, in full possession of all the facts relating to my client‘s past and present status and the
reasons for his reduction in rank, and conducted the case in full knowledge of these facts in the manner he felt was
consistent with his duty to his client and the court, and he is fully prepared to defend and justify his handling of the
case at the proper time if called upon to do so.‖

         It having been decided not to reveal these facts, the following things occurred at the trial. The defendant
attended the trial not in uniform, but in plain clothes, whereas all the other police witnesses were in uniform. Thus
there was no visible sign of the defendant‘s altered status. He was constantly addressed by his counsel as ―Mr.‖ and
not by his rank of sergeant. Counsel tells us that he would so address a sergeant in the normal case. When the
defendant entered the witness-box, he was not asked his name and rank in the usual manner. No suspicions were
aroused since no one had any reason to suspect. The plaintiff‘s counsel, however, and the judge frequently
addressed the defendant, or referred to him, as ―inspector‖ or ―chief inspector,‖ and nothing was done to disabuse
them.

         The defendant started his evidence with a brief summary of his career up to the time when he was chief
inspector at Cannon Row police station, hut no reference was made to his reduction in rank. In cross-examination he
was asked: ―You are a chief inspector, and you have been in the force, you told us, since 1938? (A) Yes, that is
true.‖ That answer was a lie. Later: ―(Q) You realise, as chief inspector, the importance of the note being accurate?
(A) The importance of it conveying to me what I want to give in evidence.‖ He was asked further: ―Let us
understand this. You are a chief inspector. How old are you? (A) I am forty-six years of age.‖ And again: ―(Q) I
am not asking you whether you took part in the inquiries, but whether you as a responsible and senior adult man-
never mind about your being a chief inspector-bad no anxiety about this case, no concern or interest? (A) No. I can
only repeat I have nothing to fear.‖

       The judge referred to the defendant as ―inspector‖ or ―chief inspector Fleming‖ many times in his
summing-up to the jury. It is clear that he reasonably considered that the defendant‘s rank and status were relevant


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on credibility in a case where there was oath against oath, and where there was a question of the defendant‘s conduct
in the course of his duty. No doubt he felt what Singleton LJ expressed in Mohahir Ali v. Ellmore, [1953] 1 WLR
1300, when, in dealing with a matter concerning evidence, he said: ―It appears to me that that evidence was
irrelevant and unnecessary. The fact that a witness who is also a defendant is a superintendent of Leeds City Policy
shows that he is of good standing, and that he has the confidence of his superior officers.‖

           Nor was the defendant‘s counsel prepared to forgo the advantage to be derived from the status in the police
force of his witnesses in general. The parties have, fortunately, in the interests of economy been able to use the
reports of the case in ―The Times‖ newspaper. These show that in his opening speech for the defence, counsel
stated that the jury had not yet had an opportunity of listening to persons against whom it was at times fashionable to
make wild hysterical allegations, but who could not have reached their positions unless they had shown to those who
controlled the Metropolitan Police a substantial degree of responsibility. They were not concerned here with some
newcomer to the force who had only just finished his course, and was out on the street full of enthusiasm to arrest
the first person he could.

         ―The Times‖ report of the final speech of defendant‘s counsel shows that he said in reference to the
allegations of the plaintiff: ―That was un-English, and not what the jury would expect of any police officer who had
passed through the sieve, been trained and risen to any rank in the Metropolitan Police.‖ He then went on to contrast
unfavourably the plaintiff‘s background in Fleet Street where ―words come out in very large letters, and the range of
adjectives and description is so wide as to make us callous.‖ I accept from counsel that he was intending to refer to
the generality of his seven or eight witnesses, all of whom had attained some rank above that of constable.
Nevertheless, such references must inevitably have connoted in the minds of judge and jury a reference to the status
of the defendant, who was the leading person in the case, and held (in their erroneous belief) the highest rank of all
the witnesses.

          The fact that the defendant‘s advisers were prepared to act as they did showed the great importance which
they attached to the facts concealed. If one leaves aside for the moment any question of ethics, the hazards of such a
course were extremely great. With so many police witnesses who might well know the truth (since the defendant‘s
demotion was circulated in police orders) the chance of somebody in cross-examination referring to the defendant
by his present rank of sergeant, or letting the truth out in some other way, was not negligible. Had that occurred, or
had the plaintiffs counsel known the facts, and elicited them in cross-examination, it seems very unlikely that the
jury would accept the defendant‘s case when they found how they had been deceived. Even without hawing the
facts, the jury took four hours for their deliberations; and since the plaintiffs evidence was, broadly speaking, that of
one against so many, one must, I think, conclude that he did well in the witness-box.

          How then does the matter stand now that the truth has come out? This court is rightly loth to order a new
trial on the ground of fresh evidence. Interest reipublicae ut sit finis litium. The cases show that this court has given
great weight to that maxim. There would be a constant succession of retrials if judgments were to be set aside
merely because something fresh that might have been material has come to light. In the case of fresh evidence
relating to an issue in the case, the court will not order a new trial unless such evidence would probably have an
important influence on the result of the case, though such evidence need not be decisive: Rex v. Copestake, Ex parte
Wilkinson, [1927] 1 KB 468, 477 (CA) per Scrutton LJ, and Ladd v. Marshall, [1954] 1 WLR 1489 (CA). Such
evidence must also, of course, be apparently credible and such that it could not have been obtained with due
diligence, [1954] 1 WLR 1489, 1491. But in the present case the fresh evidence is agreed, and it could not have
been found out with due diligence since there was no reason to suspect it. In the present case, therefore, these two
latter considerations are not in issue.

          Where, however, the fresh evidence does not relate directly to an issue, but is merely evidence as to the
credibility of an important witness, this court applies a stricter test. It will only allow its admission (if ever) where
―the evidence is of such a nature and the circumstances of the case are such that no reasonable jury could be
expected to act upon the evidence of the witness whose character had been called in question‖ (per Tucker LJ in
Braddock v. Tillotson‟s Newspapers Ltd., [1950] 1 KB 47, 53) or ―where the court is satisfied that the additional
evidence must have led a reasonable jury to a different conclusion from that actually arrived at in the case‖: per
Cohen LJ. Mr. Neville Faulks claims that the fresh evidence in the present case satisfies even that strict test. But
whether that be so, it is not necessary for us to decide.




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         Where the judge and jury have been misled, another principle makes itself felt. Lord Esher MR in Praed v.
Graham (1889), 24 QBD 53, 55, said: ―If the court can see that the jury in assessing damages have been guilty of
misconduct, or made some gross blonder, or have been misled by the speeches of the counsel, those are undoubtedly
sufficient grounds for interfering with the verdict.‖

         In Tombling v. Universal Bulb Co. Ltd., [1951] WN 247 it was sought to adduce fresh evidence on the
ground that there had not been revealed to the judge the fact that a highly material witness was at the time of the trial
serving a prison sentence for a motoring offence. Counsel had allowed him to give in evidence a residential address
which was his normal home, and asked him questions which indicated that he had in the past held a responsible
position. The appeal was dismissed; but Singleton LJ described the case as ‘hear the line.‖ Denning LJ there said:
―This raises an important question of professional duty. I do not doubt that, if a favourable decision has been
obtained by any improper conduct of the successful party, this court will always be ready to grant a new trial. The
duty of counsel to his client in a civil case—or in defending an accused person—is to make every honest endeavour
to succeed. He must not, of course, knowingly mislead the court, either on the facts or on the law, but, short of that,
he may put such matters .......... as in his discretion he thinks will be most to the advantage of his client.‖ I
respectfully agree with those words. He then discussed the facts of that case, and came to the conclusion that there
had been nothing improper in the conduct of the case for the plaintiffs. In that case the failure to reveal was not a
premeditated tine of conduct. Nor was conviction for a motoring offence so relevant in credibility as the demotion
of a chief inspector (who is a party to the case) for an offence which consisted in deceiving a court of law as to the
accurate facts relating to an arrest. There is no authority where the facts have been at all similar to those of the
present case, hut in my judgment the principles on which we should act are clear.

          Where a party deliberately misleads the court in a material matter, and that deception has probably tipped
the scale in his favour (or even, as I think, where it may reasonably have done so), it would be wrong to allow him to
retain the judgment thus unfairly procured. Finis litium is a desirable object, hut it must not be sought by so great a
sacrifice of justice, which is and must remain the supreme object. Moreover, to allow the victor to keep the spoils so
unworthily obtained would be an encouragement to such behaviour, and do even greater harm than the
multiplication of trials.

          In every case it must be a question of degree, weighing one principle against the other. In this case it is
clear that the judge and jury were misled on an important matter. I appreciate that it is very hard at times for the
advocate to see his path clearly between failure in his duty to the court, and failure in his duty to his client. I accept
that in the present case the decision to conceal the facts was not made lightly, but after anxious consideration. But in
my judgment the duty to the court was here unwarrantably subordinated to the duty to the client. It is no less
surprising that this should be done when the defendant is a member of the Metropolitan Police Force on whose
integrity the public are accustomed to rely.

         It was argued that there were several other police witnesses against the plaintiff‘s story; that although part
of the issue depended on the evidence of the parties alone, the greater part of the defence depended on other
witnesses than the defendant, and that therefore the concealment did not have any substantial result. But since the
defendant and his advisers thought fit to take so serious a step, they must, in the light of their own intimate
knowledge of their case, have regarded the concealment as being of overwhelming importance to their success.
Therefore I am not prepared to countenance their present argument that it may have made no difference to the result.

          It was argued that the defendant was justified in that a party need not reveal something to his discredit; hut
that does not mean that he can by implication falsely pretend (where it is a material matter) to a rank and status that
are not his, and, when he knows that the court is so deluded, foster and confirm that delusion by answers such as the
defendant gave. Suggestio falsi went hand in hand with suppressio veri. It may well be that it was not so clear in
prospect as it is in retrospect how wide the web of deceit would be woven before the verdict came to be given. But
in the event it spread over all the evidence of the defendant. It affected the summing-up of the judge, and it must
have affected the deliberations of the jury. The defendant and his legal advisers, and probably some at least of his
witnesses, on the one hand, were aware of the facts, and intent not to reveal them, in order that on the other hand the
plaintiff and his counsel and the jury and the judge might remain in ignorance, and that the defendant might be
thereby enabled to masquerade as a chief inspector of unblemished reputation enjoying such advantage as that status
and character would give him at the trial. It would be an intolerable infraction of the principles of justice to allow




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the defendant to retain a verdict thus obtained. I would, accordingly, allow the appeal with costs, and order a new
trial.

WILLMER LJ: In the present case there is no doubt that the course taken, which had the effect of deceiving the
court, was taken deliberately. Counsel for the defendant has so informed us with complete candour. I accept his
assurance that the decision was proper in all the circumstances. But for my part I am in no doubt that it was not
taken lightly, hut after careful consideration, and in the belief that the course taken was a wrong decision. I would
venture to follow the example of Singleton LJ in Tombling‟s case in quoting from Lord Macmillan on ―The Ethics
of Advocacy.‖ This is what Lord Macmillan said: ―In the discharge of his office the advocate has a duty to his
client, a duty to his opponent, a duty to the court, a duty to the State and a duty to himself.‖ It seems to me that the
decision which was taken involved insufficient regard being paid to the duty owed to the court and to the plaintiff
and his advisers.

         The result of the decision that was taken was that the trial proceeded in a way that it should not have done.
Where the court has been thus deceived in relation to what I conceive to be a matter of vital significance, I think it
would be a miscarriage of justice to allow a verdict obtained in this way to stand. For these additional reasons, as
well as for the reasons already stated by my Lord, I agree that this appeal must be allowed.

PEARSON LJ: It was decided, after very careful consideration, that the defendant‘s case should be conducted in
such a way as not to reveal to the judge and jury the fact that the defendant had been demoted from the rank of chief
inspector to the rank of station sergeant. Well-devised and effective steps were taken to carry out the decision, with
the consequences that the defendant appeared to the judge and jury throughout the trial as a person still holding the
rank of chief inspector, and therefore as a highly credit-worthy person, whereas in fact he had been demoted for an
offence involving deception of a court. Whatever erroneous analogies may have prompted the decision, which was
well intentioned, it was, in my view, utterly wrong, and it had deplorable results. There was, in the result, at the trial
of this action a deception of the court, and the defendant in cross-examination was giving uncandid (and at one point
false) evidence in order to preserve the concealment of the truth.

        Having regard to the deception of the court and the materiality of the fresh evidence, I agree that the appeal
should be allowed with costs, and that there should be an order for a new trial.

DURAND QC: I indicated last week in the course of my argument before your Lordships that I took responsibility
for the decision; I hope that the words I used then left the court under no misunderstanding as to my personal
responsibility. It is right that I should say as emphatically and clearly as I can that the decision not to make
disclosure of the defendant‘s change of status was mine, and mine alone. Having come to the conclusion that this
course was justifiable, I determined and dictated the policy which was thereafter followed during the course of the
trial. Neither my learned junior counsel, Mr. Stabb, nor my instructing solicitor was responsible for initiating or
pursuing that policy, and indeed they expressed their disapproval of it. I thought it right, having regard to the
observations made last week, to make that statement before your Lordships in open court, and I am very grateful to
your Lordships for allowing me to make it.




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                                           British Columbia v. Imperial Tobacco Canada

2005 SCC 49

The judgment of the Court was delivered by

 1       MAJOR J. — The Tobacco Damages and Health Care Costs Recovery Act, S.B.C. 2000, c. 30 (the
 ―Act‖), authorizes an action by the government of British Columbia against a manufacturer of tobacco products
 for the recovery of health care expenditures incurred by the government in treating individuals exposed to those
 products. Liability hinges on those individuals having been exposed to tobacco products because of the
 manufacturer‘s breach of a duty owed to persons in British Columbia, and on the government of British
 Columbia having incurred health care expenditures in treating disease in those individuals caused by such
 exposure.

 2       These appeals question the constitutional validity of the Act. The appellants, each of which was sued by
 the government of British Columbia pursuant to the Act, challenge its constitutional validity on the basis that it
 violates: (1) territorial limits on provincial legislative jurisdiction; (2) the principle of judicial independence; and
 (3) the principle of the rule of law.

 3     For the reasons that follow, the Act is constitutionally valid. The appeals are dismissed, with costs to the
 respondents throughout.

 I.    Background

 A.    The Legislation

 4       The Act, in its entirety, is reproduced in the Appendix. Its essential aspects are summarized below.

 5       Section 2(1) is the keystone of the Act. It reads:

                The government has a direct and distinct action against a manufacturer to recover the cost of
                health care benefits caused or contributed to by a tobacco related wrong.

 6      The terms ―manufacturer‖, ―cost of health care benefits‖ and ―tobacco related wrong‖ are defined in s.
 1(1) of the Act. Their definitions in turn refer to other defined terms. Incorporating the definitions into s. 2, then
 paraphrasing to some degree, the section provides as follows:

                The government has a direct and distinct action against a manufacturer for the present value of
                existing and reasonably expected future expenditures by the government for

                     (a) benefits as defined under the Hospital Insurance Act or the Medicare Protection Act;

                     (b) payments under the Continuing Care Act; and

                     (c) programs, services or benefits associated with disease,

                where

                     (a) such expenditures result from disease or the risk of disease caused or contributed to by
                     exposure to a tobacco product; and

                     (b) such exposure was caused or contributed to by

                         (i) a tort committed in British Columbia by the manufacturer; or



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                            (ii) a breach of a common law, equitable or statutory duty or obligation owed by the
                            manufacturer to persons in British Columbia who have been or might have become
                            exposed to a tobacco product.

 7      Viewed in this light, s. 2(1) creates a cause of action by which the government of British Columbia may
 recover from a tobacco manufacturer money spent treating disease in British Columbians, where such disease
 was caused by exposure to a tobacco product (whether entirely in British Columbia or not), and such exposure
 was caused by that manufacturer‘s tort in British Columbia, or breach of a duty owed to persons in British
 Columbia.

 8      The cause of action created by s. 2(1), besides being ―direct and distinct‖, is not a subrogated claim: s.
 2(2). Nor is it barred by the Limitation Act, R.S.B.C. 1996, c. 266, s. 6(1). Crucially, it can be pursued on an
 aggregate basis — i.e., in respect of a population of persons for whom the government has made or can
 reasonably be expected to make expenditures: s. 2(4)(b).

 9      Where the government‘s claim is made on an aggregate basis, it may use statistical, epidemiological and
 sociological evidence to prove its case: s. 5(b). It need not identify, prove the cause of disease or prove the
 expenditures made in respect of any individual member of the population on which it bases its claim: s. 2(5)(a).
 Furthermore, health care records and related information in respect of individual members of that population are
 not compellable, except if relied upon by an expert witness: s. 2(5)(b) and (c). However, the court is free to
 order the discovery of a ―statistically meaningful sample‖ of the health care records of individual members of
 that population, stripped of personal identifiers: s. 2(5)(d) and (e).

 10     Pursuant to s. 3(1) and (2), the government enjoys a reversed burden of proof in respect of certain
 elements of an aggregate claim. Where the aggregate claim is, like the one brought against each of the
 appellants, to recover expenditures in respect of disease caused by exposure to cigarettes, the reversed burden of
 proof operates as follows. Once the government proves that


         (a)         the defendant manufacturer breached a common law, equitable or statutory duty or obligation it
                     owed to persons in British Columbia who have been or might become exposed to cigarettes;

         (b)         exposure to cigarettes can cause or contribute to disease; and

         (c)         during the manufacturer‘s breach, cigarettes manufactured or promoted by the manufacturer
                     were offered for sale in British Columbia,

 the court will presume that

         (a)         the population that is the basis for the government‘s aggregate claim would not have been
                     exposed to cigarettes but for the manufacturer‘s breach; and

         (b)         such exposure caused or contributed to disease in a portion of the population that is the basis for
                     the government‘s aggregate claim.

 11     In this way, it falls on a defendant manufacturer to show that its breach of duty did not give rise to
 exposure, or that exposure resulting from its breach of duty did not give rise to the disease in respect of which
 the government claims for its expenditures. The reversed burden of proof on the manufacturer is a balance of
 probabilities: s. 3(4).

 12    Where the aforementioned presumptions apply, the court must determine the portion of the government‘s
 expenditures after the date of the manufacturer‘s breach that resulted from exposure to cigarettes: s. 3(3)(a).
 The manufacturer is liable for such expenditures in proportion to its share of the market for cigarettes in British
 Columbia, calculated over the period of time between its first breach of duty and trial: ss. 3(3)(b) and 1(6).




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 13     In an action by the government, a manufacturer will be jointly and severally liable for expenditures
 arising from a joint breach of duty (i.e., for expenditures caused by disease, which disease was caused by
 exposure, which exposure was caused by a joint breach of duty to which the manufacturer was a party): s. 4(1).

 14      Pursuant to s. 10, all provisions of the Act operate retroactively.

 15     The Act is the second British Columbia statute designed to enable the government to sue tobacco
 manufacturers for tobacco-related health care costs that has been challenged on the basis of its constitutionality.
 The Supreme Court of British Columbia struck down the earlier statute, the Tobacco Damages Recovery Act,
 S.B.C. 1997, c. 41, as being in pith and substance legislation in relation to extra-provincial civil rights and
 therefore ultra vires the Legislative Assembly of British Columbia: see JTI-Macdonald Corp. v. British
 Columbia (Attorney General) (2000), 184 D.L.R. (4th) 335, 2000 BCSC 312.

 16      The legislative history of the Act confirms that it was drafted to address concerns about the extra-
 territorial aspects of the earlier statute and to avoid any further challenges with respect to extra-territoriality: see
 Debates of the Legislative Assembly, vol. 20, No. 6, 4th Sess., 36th Parl., June 7, 2000, at p. 16314.

 B.     Procedural History

 17    On January 24, 2001, the Act came into force. On the same day, the government sued 14 entities in the
 tobacco industry in the Supreme Court of British Columbia, pursuant to s. 2 of the Act.

 18     The appellants are among the 14 entities sued by the government. The appellants Imperial Tobacco
 Canada Limited, Rothmans, Benson & Hedges Inc., JTI-Macdonald Corp. and Canadian Tobacco
 Manufacturers‘ Council are Canadian corporations, and were served in British Columbia. The appellants Philip
 Morris Incorporated (now Philip Morris USA Inc.) and Philip Morris International Inc. are incorporated under
 the laws of Virginia and Delaware, respectively, and were served ex juris. The appellant British American
 Tobacco (Investments) Limited is incorporated under the laws of the United Kingdom, and was also served ex
 juris.

 19      The Canadian appellants applied for a declaration that the Act is unconstitutional. The appellants served
 ex juris applied to set aside service on the basis that the Act is unconstitutional, and thus that the government‘s
 actions founded on it were bound to fail.

 20    Throughout the proceedings, the appellants‘ constitutional attack has been essentially tripartite. They
 argue that the Act exceeds the territorial limits on provincial legislative jurisdiction, violates judicial
 independence and infringes the rule of law.

 II.    Judicial History

 A.    Supreme Court of British Columbia (2003), 227 D.L.R. (4th) 323, 2003 BCSC 877

 21      Holmes J. rejected the appellants‘ submissions concerning judicial independence and the rule of law, but
 accepted their submissions concerning extra-territoriality. He concluded that the Act fails to respect territorial
 limits on provincial legislative jurisdiction because, in his view, the exposure to tobacco products giving rise to
 liability is territorially unconfined, and the aim of the Act is recovery of health care costs ―from the tobacco
 industry nationally and internationally‖ (para. 222).

 22     In the result, Holmes J. declared the Act invalid, dismissed the government‘s actions brought pursuant to
 the Act and set aside all ex juris service by the government.

 B.     Court of Appeal for British Columbia (2004), 239 D.L.R. (4th) 412, 2004 BCCA 269

 23    The Court of Appeal for British Columbia allowed the respondents‘ appeals. Lambert, Rowles and
 Prowse JJ.A. each gave reasons concluding that the Act‘s pith and substance is ―Property and Civil Rights in the
 Province‖ within the meaning of s. 92(13) of the Constitution Act, 1867; that the extra-territorial aspects of the



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 Act, if any, are incidental to it; and therefore that the Act is not invalid by reason of extra-territoriality. All
 agreed that the Act does not offend judicial independence or the rule of law.


 24     In the result, the court dismissed the appellants‘ applications for declarations that the Act is invalid, set
 aside Holmes J.‘s orders dismissing the government‘s actions and remitted to the Supreme Court of British
 Columbia the applications of the appellants served ex juris to have service set aside, with such applications to be
 decided on the basis that the Act is constitutionally valid.

 III. Issues

 25      McLachlin C.J. stated the following constitutional questions:

         1.          Is the Tobacco Damages and Health Care Costs Recovery Act, S.B.C. 2000, c. 30, ultra vires the
                     provincial legislature by reason of extra-territoriality?

         2.          Is the Tobacco Damages and Health Care Costs Recovery Act, S.B.C. 2000, c. 30,
                     constitutionally invalid, in whole or in part, as being inconsistent with judicial independence?

         3.          Is the Tobacco Damages and Health Care Costs Recovery Act, S.B.C. 2000, c. 30,
                     constitutionally invalid, in whole or in part, as offending the rule of law?

 IV. Analysis

 A.    Extra-territoriality

 26      Section 92 of the Constitution Act, 1867 is the primary source of provincial legislatures‘ authority to
 legislate. Provincial legislation must therefore respect the limitations, territorial and otherwise, on provincial
 legislative competence found in s. 92. The opening words of s. 92 — ―In each Province‖ — represent a blanket
 territorial limitation on provincial powers. That limitation is echoed in a similar phrase that qualifies a number
 of the heads of power in s. 92: ―in the Province‖.


 27     The territorial limitations on provincial legislative competence reflect the requirements of order and
 fairness underlying Canadian federal arrangements and discussed by this Court in Morguard Investments Ltd. v.
 De Savoye, [1990] 3 S.C.R. 1077, at pp. 1102-3, Hunt v. T&N plc, [1993] 4 S.C.R. 289, at pp. 324-25, and
 Unifund Assurance Co. v. Insurance Corp. of British Columbia, [2003] 2 S.C.R. 63, 2003 SCC 40, at para. 56.
 They serve to ensure that provincial legislation both has a meaningful connection to the province enacting it, and
 pays respect to ―the sovereignty of the other provinces within their respective legislative spheres‖: Unifund, at
 para. 51. See also, generally, R. E. Sullivan, ―Interpreting the Territorial Limitations on the Provinces‖ (1985), 7
 Sup. Ct. L. Rev. 511.

 28      Where the validity of provincial legislation is challenged on the basis that it violates territorial limitations
 on provincial legislative competence, the analysis centres on the pith and substance of the legislation. If its pith
 and substance is in relation to matters falling within the field of provincial legislative competence, the legislation
 is valid. Incidental or ancillary extra-provincial aspects of such legislation are irrelevant to its validity. See
 Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297 (―Churchill Falls‖), at p. 332,
 and Global Securities Corp. v. British Columbia (Securities Commission), [2000] 1 S.C.R. 494, 2000 SCC 21, at
 para. 24.


 29     In determining the pith and substance of legislation, the court identifies its essential character or dominant
 feature: see Global Securities Corp., at para. 22, and Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783,
 2000 SCC 31, at para. 16. This may be done through reference to both the purpose and effect of the legislation:
 see Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), [2002] 2 S.C.R. 146,




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 2002 SCC 31, at para. 53. See also Fédération des producteurs de volailles du Québec v. Pelland, [2005] 1
 S.C.R. 292, 2005 SCC 20, at para. 20.

 30      Where the pith and substance of legislation relates to a tangible matter — i.e., something with an intrinsic
 and observable physical presence — the question of whether it respects the territorial limitations in s. 92 is easy
 to answer. One need only look to the location of the matter. If it is in the province, the limitations have been
 respected, and the legislation is valid. If it is outside the province, the limitations have been violated, and the
 legislation is invalid.

 31    Where legislation‘s pith and substance relates to an intangible matter, the characterization is more
 complicated. That is the case here.

 32      The pith and substance of the Act is plainly the creation of a civil cause of action. More specifically, it is
 the creation of a civil cause of action by which the government of British Columbia may seek compensation for
 certain health care costs incurred by it. Civil causes of action are a matter within provincial legislative
 jurisdiction under s. 92(13) of the Constitution Act, 1867: ―Property and Civil Rights in the Province‖. See
 General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641, at p. 672.

 33     But s. 92(13) does not speak to ―Property and Civil Rights‖ located anywhere. It speaks only to
 ―Property and Civil Rights in the Province‖. And, to reiterate, it is, like all provincial heads of power, qualified
 by the opening words of s. 92: ―In each Province‖. The issue thus becomes how to determine whether an
 intangible, such as the cause of action constituting the pith and substance of the Act, is ―in the Province‖.

 34      Churchill Falls dealt with a similar issue. In that case, McIntyre J. was confronted with a Newfoundland
 statute, the pith and substance of which was the modification of rights existing under a contract between
 Churchill Falls (Labrador) Corporation Limited and Quebec Hydro-Electric Commission. Since the entity
 possessing those rights (namely, the Commission) was constituted in Quebec, and the parties had agreed that the
 Quebec courts had exclusive jurisdiction to adjudicate disputes concerning their contract, McIntyre J. regarded
 the rights created by that contract as situated in Quebec. The Newfoundland law that purported to modify them
 was thus invalid. It related to civil rights, but not to civil rights ―in the Province‖.

 …

 36       From the foregoing it can be seen that several analytical steps may be required to determine whether
 provincial legislation in pith and substance respects territorial limits on provincial legislative competence. The
 first step is to determine the pith and substance, or dominant feature, of the impugned legislation, and to identify
 a provincial head of power under which it might fall. Assuming a suitable head of power can be found, the
 second step is to determine whether the pith and substance respects the territorial limitations on that head of
 power — i.e., whether it is in the province. If the pith and substance is tangible, whether it is in the province is
 simply a question of its physical location. If the pith and substance is intangible, the court must look to the
 relationships among the enacting territory, the subject matter of the legislation and the persons made subject to
 it, in order to determine whether the legislation, if allowed to stand, would respect the dual purposes of the
 territorial limitations in s. 92 (namely, to ensure that provincial legislation has a meaningful connection to the
 enacting province and pays respect to the legislative sovereignty of other territories). If it would, the pith and
 substance of the legislation should be regarded as situated in the province.

 37      Here, the cause of action that is the pith and substance of the Act serves exclusively to make the persons
 ultimately responsible for tobacco-related disease suffered by British Columbians — namely, the tobacco
 manufacturers who, through their wrongful acts, caused those British Columbians to be exposed to tobacco —
 liable for the costs incurred by the government of British Columbia in treating that disease. There are thus
 strong relationships among the enacting territory (British Columbia), the subject matter of the law (compensation
 for the government of British Columbia‘s tobacco-related health care costs) and the persons made subject to it
 (the tobacco manufacturers ultimately responsible for those costs), such that the Act can easily be said to be
 meaningfully connected to the province.




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 38       The Act respects the legislative sovereignty of other jurisdictions. Though the cause of action that is its
 pith and substance may capture, to some extent, activities occurring outside of British Columbia, no territory
 could possibly assert a stronger relationship to that cause of action than British Columbia. That is because there
 is at all times one critical connection to British Columbia exclusively: the recovery permitted by the action is in
 relation to expenditures by the government of British Columbia for the health care of British Columbians.

 39      In assessing the Act‘s respect for the territorial limitations on British Columbia‘s legislative competence,
 the appellants and the Court of Appeal placed considerable emphasis on the question of whether, as a matter of
 statutory interpretation, the breach of duty by a manufacturer that is a necessary condition of its liability under
 the cause of action created by the Act must occur in British Columbia. That emphasis was undue, for two
 reasons.

 40     First, the driving force of the Act‘s cause of action is compensation for the government of British
 Columbia‘s health care costs, not remediation of tobacco manufacturers‘ breaches of duty. While the Act makes
 the existence of a breach of duty one of several necessary conditions to a manufacturer‘s liability to the
 government, it is not the mischief at which the cause of action created by the Act is aimed. The Act leaves
 breaches of duty to be remedied by the law that gives rise to the duty. Thus, the breaches of duty to which the
 Act refers are of subsidiary significance to the cause of action created by it, and the locations where those
 breaches might occur have little or no bearing on the strength of the relationship between the cause of action and
 the enacting jurisdiction.

 41      Second, and in any event, the only relevant breaches under the Act are breaches of duties (or obligations)
 owed ―to persons in British Columbia‖ (s. 1(1) ―tobacco related wrong‖ and s. 3(1)(a)) that give rise to health
 care expenditures by the government of British Columbia. Thus, even if the existence of a breach of duty were
 the central element of the Act‘s cause of action (it is not), the cause of action would remain strongly related to
 British Columbia.

 42      The question of whether other matters, such as exposure and disease, to which the Act refers, must occur
 or arise in British Columbia is equally or more irrelevant to the Act‘s validity. Those matters too are conditions
 precedent to success in an action brought pursuant to the Act and of subsidiary significance to it.

 43      It follows that the cause of action that constitutes the pith and substance of the Act is properly described
 as located ―in the Province‖. The Act is not invalid by reason of extra-territoriality, being in pith and substance
 legislation in relation ―Property and Civil Rights in the Province‖ under s. 92(13) of the Constitution Act, 1867.

 B. Judicial Independence

 44     Judicial independence is a ―foundational principle‖ of the Constitution reflected in s. 11(d) of the
 Canadian Charter of Rights and Freedoms, and in both ss. 96-100 and the preamble to the Constitution Act,
 1867: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3,
 at para. 109. It serves ―to safeguard our constitutional order and to maintain public confidence in the
 administration of justice‖: Ell v. Alberta, [2003] 1 S.C.R. 857, 2003 SCC 35, at para. 29. See also Application
 under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248, 2004 SCC 42, at paras. 80-81.

 45      Judicial independence consists essentially in the freedom ―to render decisions based solely on the
 requirements of the law and justice‖: Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405,
 2002 SCC 13, at para. 37. It requires that the judiciary be left free to act without improper ―interference from
 any other entity‖ (Ell, at para. 18) — i.e., that the executive and legislative branches of government not ―impinge
 on the essential ‗authority and function‘ . . . of the court‖ (MacKeigan v. Hickman, [1989] 2 S.C.R. 796, at p.
 828). See also Valente v. The Queen, [1985] 2 S.C.R. 673, at pp. 686-87; Beauregard v. Canada, [1986] 2
 S.C.R. 56, at pp. 73 and 75; R. v. Lippé, [1991] 2 S.C.R. 114, at pp. 152-54; Babcock v. Canada (Attorney
 General), [2002] 3 S.C.R. 3, 2002 SCC 57, at para. 57; and Application under s. 83.28 of the Criminal Code
 (Re), at para. 87.

 46     Security of tenure, financial security and administrative independence are the three ―core characteristics‖
 or ―essential conditions‖ of judicial independence: Valente, at pp. 694, 704 and 708, and Reference re



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 Remuneration of Judges of the Provincial Court of Prince Edward Island, at para. 115. It is a precondition to
 judicial independence that they be maintained, and be seen by ―a reasonable person who is fully informed of all
 the circumstances‖ to be maintained: Mackin, at paras. 38 and 40, and Provincial Court Judges‟ Assn. of New
 Brunswick v. New Brunswick (Minister of Justice), [2005] 2 S.C.R. 286, 2005 SCC 44, at para. 6.

 47      However, even where the essential conditions of judicial independence exist, and are reasonably seen to
 exist, judicial independence itself is not necessarily ensured. The critical question is whether the court is free,
 and reasonably seen to be free, to perform its adjudicative role without interference, including interference from
 the executive and legislative branches of government. See, for example, Application under s. 83.28 of the
 Criminal Code (Re), at paras. 82-92.

 48      The appellants submit that the Act violates judicial independence, both in reality and appearance, because
 it contains rules of civil procedure that fundamentally interfere with the adjudicative role of the court hearing an
 action brought pursuant to the Act. They point to s. 3(2), which they say forces the court to make irrational
 presumptions, and to ss. 2(5)(a), 2(5)(b) and 2(5)(c), which they say subvert the court‘s ability to discover
 relevant facts. They say that these rules impinge on the court‘s fact-finding function, and virtually guarantee the
 government‘s success in an action brought pursuant to the Act.

 49     The rules in the Act with which the appellants take issue are not as unfair or illogical as the appellants
 submit. They appear to reflect legitimate policy concerns of the British Columbia legislature regarding the
 systemic advantages tobacco manufacturers enjoy when claims for tobacco-related harm are litigated through
 individualistic common law tort actions. That, however, is beside the point. The question is not whether the
 Act‘s rules are unfair or illogical, nor whether they differ from those governing common law tort actions, but
 whether they interfere with the courts‘ adjudicative role, and thus judicial independence.

 50      The primary role of the judiciary is to interpret and apply the law, whether procedural or substantive, to
 the cases brought before it. It is to hear and weigh, in accordance with the law, evidence that is relevant to the
 legal issues confronted by it, and to award to the parties before it the available remedies.

 51      The judiciary has some part in the development of the law that its role requires it to apply. Through, for
 example, its interpretation of legislation, review of administrative decisions and assessment of the
 constitutionality of legislation, it may develop the law significantly. It may also make incremental developments
 to its body of previous decisions — i.e., the common law — in order to bring the legal rules those decisions
 embody ―into step with a changing society‖: R. v. Salituro, [1991] 3 S.C.R. 654, at p. 666. See also Hill v.
 Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at paras. 91-92. But the judiciary‘s role in developing
 the law is a relatively limited one. ―[I]n a constitutional democracy such as ours it is the legislature and not the
 courts which has the major responsibility for law reform‖: Salituro, at p. 670.

 52     It follows that the judiciary‘s role is not, as the appellants seem to submit, to apply only the law of which
 it approves. Nor is it to decide cases with a view simply to what the judiciary (rather than the law) deems fair or
 pertinent. Nor is it to second-guess the law reform undertaken by legislators, whether that reform consists of a
 new cause of action or procedural rules to govern it. Within the boundaries of the Constitution, legislatures can
 set the law as they see fit. ―The wisdom and value of legislative decisions are subject only to review by the
 electorate‖: Wells v. Newfoundland, [1999] 3 S.C.R. 199, at para. 59.

 53     In essence, the appellants‘ arguments misapprehend the nature and scope of the courts‘ adjudicative role
 protected from interference by the Constitution‘s guarantee of judicial independence. To accept their position on
 that adjudicative role would be to recognize a constitutional guarantee not of judicial independence, but of
 judicial governance.

 54      None of this is to say that legislation, being law, can never unconstitutionally interfere with courts‘
 adjudicative role. But more is required than an allegation that the content of the legislation required to be
 applied by that adjudicative role is irrational or unfair, or prescribes rules different from those developed at
 common law. The legislation must interfere, or be reasonably seen to interfere, with the courts‘ adjudicative
 role, or with the essential conditions of judicial independence. As McLachlin C.J. stated in Babcock, at para. 57:




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                It is well within the power of the legislature to enact laws, even laws which some would consider
                draconian, as long as it does not fundamentally alter or interfere with the relationship between the
                courts and the other branches of government.

 55      No such fundamental alteration or interference was brought about by the legislature‘s enactment of the
 Act. A court called upon to try an action brought pursuant to the Act retains at all times its adjudicative role and
 the ability to exercise that role without interference. It must independently determine the applicability of the Act
 to the government‘s claim, independently assess the evidence led to support and defend that claim,
 independently assign that evidence weight, and then independently determine whether its assessment of the
 evidence supports a finding of liability. The fact that the Act shifts certain onuses of proof or limits the
 compellability of information that the appellants assert is relevant does not in any way interfere, in either
 appearance or fact, with the court‘s adjudicative role or any of the essential conditions of judicial independence.
 Judicial independence can abide unconventional rules of civil procedure and evidence.

 56    The appellants‘ submission that the Act violates the independence of the judiciary and is therefore
 unconstitutional fails for the reasons stated above.

 C.    Rule of Law

 57    The rule of law is ―a fundamental postulate of our constitutional structure‖ (Roncarelli v. Duplessis,
 [1959] S.C.R. 121, at p. 142) that lies ―at the root of our system of government‖ (Reference re Secession of
 Quebec, [1998] 2 S.C.R. 217, at para. 70). It is expressly acknowledged by the preamble to the Constitution Act,
 1982, and implicitly recognized in the preamble to the Constitution Act, 1867: see Reference re Manitoba
 Language Rights, [1985] 1 S.C.R. 721, at p. 750.

 58      This Court has described the rule of law as embracing three principles. The first recognizes that ―the law
 is supreme over officials of the government as well as private individuals, and thereby preclusive of the
 influence of arbitrary power‖: Reference re Manitoba Language Rights, at p. 748. The second ―requires the
 creation and maintenance of an actual order of positive laws which preserves and embodies the more general
 principle of normative order‖: Reference re Manitoba Language Rights, at p. 749. The third requires that ―the
 relationship between the state and the individual . . . be regulated by law‖: Reference re Secession of Quebec, at
 para. 71.

 59      So understood, it is difficult to conceive of how the rule of law could be used as a basis for invalidating
 legislation such as the Act based on its content. That is because none of the principles that the rule of law
 embraces speak directly to the terms of legislation. The first principle requires that legislation be applied to all
 those, including government officials, to whom it, by its terms, applies. The second principle means that
 legislation must exist. And the third principle, which overlaps somewhat with the first and second, requires that
 state officials‘ actions be legally founded. See R. Elliot, ―References, Structural Argumentation and the
 Organizing Principles of Canada‘s Constitution‖ (2001), 80 Can. Bar Rev. 67, at pp. 114-15.

 60      This does not mean that the rule of law as described by this Court has no normative force. As McLachlin
 C.J. stated in Babcock, at para. 54, ―unwritten constitutional principles‖, including the rule of law, ―are capable
 of limiting government actions‖. See also Reference re Secession of Quebec, at para. 54. But the government
 action constrained by the rule of law as understood in Reference re Manitoba Language Rights and Reference re
 Secession of Quebec is, by definition, usually that of the executive and judicial branches. Actions of the
 legislative branch are constrained too, but only in the sense that they must comply with legislated requirements
 as to manner and form (i.e., the procedures by which legislation is to be enacted, amended and repealed).

 61     Nonetheless, considerable debate surrounds the question of what additional principles, if any, the rule of
 law might embrace, and the extent to which they might mandate the invalidation of legislation based on its
 content. P. W. Hogg and C. F. Zwibel write in ―The Rule of Law in the Supreme Court of Canada‖ (2005), 55
 U.T.L.J. 715, at pp. 717-18:

                Many authors have tried to define the rule of law and to explain its significance, or lack thereof.
                Their views spread across a wide spectrum. . . . T.R.S. Allan, for example, claims that laws that



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                fail to respect the equality and human dignity of individuals are contrary to the rule of law. Luc
                Tremblay asserts that the rule of law includes the liberal principle, the democratic principle, the
                constitutional principle, and the federal principle. For Allan and Tremblay, the rule of law
                demands not merely that positive law be obeyed but that it embody a particular vision of social
                justice. Another strong version comes from David Beatty, who argues that the ‗ultimate rule of
                law‘ is a principle of ‗proportionality‘ to which all laws must conform on pain of invalidity
                (enforced by judicial review). In the middle of the spectrum are those who, like Joseph Raz,
                accept that the rule of law is an ideal of constitutional legality, involving open, stable, clear, and
                general rules, even-handed enforcement of those laws, the independence of the judiciary, and
                judicial review of administrative action. Raz acknowledges that conformity to the rule of law is
                often a matter of degree, and that breaches of the rule of law do not lead to invalidity.

 See also W. J. Newman, ―The Principles of the Rule of Law and Parliamentary Sovereignty in Constitutional
 Theory and Litigation‖ (2005), 16 N.J.C.L. 175, at pp. 177-80.

 62    This debate underlies Strayer J.A.‘s apt observation in Singh v. Canada (Attorney General), [2000] 3 F.C.
 185 (C.A.), at para. 33, that ―[a]dvocates tend to read into the principle of the rule of law anything which
 supports their particular view of what the law should be.‖

 63      The appellants‘ conceptions of the rule of law can fairly be said to fall at one extreme of the spectrum of
 possible conceptions and to support Strayer J.A.‘s thesis. They submit that the rule of law requires that
 legislation: (1) be prospective; (2) be general in character; (3) not confer special privileges on the government,
 except where necessary for effective governance; and (4) ensure a fair civil trial. And they argue that the Act
 breaches each of these requirements, rendering it invalid.

 64      A brief review of this Court‘s jurisprudence will reveal that none of these requirements enjoy
 constitutional protection in Canada. But before embarking on that review, it should be said that acknowledging
 the constitutional force of anything resembling the appellants‘ conceptions of the rule of law would seriously
 undermine the legitimacy of judicial review of legislation for constitutionality. That is so for two separate but
 interrelated reasons.

 65       First, many of the requirements of the rule of law proposed by the appellants are simply broader versions
 of rights contained in the Charter. For example, the appellants‘ proposed fair trial requirement is essentially a
 broader version of s. 11(d) of the Charter, which provides that ―[a]ny person charged with an offence has the
 right . . . to . . . a fair and public hearing.‖ But the framers of the Charter enshrined that fair trial right only for
 those ―charged with an offence‖. If the rule of law constitutionally required that all legislation provide for a fair
 trial, s. 11(d) and its relatively limited scope (not to mention its qualification by s. 1) would be largely irrelevant
 because everyone would have the unwritten, but constitutional, right to a ―fair . . . hearing‖. (Though, as
 explained in para. 76, the Act provides for a fair trial in any event.) Thus, the appellants‘ conception of the
 unwritten constitutional principle of the rule of law would render many of our written constitutional rights
 redundant and, in doing so, undermine the delimitation of those rights chosen by our constitutional framers.
 That is specifically what this Court cautioned against in Reference re Secession of Quebec, at para. 53:

                     Given the existence of these underlying constitutional principles, what use may the Court
                make of them? In [Reference re Remuneration of Judges of the Provincial Court of Prince
                Edward Island], at paras. 93 and 104, we cautioned that the recognition of these constitutional
                principles . . . could not be taken as an invitation to dispense with the written text of the
                Constitution. On the contrary, we confirmed that there are compelling reasons to insist upon the
                primacy of our written constitution. A written constitution promotes legal certainty and
                predictability, and it provides a foundation and a touchstone for the exercise of constitutional
                judicial review. [Emphasis added.]

 66     Second, the appellants‘ arguments overlook the fact that several constitutional principles other than the
 rule of law that have been recognized by this Court — most notably democracy and constitutionalism — very
 strongly favour upholding the validity of legislation that conforms to the express terms of the Constitution (and
 to the requirements, such as judicial independence, that flow by necessary implication from those terms). Put



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 differently, the appellants‘ arguments fail to recognize that in a constitutional democracy such as ours, protection
 from legislation that some might view as unjust or unfair properly lies not in the amorphous underlying
 principles of our Constitution, but in its text and the ballot box. See Bacon v. Saskatchewan Crop Insurance
 Corp. (1999), 180 Sask. R. 20 (C.A.), at para. 30; Elliot, at pp. 141-42; Hogg and Zwibel, at p. 718; and
 Newman, at p. 187.

 67     The rule of law is not an invitation to trivialize or supplant the Constitution‘s written terms. Nor is it a
 tool by which to avoid legislative initiatives of which one is not in favour. On the contrary, it requires that
 courts give effect to the Constitution‘s text, and apply, by whatever its terms, legislation that conforms to that
 text.

 68    A review of the cases showing that each of the appellants‘ proposed requirements of the rule of law has,
 as a matter of precedent and policy, no constitutional protection is conclusive of the appellants‘ rule of law
 arguments.

                (1) Prospectivity in the Law

 69     Except for criminal law, the retrospectivity and retroactivity of which is limited by s. 11(g) of the
 Charter, there is no requirement of legislative prospectivity embodied in the rule of law or in any provision of
 our Constitution. Professor P. W. Hogg sets out the state of the law accurately (in Constitutional Law of Canada
 (loose-leaf ed.), vol. 2, at p. 48-29):

                      Apart from s. 11(g), Canadian constitutional law contains no prohibition of retroactive (or ex
                post facto) laws. There is a presumption of statutory interpretation that a statute should not be
                given retroactive effect, but, if the retroactive effect is clearly expressed, then there is no room for
                interpretation and the statute is effective according to its terms. Retroactive statutes are in fact
                common.

 70     Hence, in Air Canada v. British Columbia, [1989] 1 S.C.R. 1161, at p. 1192, La Forest J., writing for a
 majority of this Court, characterized a retroactive tax as ―not constitutionally barred‖. And in Cusson v.
 Robidoux, [1977] 1 S.C.R. 650, at p. 655, Pigeon J., for a unanimous Court, said that it would be ―untenable‖ to
 suggest that legislation reviving actions earlier held by this Court (in Notre-Dame Hospital v. Patry, [1975] 2
 S.C.R. 388) to be time-barred was unconstitutional.

 71      The absence of a general requirement of legislative prospectivity exists despite the fact that retrospective
 and retroactive legislation can overturn settled expectations and is sometimes perceived as unjust: see E.
 Edinger, ―Retrospectivity in Law‖ (1995), 29 U.B.C. L. Rev. 5, at p. 13. Those who perceive it as such can
 perhaps take comfort in the rules of statutory interpretation that require the legislature to indicate clearly any
 desired retroactive or retrospective effects. Such rules ensure that the legislature has turned its mind to such
 effects and ―determined that the benefits of retroactivity [or retrospectivity] outweigh the potential for disruption
 or unfairness‖: Landgraf v. USI Film Products, 511 U.S. 244 (1994), at p. 268.

 72     It might also be observed that developments in the common law have always had retroactive and
 retrospective effect. Lord Nicholls recently explained this point in In re Spectrum Plus Ltd., [2005] 3 W.L.R.
 58, [2005] UKHL 41, at para. 7:

                A court ruling which changes the law from what it was previously thought to be operates
                retrospectively as well as prospectively. The ruling will have a retrospective effect so far as the
                parties to the particular dispute are concerned, as occurred with the manufacturer of the ginger
                beer in Donoghue v Stevenson [1932] AC 562. When Mr Stevenson manufactured and bottled
                and sold his ginger beer the law on manufacturers‘ liability as generally understood may have
                been as stated by the majority of the Second Division of the Court of Session and the minority of
                their Lordships in that case. But in the claim Mrs Donoghue brought against Mr Stevenson his
                legal obligations fell to be decided in accordance with Lord Atkin‘s famous statements. Further,
                because of the doctrine of precedent the same would be true of everyone else whose case
                thereafter came before a court. Their rights and obligations would be decided according to the law



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                as enunciated by the majority of the House of Lords in that case even though the relevant events
                occurred before that decision was given.

 This observation adds further weight, if needed, to the view that retrospectivity and retroactivity do not generally
 engage constitutional concerns.

                (2) Generality in the Law, Ordinary Law for the Government and Fair Civil Trials

 73     Two decisions of this Court defeat the appellants‘ submission that the Constitution, through the rule of
 law, requires that legislation be general in character and devoid of special advantages for the government (except
 where necessary for effective governance), as well as that it ensure a fair civil trial.


 74      The first is Air Canada. In it, a majority of this Court affirmed the constitutionality of 1981 amendments
 to the Gasoline Tax Act, 1948, R.S.B.C. 1960, c. 162, that retroactively taxed certain companies in the airline
 industry. The amendments were meant strictly to defeat three companies‘ claims, brought in 1980, for
 reimbursement of gasoline taxes paid between 1974 and 1976, the collection of which was ultra vires the
 legislature of British Columbia. The legislative amendments, in addition to being retroactive, were for the
 benefit of the Crown, aimed at a particular industry with readily identifiable members and totally destructive of
 that industry‘s ability to pursue successfully their claims filed a year earlier. Nonetheless, the constitutionality
 of those amendments was affirmed by a majority of this Court.

 75     The second is Authorson v. Canada (Attorney General), [2003] 2 S.C.R. 40, 2003 SCC 39, in which this
 Court unanimously upheld a provision of the Department of Veterans Affairs Act, R.S.C. 1985, c. V-1, aimed
 specifically at defeating certain disabled veterans‘ claims, the merits of which were undisputed, against the
 federal government. The claims concerned interest owed by the government on the veterans‘ benefit accounts
 administered by it, which interest it had not properly credited for decades. Though the appeal was pursued on
 the basis of the Canadian Bill of Rights, S.C. 1960, c. 44, the decision confirmed that it was well within
 Parliament‘s power to enact the provision at issue — despite the fact that it was directed at a known class of
 vulnerable veterans, conferred benefits on the Crown for ―undisclosed reasons‖ (para. 62) and routed those
 veterans‘ ability to have any trial — fair or unfair — of their claims. See para. 15:

                     The Department of Veterans Affairs Act, s. 5.1(4) takes a property claim from a vulnerable
                group, in disregard of the Crown‘s fiduciary duty to disabled veterans. However, that taking is
                within the power of Parliament. The appeal has to be allowed.

 76       Additionally, the appellants‘ conception of a ―fair‖ civil trial seems in part to be of one governed by
 customary rules of civil procedure and evidence. As should be evident from the analysis concerning judicial
 independence, there is no constitutional right to have one‘s civil trial governed by such rules. Moreover, new
 rules are not necessarily unfair. Indeed, tobacco manufacturers sued pursuant to the Act will receive a fair civil
 trial, in the sense that the concept is traditionally understood: they are entitled to a public hearing, before an
 independent and impartial court, in which they may contest the claims of the plaintiff and adduce evidence in
 their defence. The court will determine their liability only following that hearing, based solely on its
 understanding of the law as applied to its findings of fact. The fact that defendants might regard that law (i.e.,
 the Act) as unjust, or the procedural rules it prescribes as unprecedented, does not render their trial unfair.

 77     The Act does not implicate the rule of law in the sense that the Constitution comprehends that term. It
 follows that the Act is not unconstitutional by reason of interference with it.

 V.    Conclusion

 78                   The Act is constitutionally valid. The appeals are dismissed, with costs to the respondents
 throughout. Each constitutional question is answered ―no‖. The stay of proceedings granted by McLachlin C.J.
 on January 21, 2005 is vacated.




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                                                                   Orazio v. Ciulla

(1966) 59 D.L.R. (2d) 208
British Columbia Supreme Court Chambers

KIRKE-SMITH, CO.CT.J.: - This action is one for damages arising out of a motor-vehicle collision on August 1,
1964. The writ was issued by counsel for the plaintiff on July 21, 1965, and the plaintiff‘s position on this motion is
that it was personally served on the defendant on or about July 20, 1966. The defendant disagrees, and moves here
for an order setting aside this purported service as not constituting valid personal service.

         If the order is made, the writ will no longer be in force for the purpose of service: O. VIII, r. 1 (M.R. 45).

        The point raised is both important and interesting, involving as it does construing the circumlocutory
terminology of O. IX, r. 2 (M.R. 49), which provides, in material part, as follows:

                2. When service is required the writ shall, wherever it is practicable, be served in the

          This Rule has been in its present form for many years, and the fact that those who originally drafted or
adopted it were sufficiently familiar with ―the manner in which personal service‖ was then effected to regard as
supererogatory any attempt to further explain this manner for the benefit of their less learned successors has created
problems of some difficulty for both practitioners and those unfortunate enough to have been called upon, from time
to time, to lecture students in the esoteric field of practice and procedure.

         I do not propose, where those wiser than I have, perhaps purposely, refrained from so doing, to attempt
here an all-embracing explanation or definition of personal service, but the unusual facts of this case require some
adumbration of certain relevant principles.

          The facts on which the problem arises are, I think, unique. A solicitor, to whom I shall refer simply as the
solicitor, has acted some years for the defendant in this action in his business and legal affairs. So far, however, as
this action is concerned, the defendant carried automobile liability coverage, and both he and all other persons here
involved were aware, at all material times, that the legal firm of which counsel for the defendant is a member were
acting and would continue to act for him in this litigation.

         The solicitor shared office space with counsel for the plaintiff, although no de facto or de jure business or
partnership relation existed between them.

         It appears that, at some time after the issuance of the writ, the solicitor took over from plaintiff‘s counsel
the negotiations with counsel for the defendant in an attempt to work out a settlement of the plaintiff‘s claim.
However, by letter of June 29th last addressed, not to counsel for the plaintiff, but to the solicitor, Mr. Johnson
advised that the action, of which, to judge by search praecipes in the file, he was then aware, would have to proceed
to examination for discovery before any recommendation could be made by him to his client.

         The solicitor, who gave viva voce evidence, in addition to the affidavit sworn by him, on this hearing, said
that he knew, on receipt of this letter, that he could ―no longer act‖ for the plaintiff.

          Despite his connection (which I gratefully find it unnecessary to conclusively define) with the plaintiff
here, he took it upon himself, on July 19th or 20th, to advise the defendant, who had come to his office to see him on
other legal matters, that ―it was necessary to formally serve him with a writ of summons‖. He deposes that he gave
his secretary a copy of the writ in this action, and that she in turn handed this to the defendant. An affidavit of
service in the form prescribed by the Rules was later sworn by the young lady, and filed. The defendant‘s own
recollection is that the solicitor himself handed him the copy of the writ, but the weight of the evidence supports the
conclusion that he is mistaken in this.




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          It is common ground that the solicitor explained to the defendant what the document was, and that the
defendant did, in fact, read it over, at least to the point of seeing the names of the parties, and appreciating that it
referred to the motor-vehicle accident.

         It is further agreed that ―a few moments later‖ he handed the copy of the writ to the solicitor, who,
according to the defendant, ―put it somewhere in his office‖. The defendant has not seen the document since. Some
days later, the solicitor informed Mr. Johnson, in the course of a telephone conversation, that the defendant had been
served with the writ.

        The defendant himself deposes that he did not report to his solicitors in this action what occurred on that
day because he did not understand that the solicitor ―was purporting to serve me with the writ‖.

          It remains only to add that no advantage has been or, I am advised, is proposed to be taken by counsel for
the plaintiff by way of signing default judgment against the defendant.

          My sole function here is to decide whether or not, on these facts, valid personal service was effected on the
defendant, but I am impelled to say here that the ill-considered and, to me, incomprehensible position in which the
solicitor unnecessarily placed himself here has not made this task an easier one.

          Counsel for the defendant founds his attack, in essence, on the proposition that there are essentially two
distinct and separate steps in effecting personal service. By s. 2 of the Supreme Court Act, R.S.B.C. 1960, c. 374, the
forms set out in the various appendices to the Supreme Court Rules have the force of Rules. The affidavit of service
of a writ of summons (Form No. 23A in Appendix B) requires the person serving the writ to depose, inter alia, that
he or she did so ―.......... by delivering to and leaving a true copy of the same with the said defendant‖. Accordingly,
says Mr. Johnson, delivery per se is insufficient; the copy must additionally be left with the defendant. This, he says,
was not done here, since the handing back of the copy of the writ by the defendant to the solicitor undid what would
otherwise have been valid personal service.

          He derives support for this submission from the many English and Canadian practice texts and digests cited
by him, although no case directly in point is cited in any of these works. The principle itself is, however, of
undoubted antiquity, and cannot now be questioned; but there is no authority which determines what in fact
constitutes leaving the writ with the defendant. It seems to me, therefore, necessary to determine the purpose of
personal service as a preliminary to deciding, on the facts of the particular case, whether it has or has not been
effected.

         I start on the inquiry as to this purpose by expressing my respectful concurrence in the following statement
of the Lord Chancellor, Lord Cranworth, in Hope v. Hope (1854), 4 De G.M. & G. 328 at p. 342, 43 E.R. 534:

         The object of all service is of course only to give notice to the party on whom it is made, so that he
         may be made aware of and may be able to resist that which is sought against him; and when that
         has been substantially done, so that the Court may feel perfectly confident that service has reached
         him, everything has been done that is required.

       This statement was applied by Wilson, J. (now C.J.S.C.), in his judgment in Barner v. Barner (1952) 7
W.W.R. (N.S.) 331.

           It is, I think, clearly established by decisions such as Petit v. Ambrose (1817), 6 M. & S. 274, 105 E.R.
1245, that it is not necessary to show the original writ or other process being served a defendant unless he demands
to see it.

         It is also clear that the copy of the writ must be delivered to the defendant in such a manner as to make it
readily apparent to him, by simply looking at it, what the document is. See for example O‟Sullivan v. Murphy
(1884), 78 L.T. Jo. 213, where the Exchequer Division of the High Court of Justice of Ireland decided that service
allegedly effected by calling to the defendant, who immediately turned and ran away, and then throwing the copy of
the writ on the ground, holding up the original, and calling after the fleeing defendant ―There is the writ for you‖



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was not valid service. Similarly in Banque Russe et Francaise v. Clark, [1894] W.N. 203, the Court of Appeal held
that handing the defendant a writ enclosed in an envelope, whether sealed or not, the defendant not being informed
of its contents, and having no knowledge that an action had been or was about to be commenced against him, was
not good personal service.

         On the other hand, thrusting a document of which personal service was required into an inner fold of the
unbuttoned topcoat of a defendant who had declined to accept the proffered document was held to constitute good
service in a decision which Lord Alverstone, C.J., presiding, referred to as ―a very trumpery case‖, Rose v.
Kempthorne (1910), 103 L.T. 730. In Re Avery, [1952] 2 D.L.R. 413 at p. 415, [1952] O.R. 192, Hogg, J.A. (per
curiam), said:

         Personal service has been said to be service made by delivering the process into the defendant‘s hand or by
seeing him and bringing the process to his notice.

        The most recent decision I have been able to discover on the point is the helpful judgment of the Senior
Master, whose conclusion was upheld on appeal, in Canadian-Dominion Leasing Corp. Ltd. v. Corpex Ltd., [1963]
2 O.R. 497, a case involving somewhat similar problems. Weill, the president of the defendant company, denied that
he had been personally served with a copy of the writ; but it was found, at p. 499, that:

         .......... he had knowledge that the document was a writ of summons issued by the plaintiff against
         the defendant and knew the general nature of the plaintiff‘s claim.

          The learned Senior Master accordingly held that, the process having been brought to Weill‘s attention, and
the writ having come to the defendant‘s knowledge, proper personal service had been effected.

         I conclude, therefore, that counsel for the defendant here is correct in his submission that mere delivery of
process is not sufficient, of itself, to constitute valid personal service. I cannot, however, agree with him in his
suggestion that the additional requirement expressed in the affidavit of service as ―leaving a true copy of the same
with the defendant‖ is only met by the defendant ending his encounter with the process server with a copy of the
process in his possession. The essential ingredient, as I see it on the authorities, is that the process delivered to the
defendant must be so delivered under circumstances which enable the Court to conclude that he knew, or reasonably
should have known, what it was, or, to adopt the language of Hogg, J.A., in Re Avery, supra, to the facts of this case,
that he knew the document was a writ, issued against him by the plaintiff, and knew in addition the general nature of
the claim therein advanced.

          There is, in my view, no escape here from the conclusion, on the defendant‘s own admissions, that by this
test the service here effected was valid. He was advised, and knew of, the plaintiff‘s claim against him. He read the
document handed to him, saw his name and that of the plaintiff, and saw that the document referred to the accident.

         What happened thereafter could not, in my opinion, undo what had then been done. The solicitor‘s
subsequent actions in taking back the writ when it was handed to him, and failing to promptly notify counsel for the
defendant in this action of what had transpired, though difficult to understand, could not have the effect of vitiating
the notice and understanding which the previous events had communicated to the defendant.

        I conclude, therefore, that valid personal service was effected in this case. The motion is accordingly
dismissed, with costs to the plaintiff in the cause.

Motion dismissed.




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                                            Credit Foncier Franco-Canadien v. McGuire

British Columbia Supreme Court
Judgment: June 18, 1979

van der HOOP L.J.S.C.: - The petitioner applied under R. 12 for an order for substituted service upon the
respondents Della McGuire and Steve McGuire.In support of the application was filed the affidavit of a process
server which set out the following:

―2)      That on Wednesday, the 16th day of May, A.D. 1979 at 8:55 o‘clock in the afternoon, I arrived at
         13026 - 13th Avenue, Surrey, B.C. I spoke with an older lady who refused to open the door. We
         spoke through the mail slot. She stated that she was instructed ―to not accept any papers for
         them‖. I spoke to a neighbour who said that he thought that the McGuires were away and that the
         lady was a housekeeper. He verified that the McGuires do live at 13026 - 13th Avenue, Surrey,
         B.C.

3)       That I verily and truly believe that the respondents Della and Steve McGuire could be served
         substitutionally by posting copies of the documents on the door at 13026 - 13th Avenue, Surrey,
         B.C. and the respondents would receive the same‖.

          Upon the hearing of the application, counsel advised me that the respondent Steve McGuire had, three days
previously, been sentenced in Provincial Court to imprisonment for three years. The application was not, however,
withdrawn. I dismissed the application and advised counsel that, in view of the number of ill-considered and
insufficiently supported applications of this kind from many members of the profession I would file written reasons.

          Rule 10(5) requires that a petition and copies of all affidavits in support be served on all persons whose
interests may be affected by the order sought. Rule 11(1) provides that service of a writ of summons is required
unless the defendant enters an appearance. The reason for these provisions is obvious. Rule 12 provides an
exception, and is as follows:

         ―(1)     Where for any reason it is impractical to serve a document as set out in Rule 11, the
         Court may order substituted service, whether or not there is evidence that the document will
         probably reach the person to be served or will probably come to his attention or that the person is
         evading service.‖

        The main difficulties in an application under this Rule arise out of the meaning of ―impractical‖ and lack of
understanding of what material is required to support an application.

        ―Impractical‖ is referred to in the Shorter Oxford English Dictionary, 3rd ed., as being a rarely used word
meaning ―impracticable‖. In Fowler‘s Modern English Usage, 2nd ed. p. 469 it is stated that ―impractical‖ is often
wrongly written, the negative of practicable is impracticable, and of practical is unpractical. Order 65 Rule 4 of the
English Rules, from which, in part, our Rule was drawn, provides for an order for substituted service if ―it appears to
the Court that it is impracticable for any reason to serve that document personally on that person‖.

          ―Impracticable‖ is defined in the Shorter Oxford Dictionary as ―that cannot be carried out or done;
practically impossible‖. Similarly, in Webster‘s New Collegiate Dictionary ―impracticable‖ is defined as ―incapable
of being performed or accomplished by the means employed or at hand‖. Webster‘s however, defines ―impractical‖
as ―not wise to put into or keep in practice or effect‖ and other American authorities equate ―impractical‖ with the
English ―unpractical‖ rather than ―impracticable‖. The Dictionary of Canadian English (1966) adds to the confusion
by defining ―impracticable‖ as ―not working well in practice‖ as well as ―that cannot be used‖ and ―impractical‖ as
―not practical; unrealistic‖. In the result, it would appear that what is practicable is capable of being done and what
is impracticable is not capable of being done, while what is practical is capable of being done usefully or at not too
great a cost and what is impractical (the English unpractical) is not capable of being done usefully or is capable of
being done but at too great a cost. I take the latter as being the meaning intended by R. 12. (Divorce Rule 14,



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providing for substituted service ―where personal service cannot be effected‖ would seem to impose the greater
burden on the applicant).

         Before a Judge can grant an order for substituted service, then, he must be supplied with facts establishing
that personal service cannot be usefully effected or will involve too great a cost. The applicant must show that
reasonable steps have been taken to locate the party to be served and, if he has been located, that reasonable efforts
had been made to effect personal service. What is reasonable must depend on the circumstances of each case
including, for example, the type of relief claimed, the amount involved, the avenues explored to locate the person
and the steps taken to effect personal service. Many applications are, as this one is, woefully deficient in supporting
material setting out the facts which are essential to enable a Judge to exercise the judicial discretion required for the
granting of the order sought.

          A commonly recurring problem is the affidavit of a sheriff‘s officer which state that the officer attended at
the home of the party to be served on one or a few occasions, that the party was not home, that the officer left his
card with instructions for the party to telephone or come to the officer‘s place of business, that the party failed to do
so and is therefore evading service. There is no requirement for a party to assist or co-operate with the sheriff‘s
officer in order that service may be effected, and the opinion that a party is evading service is one that, unless
adequately supported by facts, will be rejected by the Judge. The statement ―they also serve who stand and wait‖
was not made with this context in mind.

          The concluding words of the Rule ―whether or not there is evidence that the document will probably reach
the person to be served or will probably come to his attention or that the person is evading service‖ provide that the
order may be given under the circumstances outlined, but do not detract from the necessity of supplying the factual
information necessary to show that, under those circumstances, the order ought to be given. What must not be lost
sight of is the fact that R. 12 provides an exception to the requirement for personal service, not an automatic right to
an order for substituted service whenever there is some delay or difficulty in locating a party or in effecting personal
service. The exception applies only when the facts set out in the material filed in support of an application justify it.




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                                            Austin v. Rescon Construction (1984) Ltd. and
                                                      Wightman Enterprises Ltd.

Supreme Court of British Columbia
Judgment: February 14, 1986

         BOYD L.J.S.C.: The defendants make application under Rule 17(11) to set aside a default judgment
obtained by the plaintiff.

           On October 16th, 1985, the writ of summons was issued in which the plaintiff alleged that the defendants
deliberately trespassed upon the plaintiff's land by inserting certain anchor bolts under the surface of the plaintiff's
land. The plaintiff claims general and special damages, for trespass, exemplary damages, and in the alternative,
damages for unjust enrichment.

            On October 18th, 1985, the writ of summons and statement of claim were delivered to Mr. Randy Taylor,
counsel for the defendants. On November 12th, 1985, Mr. Taylor served a demand for particulars, together with a
letter requesting that he be provided with a period of fourteen days following the delivery of the particulars, within
which to file a statement of defence. The particulars requested were provided to Mr. Taylor by letter dated
December 2nd, 1985. In that same letter, the plaintiff's solicitor advised Mr. Taylor that unless a statement of
defence was filed by December 9th, 1985 he intended to file for judgment.

          On December 10th, 1985, Mr. Taylor telephoned Mr. Earle MacLeod, the plaintiff's solicitor.
Unfortunately, each individual's recollection of the telephone conversation is somewhat different. According to Mr.
MacLeod, Mr. Taylor confirmed that he had just received the particulars and that he would file a statement of
defence within one week, to which suggestion Mr. MacLeod agreed. By contrast, Mr. Taylor says he told Mr.
MacLeod that he required more time within which to prepare and file a statement of defence. According to him, Mr.
MacLeod waived the December 9th, 1985 deadline and no new date for filing was set. Based on his conversation
with Mr. MacLeod, he assumed that he would have a reasonable time within which to file the statement of defence.

           Following the fateful telephone call, Mr. MacLeod says that he telephoned Mr. Taylor's office on
December 20th and December 30th, 1985. He apparently left messages for Mr. Taylor to return his calls, which
telephone calls were not returned by Mr. Taylor. He left no message with Mr. Taylor's office inquiring as to why the
statement of defence was not yet filed nor advising that he intended to take default judgment.

           In his affidavit, Mr. Taylor confirms that Mr. MacLeod telephoned his offices on December 20th and
30th, 1985. His staff has advised him that during both telephone calls, Mr. MacLeod did not demand any statement
of defence nor did he advise that default judgment would be entered in the event that a statement of defence was not
received immediately.

          The default judgment was entered on January 8th, 1986 and served upon the defendants on January 9th,
1986. On January 17th, 1986, the defendants made application to set aside the default judgment, which application
was returnable on January 22nd, 1986 and then adjourned for hearing to February 12th, 1986.

            It is well established that in order to succeed on an application to set aside a default judgment, the
applicant must show first that he did not wilfully or deliberately fail to enter an appearance or file a defence to the
plaintiff's claim; secondly, that he made his application to set aside the default judgment as soon as reasonably
possible after obtaining knowledge of the default judgment or explain any delay in bringing the application; and
third, that he has a meritorious defence or at least a defence worthy of investigation. (Miracle Feeds v. D. & H. Ent.
Ltd. (1979), 10 B.C.L.R. 58; Bank of Montreal v. Erickson and Erickson, 57 B.C.L.R. 72 (B.C.C.A.))

           In this case, it is unfortunate that the respective parties' counsel have sworn affidavits describing differing
versions of the telephone call which occurred on December 10th, 1985. In any event, I am satisfied that there was an



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unfortunate misunderstanding between counsel, and that there was no wilful or deliberate failure on the part of the
defendants' counsel to take steps to file a statement of defence.

            On reviewing the affidavit of Mr. Taylor sworn January 17th, 1986, and the further affidavit of Mr.
Taylor sworn January 21st, 1986, to which is appended the proposed statement of defence, I am also satisfied that
there are sufficient facts to support the defendants' contention that they have a meritorious defence to advance. I am
also satisfied that the defendants moved in a reasonably prompt fashion and that there was no delay in bringing on
this application.

           Upon the defendants paying, within thirty days of the date of this judgment, to the plaintiff's solicitor, the
costs thrown away as a result of the judgment by default being entered, and the costs of this application, the
judgment by default entered against the defendants shall be set aside and the defendants shall forthwith file a
statement of defence.




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                                                                  Schmid v. Lacey
British Columbia Court of Appeal
Judgment: November 18, 1991
McEACHERN, C.J.B.C.: The action is for damages for trespass, particularly cutting down trees, or logging the
plaintiffs‘ property.

         After logging, there was some discussion between the defendants and an agent of the plaintiffs but nothing
happened whereupon the plaintiffs brought action. The Writ was served but the defendant chose not to respond to it
and ultimately judgment was taken in default of appearance with damages to be assessed.

         The defendant applied promptly to have the default judgment set aside but the learned chambers judge
declined to do so and dismissed the application.

         The defendant raises two principal arguments that he says should have persuaded the learned chambers
judge to allow the action to proceed to trial.

          Firstly, he says that he did not respond to the Writ because he was under the impression that a settlement
had been reached. This is set out in the barest possible terms in an affidavit filed originally by the defendant‘s
solicitor but then that affidavit was confirmed by an affidavit sworn by the defendant. The affidavit is very deficient
in particulars. The allegation in the affidavit is that the defendant had been negotiating a resolution of this matter
with an agent of the plaintiffs and he was under the impression that they had reached a settlement. That is all he says
and there are no particulars of the settlement. In my view, that is not a sufficient allegation that should have
persuaded the chambers judge to order the action to proceed.

          Secondly, the defendant says that he had ―hired another person to log trees on his property‖ and he goes on
in his very sparse affidavit to say that this other person had logged the plaintiffs‘ without his knowledge, consent, or
authority. There are two problems with that allegation.

         Firstly, there is an unanswered affidavit from the plaintiff that she brought this problem to the attention of
the defendant at the beginning of these operations and the defendant refused to discontinue, alleging that he had
measured the country and that he was logging on his own side of the line which is now conceded to be wrong.

         Secondly, and I think more importantly, the defendant furnishes no particulars whatsoever as to the terms
of the hiring of this other person. Without further information, this allegation has not been raised to the level of a
ground that would persuade a chambers judge to order the action to proceed to trial.

          For these reasons and for the reasons given by the learned chambers judge I would dismiss this appeal. I
should add that I would have thought at this stage in the legal history of this province, counsel who are advising
clients on how to set aside a default judgment would know that a high degree of care is required in the preparation of
affidavits. That degree of care has not been shown and in fact the affidavits fall far below the standard required in
this province.

LOCKE, J.A.: I agree. I would like to add just this. The leading case in setting aside a default judgment is that of
Bank of Montreal v. Erickson (1984), 57 B.C.L.R. 72, a case in this Court. The phrase was used in there as to the
third ground that the applicant ―has a meritorious defence, or at least a defence worthy of investigation.‖ In my
opinion, the phrase ―worthy of investigation‖ does not mean that one is merely entitled to make the allegation. One
must, I think, descend to details such as to enable the judge to correctly exercise his mind upon whether there is
indeed such a defence. With that addition I agree with the judgment that has just been delivered.

CUMMING, J.A.: I agree with the disposition proposed by my brother the Chief Justice and with the additional
comments expressed by Mr. Justice Locke.

McEACHERN, C.J.B.C.:           I agree also with what Mr. Justice Locke has said. The appeal is dismissed.



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                                                    Professional Conduct Handbook

CHAPTER 11
RESPONSIBILITY TO OTHER LAWYERS

Undertakings

7.       A lawyer shall give no undertaking that cannot be fulfilled, shall fulfil every undertaking given, and shall
         scrupulously honour any trust condition once accepted. Undertakings and trust conditions should be
         written, or confirmed in writing, and should be unambiguous in their terms.

…

Proceeding in default

12.      A lawyer who knows that another lawyer has been consulted in a matter shall not proceed by default in the
         matter without inquiry and warning, unless expressly instructed by the client to the contrary, in which case
         such instructions should be communicated at the outset of the matter.

…

Threatening to report another lawyer

15.      A lawyer shall not threaten to report another lawyer‘s past illegal or unprofessional conduct to the Law
         Society.




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                                           Global Light Telecommunications Inc. v. GST
                                                     Telecommunications, Inc.

British Columbia Supreme Court
Vancouver, British Columbia
Judgment: filed May 18, 1999

1.      SATANOVE J.: - The defendants GST Telecommunications Inc. (―GST‖) and GST Telecom, Inc.
(―Telecom‖) have similar applications under Rule 14(6) for Declarations that this Court has no jurisdiction over
them or alternatively, that this Court declines jurisdiction in favour of another forum. Telecom also seeks an order
under Rule 13(10) to set aside service ex juris of the Writ and Statement of Claim on it.

2.     Telecom is a subsidiary company of GST U.S. Inc. (―GUS‖), which in turn is a wholly-owned subsidiary of
GST. GST and Telecom share common counsel and purport to share a common interest in the litigation.

3.      The basis of their application is that no real and substantial connection exists between them or the subject
matter of the litigation and British Columbia. Alternatively, they say British Columbia is not the convenient or
appropriate forum and that the parties should adjudicate their dispute in the Washington, U.S.A. courts.

4.       The plaintiffs, Global Light Telecommunications Inc. (―Global‖) and GST Mextel, Inc. (―Mextel‖), claim
this Court has jurisdiction over the defendants based on service within the jurisdiction of GST and proper extra
provincial service over Telecom. They also say there is a real and substantial connection to British Columbia. They
say the defendants can show no jurisdiction which is clearly more convenient for the adjudication of the merits.

FACTS

5.      It is important to note at the outset that the real lis between these parties, regardless of the content of the
Canadian or American pleadings, appears to concern ownership of 49% of a public telecommunications project in
Mexico.

6.       GST claims to have negotiated the opportunity to develop a digital fibre optics telecommunication network
in Mexico in 1996. The GST Board of Directors authorized GST to proceed with a joint venture through a wholly-
owned subsidiary with Grupo Varo, a Mexican consortium, to design, construct and operate the telecommunications
network. The Mexican company which was licensed by the Mexican government to provide the
telecommunications service was called Bestel S.A. de C.V. (―Bestel‖). The parties refer to the telecommunications
project as the ―Bestel Opportunity‖.

7.       GST claims it spent US$2 million developing the Bestel Opportunity. In June 1996 Mextel was
incorporated as a wholly-owned subsidiary of GUS, to hold GST‘s 49% interest in the Bestel Opportunity. Grupo
Varo‘s company Odetel was to hold the other 51% interest in Bestel. Telecom was designated to be Bestel‘s
administrator for the construction contract.

8.       The shares of Mextel ended up being held by the plaintiff, Global, not GUS or GST. Originally, GST held
a substantial majority number of Global shares but through private placement and exercising of warrants and stock
options, GST‘s shareholdings have been significantly reduced to a minority interest only.

9.        GST‘s main complaint is that certain of its directors, Messrs. Warta, Irwin, Blankstein, Kamsky, Legault
and Watson (the ―Directors‖) caused the Mextel shares to be transferred from GUS to Global for no
consideration. GST alleges that the GST Directors surreptitiously loaded up on Global units and options before the
transfer, with a view to making enormous profit for themselves.

10.       On October 20, 1998, GST commenced an action in the Superior Court of California alleging, among other
things, that the Directors effected a fraud on GST by transferring the Bestel Opportunity, worth US$200 million, to a



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Vancouver Stock Exchange shell company (Global), with no compensation to GST. The suit does not seek damages,
but rather the return of all equitable and legal interest in the Bestel Opportunity to GST.

11.      On December 23, 1998, the defendants in the California action filed a motion for a Declaration that
California was not the convenient forum, stipulating that they would submit to the jurisdiction of British
Columbia. Judge Baines of California indicated on January 21, 1999 that British Columbia was the more convenient
forum.

12.      Judge Baines found California had little interest in a fraud action between Canadian corporations dealing
with a possible acquisition of a business opportunity in Mexico. Also, the activities involved the Vancouver Stock
Exchange and there was some question whether the court could exercise jurisdiction over that Exchange. Judge
Baines said the more convenient forum appeared to be British Columbia but if for some reason that turned out to be
unavailable or not efficient, he would resume the matter. On February 5, 1999 he granted a stay of the California
action. GST and Telecom have appealed that order.

13.       On December 16, 1998, GST, Telecom and GUS launched an action in the United States District Court,
Southern District of New York, seeking damages against solicitor and director Steven Irwin, and his law firm. Irwin
is alleged to have negotiated both sides of the alleged transfer of the Bestel Opportunity to Global while stocking up
on Global shares himself.

14.     On January 25, 1999, Mr. Warta sued GST and others in the Superior Court of Washington under an
employment contract which contained a term requiring any suit between the parties to be brought in Seattle,
Washington, U.S.A. He alleged that due to a change in the control of GST, he was wrongfully discharged as the
Chief Executive Officer of GST. He continued to act as a consultant for GST but was never paid.

15.      GST, Telecom and GUS defended the Warta lawsuit on February 24, 1999 on the basis that Mr. Warta is
estopped by his breach of fiduciary duty from suing under the employment contract. They have counterclaimed for
the return of the Bestel Opportunity and seek damages for that alleged fraud and another alleged fraud regarding the
―Magnacom‖ entities which is not a part of the dispute before me.

16.      On January 27, 1999, this action was commenced in British Columbia. In this action Global and Mextel
are the plaintiffs suing GST and Telecom. Global and Mextel allege that in September 1996, GST agreed to transfer
any rights it may have had in the Bestel Opportunity to Global in exchange for a number of shares in an amount to
be determined between the parties and approved by the Vancouver Stock Exchange (the ―Transfer
Agreement‖). They allege that the amount of shares was to reflect the real value of the Bestel Opportunity at the
time of the transfer, which they say was much less than its value after Global had raised millions of dollars to
complete the construction of the network.

17.      The plaintiffs then plead that GST and Telecom breached the alleged Transfer Agreement by commencing
the California action and seeking the return of the Bestel Opportunity. They allege that GST and Telecom have
interfered with the plaintiff‘s economic relations with an intention to cause harm by contacting representatives of
Odetel, interfering with Global, Mextel and Odetel in carrying through with the joint venture and by claiming a right
to the Bestel Opportunity in the California action.

18.       As is apparent from above, the relations between these various companies have degenerated and this has
resulted in a multitude of litigation here and in the United States. I do not intend to deal with the merits of the
dispute in any detail, although there has been copious material filed and lengthy submissions made by the
defendants in this regard. In my view, a chambers judge on an applications such as this should be careful not to
make findings on the merits. My review of the documents have satisfied me that the plaintiffs have made out a
sufficiently strong, arguable case for some sort of agreement, at least in principle, regarding the transfer of the Bestel
Opportunity. However, I am also of the view that the defendants‘ claim of fraud may have some merit and that this
litigation will not be resolved easily.




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19.    The issue before me is whether to grant a stay of the British Columbia action, either because a British
Columbia court has no jurisdiction or should exercise its discretion to refuse jurisdiction in favour of an American
forum.

LEGAL PRINCIPLES

20.       The law of conflicts is a fascinating and complex subject. Cases abound where the subject has been
discussed. I have been fortunate that our British Columbia Court of Appeal recently has decided two cases which
deal with the very issues before me. 472900 B.C. Ltd. v. Thrifty Canada Ltd., [1998] B.C.J. No. 2944, December
18, 1998, Vancouver Registry No. CA023129 (B.C.C.A.) was decided by a panel of five Justices that overturned the
earlier decision of Avenue Properties Ltd. v. First City Development Corporation Ltd. (1986), 32 D.L.R. (4th) 40
(B.C.C.A). A second decision, Westec Aerospace Inc. v. Raytheon Aircraft Co., [1999] B.C.J. No. 871, April 19,
1999, Vancouver Registry No. CA025410 (B.C.C.A.) reaffirmed the Thrifty decision and applied its principles to a
factual situation which bears similarities to the one at bar. An earlier decision, Cook v. Parcel, Mauro, Hultin &
Spaanstra, P.C. (1997), 31 B.C.L.R. (3d) 24 (B.C.C.A.), dealt with the test to be applied in determining jurisdiction
simpliciter over foreign entities.

21.      A review of these three decisions and others has provided me with the following helpful guidelines:

         21a      1. Regardless of whether an application is brought under Rule 13(10) or 14(6), the court must
         determine whether a real and substantial connection exists between the court and either the defendant or the
         subject matter of the litigation in order to assert jurisdiction simpliciter over the proceedings. (Cook v.
         Parcel, supra)

                     Counsel for the plaintiffs argued that if the plaintiffs bring themselves within one of the
                     circumstances in Rule 13(1) they have shown a sufficient real and substantial connection
                     to British Columbia for this Court to assert jurisdiction simpliciter. Counsel for the
                     defendants argued that the Rule 13(1) factors may indicate prima facie jurisdiction, but
                     they are not decisive. In my view, the Court of Appeal in Cook v. Parcel has clearly
                     stated that the test is still one of real and substantial connection. Although the factors in
                     Rule 13(1) suggest a real and substantial connection, there may be situations where the
                     circumstances required therein create a connection, but not one that meets the criteria of
                     real and substantial.

         21b.     2. If a court decides it has jurisdiction simpliciter over the matter, it may still exercise its
         discretion to decline jurisdiction if there is a clearly more convenient or appropriate forum elsewhere to
         which the defendant will attorn. (Cook, Thrifty, Westec, supra)

         21c      3. A real and substantial connection test is applicable not only to determine jurisdiction
         simpliciter but also in evaluating the appropriateness of a particular forum.

         21d     4. When it comes to a determination of the appropriate forum the onus is on the defendants to
         show another forum that that is clearly more convenient or appropriate.

                     (Antares Shipping Corporation v. Capricorn (1976), 65 D.L.R. (3d) 105 (S.C.C.);

                     Amchem Products Inc. v. British Columbia Workers Compensation Board (1993), 77
                     B.C.L.R. (2d) 62 (S.C.C.))

         21e       5. The factors commonly considered in determining a real and substantial connection are the
         parties‘ residences and places of business, where the cause of action arose, where the damage was suffered,
         any juridical advantages and disadvantages, convenience and expense, governing law and the existence of
         any parallel proceedings. (Amchem, supra)




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         21f      6. The right of the plaintiff to sue in the court of his choice is not now a significant factor. It has
         been replaced by the governing principle of comity of nations. (Thrifty, Westec, supra)

         21g       7. Parallel proceedings dealing with the same subject matter must be avoided unless the party
         resisting the application to stay the proceedings can demonstrate a possible loss of a juridical advantage. In
         determining whether proceedings are parallel the court must look at the substance of the dispute and not on
         how it is framed in any given action. (Thrifty, Westec, supra)

         21h      8. In determining whether another forum is more appropriate the choice is to be made on the basis
         of factors designed to ensure, if possible, that the action is tried in the jurisdiction that has the closest
         connection with the action and the parties and not to secure a juridical advantage to one of the litigants at
         the expense of others in a jurisdiction that is otherwise inappropriate. (Westec, supra)

         21i      9. If the court is satisfied that both British Columbia and the foreign courts are appropriate fora
         and one is not clearly more appropriate than the other, then the court, to some degree, will necessarily
         favour the party who initiates the proceedings first. (Westec, supra)

JURISDICTION SIMPLICITER

22.       GST is a federally incorporated Canadian corporation with its registered office in British Columbia. It has
an attorney for service in British Columbia. The transfer agent and registrar of GST shares is the Montreal Trust
Company of Canada situated in Vancouver, British Columbia. In other words, GST is not a foreign corporation, it is
a Canadian corporation domiciled in British Columbia because that is the situs of the shares where the register is
kept and from where they would be transferred. The shares, which represent the interest in the company, are subject
to the laws of Canada and the Vancouver Stock Exchange.

23.      Telecom does not have a presence in British Columbia. It is a Delaware corporation which carries on
business in Vancouver, Washington and perhaps other places.

24.      Global is incorporated in the Yukon Territories. The site of its control and management is Vancouver,
British Columbia and therefore it is resident in British Columbia. Mextel is incorporated in Delaware but has its
control and management in Vancouver, British Columbia and is therefore resident in British Columbia.

25.      In order to determine whether a real and substantial connection to British Columbia exists in this case, it is
necessary to return to the nature of the dispute between the parties. At the heart of the plaintiffs‘ allegation in
contract and tort is their assertion that a binding agreement exists with the defendants that the Bestel Opportunity via
Mextel shares would be transferred to Global in consideration of shares in Global being transferred back to GST.

26.     GST is listed on the VSE and subject to the rules and regulations of the VSE, as is Global. Any transfer of
Global shares to GST would be subject to VSE approval. The Control Agreement dated October 12, 1996, between
GST and Odetel, states that GST‘s relationship with Global is to be governed by Canadian law. Therefore, if a
binding Transfer Agreement does exist, as alleged by the plaintiff, then the defendants‘ breach in refusing to
complete the Agreement and in seeking the return of the Mextel shares has caused losses to the plaintiffs in British
Columbia.

27.       The above factors all point to a real and substantial connection between the plaintiffs and the defendant
GST and British Columbia. The connection with Telecom is less apparent. Telecom had nothing to do with the
Transfer Agreement: it was to be the administrator of the Bestel contract. However, GST has seen fit to include it as
a plaintiff in its Californian action and its Washington counterclaim due to the overlap involving both companies. It
is incongruous for it now to say that Telecom is not a part of the dispute with Global and Mextel.

28.      I find that the plaintiffs have established that this Court has jurisdiction simpliciter over both defendants for
the purposes of Rule 13(1) and 14(6). The onus now shifts to the defendants to establish a clearly more appropriate
forum.




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FORUM CONVENIENS

29.     The defendants concede that California is likely not an appropriate forum and that the action should not
have been started there. This concession is curious in light of the ongoing appeal in that State.

30.     The defendants now claim that Washington is the more appropriate forum. However, most of the
defendants‘ submissions were aimed at showing why British Columbia was not the appropriate forum and not
whether Washington was clearly more appropriate.

31.    The submissions made by the defendants with respect to why Washington should be favoured can be
summarized as follows:

         (a)         The plaintiffs‘ claim of economic interference is grounded in the defendants‘ action and
                     counterclaim commenced in California and Washington, respectively;

         (b)         GST, Telecom and GUS reside in Washington and each of the Directors attended
                     meetings, made representations and took steps there relating to the transfer of the Bestel
                     Opportunity;

         (c)         There are parallel proceedings in Washington;

         (d)         There are juridical advantages to the defendants in Washington which are not available in
                     British Columbia

32.      I will deal with each of these in turn:

32a      (a)         Economic Interference.

         This aspect of the plaintiffs‘ claim is novel. In essence, they are suing the defendants for having
         sued them in California. There is some authority in the form of obiter dicta in Banco Do Brasil
         S.A. v. De Alexandros G Tsavlins, [1992] 3 F.C. 735 (C.A.) that the tort of economic interference
         occurs at the place from which the threats were issued, which in the case at bar would be
         California. The Washington action was commenced only the day before the British Columbia
         action and it is not included as a particular of economic interference

32b      (b)         Residency of the Defendants.

         The defendants may be residents of Washington, but I have found that the plaintiffs are residents
         of British Columbia. Although the plaintiffs‘ choice of forum no longer prevails, neither should
         the defendants, all things being equal.

32c      (c)         Parallel Proceedings.

         The plaintiffs submit that the Washington proceeding is not parallel in that it really is a wrongful
         dismissal suit to which the defendants have tacked on an unrelated counterclaim. That may be
         true, but if the counterclaim proceeds in Washington, it appears that the issue concerning the
         transfer of the Bestel Opportunity will be one of the issues litigated in that action.

         If parallel proceedings exist and the foreign forum is not shown to be clearly more appropriate,
         then comity suggests that deference should be given to the court which took jurisdiction over the
         parties or the subject matter first.

         The Washington action may have started a day earlier, but I find that the subject matter and issues
         only became ―parallel‖ on the filing of the counterclaim which was February 24, 1999 and after
         the British Columbia action was commenced.



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         The first court to consider jurisdiction over the dispute was in California, but that court declined
         jurisdiction in favour of British Columbia. The principle of comity should be respected not only
         when a foreign court wishes to assume jurisdiction but also when it wishes to decline jurisdiction
         on the basis that the matter should be heard in British Columbia

32d      (d)         Juridical Advantage.

         The defendants submitted that they would lose the juridical advantages of a jury trial, deposition
         of witnesses, Washington securities law and the Washington Consumer Protection Act.

         Madam Justice Rowes stated in Westec, supra that a juridical advantage must be substantive and
         not procedural, such as the deposing of witnesses. She also said it must not be based on unstated
         and unsavory assumptions about the quality of American justice. The corollary should also be
         true. This Court should not assume that a Washington jury is more capable of rendering a correct
         and impartial verdict than the judgment of a British Columbia Supreme Court Justice.

         The defendants filed a letter from Justice Robert F. Utter (retired) of Olympia, Washington
         opining on the availability of certain remedies under Washington law. Nothing in that letter
         indicates to me a certain advantage under Washington statutes that would not be available to the
         defendants here under statute or in common law.

33.      In conclusion, the defendants have failed to satisfy the onus upon them to show that Washington is clearly a
more appropriate forum than British Columbia to deal with the issues between the parties. Witnesses reside in both
places, damages were suffered by the plaintiffs and GST in British Columbia, the governing law over the
mechanism of transferring shares in Global or Mextel to GST will be British Columbia, and the Bestel issue was
raised in British Columbia before it was raised in Washington. There is no true juridical disadvantage to the
defendants in subjecting themselves to British Columbia courts.

34.     For all the reasons stated by me in paragraphs 32-34, I am of the view that justice can and should be done
between the parties in British Columbia, and I refuse to decline the jurisdiction of this court.

35.      The defendants‘ applications are dismissed.




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                                                         K.L.B. v. British Columbia
2003 SCC 51
1.       McLACHLIN C.J.: - This appeal raises the question of whether, and on what grounds, the government
can be held liable for the tortious conduct of foster parents toward children whom the government has placed under
their care. The appeal was heard together with M.B. v. British Columbia, 2003 SCC 53, and E.D.G. v. Hammer,
2003 SCC 52, which raise many of the same issues.

I.       Background

2.       The appellants, K.L.B., P.B., H.B. and V.E.R.B., are siblings. Prior to placement in foster care, they lived
in extreme poverty. Although their mother, in the trial judge‘s words, ―was resilient, resourceful and loved the
children‖ ((1998), 51 B.C.L.R. (3d) 1, at paras. 2), their father was an alcoholic and frequently violent toward their
mother. After an incident in 1966, she brought the two elder boys to social services and requested an emergency
placement. Shortly after this, the two younger children were apprehended as well. All four children were placed in
the same foster home, the Pleasance home. Later, the children were placed in a second foster home, the Hart home.
Placement was not fought by either parent. Their mother felt it would be better for them. She was confident they
would be placed in a stable, nurturing home.

3.       The children suffered abuse in both foster homes. Instead of being treated as family members and shown
love and trust, they were subjected to harsh and arbitrary disciplinary measures. They were blamed for things they
did not do, humiliated in front of each other, and made to feel worthless.

4.       Prior to placing the children in the Pleasance home, Ministry social workers had interviewed Mrs.
Pleasance. They judged her to be cooperative and caring. Her file, however, contained a 1959 report stating that she
was dishonest and insincere about what went on in her home. It also contained repeated warnings from subsequent
years that placements should only be made in her home on a short-term basis. The social workers disregarded these
warnings because they believed it was most important to keep children from the same family together and the
Pleasance home was one of the few homes that would take all of them The Pleasances normally took on up to eight
foster children, four times what was regarded as the ideal number. The children did not tell anyone about the abuse.
Because social workers assumed they would be unhappy in any type of foster home, their unhappiness was not
probed. Social workers visited the home only infrequently, sometimes not for several months, because of personnel
shortages.

5.        The social workers did, however, continue their search for a more permanent placement for the children,
and eventually they were moved to the Hart home This home, too, was overplaced; but again, social workers did not
want to separate the children. Because there was no exchange of records between offices at the time, the Ministry
social workers did not know that the Harts had been rejected for further foster placement in Alberta out of concern
that they had drugged a child in their care. Nor did they know that when living in Dawson Creek, B.C., the Harts had
their foster children removed after Mrs. Hart had hit a foster child with a knife. The social workers met with the
Harts and were favourably impressed. They did not read the little file information they had on the Harts prior to
making the placement and they did not ask the Harts about their history as foster parents. They assumed the home
was a good one because the Harts had several adopted sons. When a social worker finally read the Hart file, she
concluded the placement was ―iffy‖; but on the assumption that it was only short term, she decided not to alter the
placement.

6.      The abuse and humiliation continued at the Hart home. The children were also exposed to inappropriate
sexual behaviour by the Harts‘ older adopted sons. On one occasion, K. was sexually assaulted by one of these
young men. The children said nothing to their mother. After the first six weeks, social workers assumed all was well
and stopped their regular visits. Finally, on a visit with their mother, the children blurted out that Mrs. Hart had
beaten K. with an electric cord, and that he had welts from the beating. Upon discovery of this, social workers
removed all four children from the Hart home.




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7.        At trial, Dillon J. found that the government had failed to exercise reasonable care in arranging suitable
placements for the children and in monitoring and supervising these placements. She also found that the children
suffered lasting damage as a result of their stays in the two homes. She rejected the defence that the tort actions were
barred by the British Columbia Limitation Act, R.S.B.C. 1996, c. 266. Consequently, in addition to allowing K.‘s
claim for sexual abuse, she found the government directly liable to all four children for its negligence in the
placement and the supervision of the children and for breach of its fiduciary duty to the children; and she found it
vicariously liable for the torts committed by the foster parents (including both their physical and their sexual abuse).
However, Dillon J. made low damage awards, on the grounds that the children would in any case have had
difficulties as adults because of the impoverished circumstances of their birth family.

8.       The British Columbia Court of Appeal allowed the Crown‘s appeal ((2001), 87 B.C.L.R. (3d) 52, 2001
B.C.C.A. 221). All three judges found that the appellants‘ claims were statute-barred, with the exception of K.‘s
claim for sexual assault. In addition, all three judges overturned the ruling that the government had breached its
fiduciary duty to the children. However, Mackenzie and Prowse JJ.A. upheld the trial judge‘s conclusion that the
government was vicariously liable and in breach of a non-delegable duty of care in the placement and supervision of
the children. McEachern C.J.B.C. held that liability could not be grounded on either of these headings.

II.      Issues

9.       The appellants appeal to this Court on three issues: first, whether their claims are statute-barred; second,
whether the Court of Appeal erred in failing to find a breach of fiduciary duty; and third, whether the trial judge
erred in her approach to damages. The Crown has not cross-appealed the Court of Appeal‘s holdings on the issues
of vicarious liability and breach of a non-delegable duty. However, because these doctrines are at issue in the
companion cases of M.B. v. British Columbia, supra, and E.D.G. v. Hammer, supra, and because it is desirable to
develop the doctrines of negligence, vicarious liability, non-delegable duty and fiduciary duty in a coordinated and
systematic way, all of the doctrines will be discussed here

10.      The questions to be dealt with are therefore:

         (1)         Is there any legal basis on which the government could be held liable for the harm that the
                     appellants suffered in foster care?

         (2)         Are the appellants‘ tort actions barred by the Limitation Act?

         (3)         What is the proper basis for assessing damages for child abuse by a parent or foster parent, and did
                     the trial judge err in her assessment?

III.     Analysis

A.       Is There Any Legal Basis on Which the Government Could Be Held Liable for the Harm that the Appellants
         Suffered in Foster Care

11.      Three grounds of government liability were canvassed by the trial judge, and a fourth added by the Court of
Appeal: (1) direct negligence by the government; (2) vicarious liability of the government for the tortious conduct of
the foster parents; (3) breach of non-delegable duty by the government; and (4) breach of fiduciary duty by the
government.

         1.          Direct Negligence by the Government

12.      This ground of liability requires a finding that the government itself was negligent. Direct negligence, when
applied to legal persons such as bodies created by statute, turns on the wrongful actions of those who can be treated
as the principal organs of that legal person. Both courts below held that the government had a duty under the
Protection of Children Act, R.S.B.C. 1960, c. 303, to place children in adequate foster homes and to supervise their
stay, and that this duty had been breached.




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13.      These unchallenged findings are fully supported on the record. Before turning to this, however, it is worth
noting that the private nature of the abuse may heighten the difficulty of proving the abuse and its connection to the
government‘s conduct in placement and supervision. As in other areas of negligence law, judges should assess
causation using what Sopinka J., citing Lord Bridge in Wilsher v. Essex Area Health Authority, [1988] 2 W.L.R.
557, at p. 569, referred to as a ―robust and pragmatic approach‖ (Snell v. Farrell, [1990] 2 S.C.R. 311, at p. 330 ).
As Sopinka J. emphasized, ―causation need not be determined [with] scientific precision‖ (Snell, at p. 328). A
common sense approach sensitive to the realities of the situation suffices.

14.       Turning first to the duty of care, the Act stipulates, in s. 8(12), that the Superintendent of Child Welfare
must make such arrangements for the placement of a child in a foster home ―as will best meet the needs of the
child‖. This imposes a high standard of care. In most contexts, the law of negligence requires reasonable care, not
perfection: Challand v. Bell (1959), 18 D.L.R. (2d) 150 (Alta. S.C.); Ali v. Sydney Mitchell & Co., [1980] A.C. 198
(H.L.). In the case of those exercising a form of control over a child comparable to that of a parent, however, the law
imposes a heightened degree of attentiveness. The ‖careful parent test‖ imposes the standard of a prudent parent
solicitous for the welfare of his or her child (Durham v. Public School Board of Township School Area of North
Oxford (1960), 23 D.L.R. (2d) 711 (Ont. C.A.), at p. 717; McKay v. Board of The Govan School Unit No. 29 of
Saskatchewan, [1968] S.C.R. 589; Myers v. Peel County Board of Education, [1981] 2 S.C.R. 21). This is the test
that governs the placement and supervision of children in foster care under the Protection of Children Act. It does
not make the government a guarantor against all harm. But it holds it responsible for harm sustained by children in
foster care, when, judged by the standards of the day, it was reasonably foreseeable that the government‘s conduct
would expose these children to harm of the sort that they sustained.

15.       It is reasonably foreseeable that some people, if left in charge of children in difficult or overcrowded
circumstances, will use excessive physical and verbal discipline. It is also reasonably foreseeable that some people
will take advantage of the complete dependence of children in their care, and will sexually abuse them. To lessen the
likelihood that either form of abuse will occur, the government must set up adequate procedures to screen
prospective foster parents. And it must monitor homes so that any abuse that does occur can be promptly detected.

16.       This appeal and the appeals in the two companion cases stand to be judged by the standards of the day for
placement and supervision, in other words the standard of a prudent parent at that time. The standards prevailing in
the 1960s and early 1970s were lower than those of today, because there was less awareness of the risk of abuse in
foster homes. The trial judge did not apply today‘s standards, but proceeded on the basis that the standards of the
time required proper assessment of the proposed foster parents and whether they could meet the children‘s needs;
discussion of the acceptable limits of discipline with the foster parents; and frequent supervisory visits in view of the
fact the foster homes were ―overplaced‖ and had a documented history of breach. She found that the government
negligently failed to meet this standard (paras. 74), and that this negligence was causally linked to the physical and
sexual abuse suffered by the children and their later difficulties (paras. 143). It is clear from these conclusions that
the government failed to put in place proper placement and supervision procedures, as required by the Act. The
system of placement and supervision was faulty, permitting the abuse that contributed to the children‘s subsequent
problems.

17.      It follows that the government is liable to the appellants on the basis of direct negligence, subject to the
defence of the limitation period, discussed below.

         …..[the Court goes on to find that although the government could be found liable on the basis of
         direct negligence, no liability rests under the causes of breach of non-delegable duty, breach of
         fiduciary duty, or vicarious liability for the actions of the foster parents]….

B.       Are the Appellants‟ Tort Actions Barred by the Limitation Act?

18.      The Limitation Act imposes a two-year limitation period for actions based upon personal injuries resulting
from torts (s. 3(2)), beginning when a child attains the age of majority: s. 7(1)(a)(i). The appellants lived in the
Pleasance and Hart homes from 1966 to 1968. The youngest of the appellants reached the age of majority in 1980.
Their actions were not commenced until 1994 (K.), 1995 (V.) and 1996 (H. and P.).




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19.      The appellants argue that their tort actions are not statute-barred because their causes of action were not
reasonably discoverable ―prior to commencement of the actions‖. They rely on the trial judge‘s finding that ―[n]one
of the plaintiffs had a substantial awareness of the harm and its likely cause prior to commencement of these
actions‖. This finding was based upon the evidence of a psychologist, Dr. Ley, who assessed the appellants after
they had commenced their actions and concluded that they lacked a ―thorough understanding‖ of the psychological
connection between their past abuse and their current state.

20.       This approach to reasonable discoverability is problematic. It rests on evidence that the plaintiffs lacked
sufficient awareness of the facts even after they had brought their actions. Since the purpose of the rule of
reasonable discoverability is to ensure that plaintiffs have sufficient awareness of the facts to be able to bring an
action, the relevant type of awareness cannot be one that it is possible to lack even after one has brought an action.
The ―thorough understanding‖ proposed by Dr. Ley -- an understanding not present even after suit was launched --
thus sets the bar too high.

21.       All of the appellants were aware of the physical abuse they sustained at the time that it occurred. They may
not have been aware of the existence of a governmental duty to exercise reasonable care in making and supervising
their placements. They may also not have been immediately aware of the harm that the abuse caused to them or of
the causal link between the abuse and the harm. Indeed, in M. (K.) v. M. (H.), supra, La Forest J., writing for the
majority, acknowledged that awareness of the connection between harm suffered and a history of childhood abuse is
often elusive. However, in 1986, K. and V. consulted with a lawyer about the possibility of receiving compensation
from the government for damage suffered while in foster care. The lawyer told them that he thought they had a
cause of action, and suggested they consult a lawyer in Victoria who specialized in such claims. V. did not follow up
on this advice, perhaps as a result of a sense of powerlessness and a concern that she was to blame. In 1990, three of
the appellants made a complaint to the Ombudsman, who informed the Superintendent that ―[a]ll of the
complainants are seeking financial compensation for the events which occurred while in the care of the
Superintendent‖. In June of 1991, all of the appellants met with a Ministry representative. With his assistance, they
made a formal request for counselling and for a settlement from the government for physical and mental abuse
suffered in the Pleasance and Hart homes.

22.       The appellants could not have come away from these meetings with anything less than an awareness that
the government may have breached a duty that it owed to them, and that an action against the government would
have a reasonable prospect of success. They now contend that they did not have access to some of the information
that they needed in order to conclude that an action would have a ―reasonable prospect of success‖ because the
Crown failed to provide them with their child-in-care records. However, the only facts that are contemplated by the
statute as necessary for determining whether an action has a reasonable prospect of success relate to the existence
and the breach of a duty. The meetings between the appellants and various members of the government suggest that
the appellants, by June of 1991 at the latest, had acquired sufficient awareness of those facts to start the limitation
period running.

23.       The appellants also argue that the running of time should be postponed beyond 1991, on the grounds that
they were under a disability: s. 7(1)(a)(ii) of the Act. The Act defines disability as the state of being either (i) a
minor, or (ii) ―in fact incapable of or substantially impeded in managing his or her affairs‖, and places the onus of
proving that the running of time has been postponed under this provision on the person who is claiming the benefit
of the postponement: s. 7(9). The appellants have not established disability as required by the Act. While the trial
judge found that they suffered from a number of psychological difficulties, she made no finding that they had
difficulty managing their affairs at the relevant time.

24.      I would therefore uphold the Court of Appeal‘s conclusion that the appellants‘ claims were statute-barred.

….
IV.      Conclusion

63.     I would dismiss the appeal. The only cause of action that assists the appellants is direct liability in
negligence law, which the Court of Appeal correctly held to be statute-barred.
…..


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                                                                     Snyder v. Snyder

British Columbia Supreme Court
Victoria, British Columbia

Judgment: April 29, 1992

GOW J.: - This petition is for relief pursuant to Part 3 of the Family Relations Act and the issue is whether the suit
should have been brought by way of a writ of summons pursuant to Rule 60(1)(a):

         Unless joined with a divorce proceeding, a matrimonial action shall be commenced by a writ of
         summons to which shall be attached a statement of claim

OR

         is a ―matrimonial proceeding‖ to which Rule 60(1)(b) applies: Except where otherwise provided
         by enactment or these rules a matrimonial proceeding, other than a matrimonial action shall be
         made by originating application

         Rule 8(1) provides:

         Except where otherwise authorized by an enactment or these rules, every proceeding in the court
         shall be commenced by issuing a writ of summons

According to McLachlin and Taylor, British Columbia Practice (2d) at 8-1 this rule makes ―the proceeding by way
of writ of summons the residual proceeding for the purpose of the Rules‖.

         Rule 10(1) provides:

         An application, other than an interlocutory application or an application in the nature of an appeal, may be
         made by originating application where

         (a)         an application is authorized to be made to the court …

         On the other hand, Rule 1(13) provides:

         Where an enactment authorizes an application to the court or to a judge of the court, and, whether
         or not the enactment provides for the mode of application, the application shall be

         (a)         by originating application under Rule 10, or

         (b)         if the application is interlocutory, by interlocutory application under Rule 44.

         For the reasons stated in their annotation to this Rule (1-42) McLachlin and Taylor suggested that there was
some doubt as to whether an originating application to court authorized by an enactment was permissive and that the
residual originating process under the Rules of Court, namely, the writ of summons was available. In any event
Rule 8(17) provides:

        A proceeding under Part 3 of the Family Relations Act may be commenced by writ of summons whereas
Rule 8(13) provides:

         A proceeding under s. 2 of the Wills Variation Act shall be commenced by a writ of summons.




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Rule 1(8) provides these definitions:

         ―Action‖ means a proceeding commenced by a writ of summons.

         ―Matrimonial action‖ means an action under the Divorce and Matrimonial Causes Act.......... or
         under the Family Relations Act.

         ―Proceeding‖ means an action, suit, cause, matter, appeal or originating application and includes a
         proceeding under the Divorce Act, 1985.

         As McLachlin and Taylor note (1-32-40):

         The word ―proceeding‖ has replaced the word ―action‖ as a generic term to describe any process
         before the court

          Bewitched by the ―matrimonial action‖ of Rule 1(8) I had expressed the opinion that a suit brought under
Part 3 of the Family Relations Act was quintessentially a matrimonial action. Mr. Woods did not agree and requested
the opportunity to demonstrate that I was in error. I gave him the opportunity and he has.

         In the matter of the manner in which proceedings are commenced there seems to be in principle a
fundamental distinction between those having their origin in a statutory provision and all others. To the former Rule
1(13) presumptively applies. Of it Fraser and Horn in The Conduct of Civil Litigation in British Columbia under the
heading ―Proceedings Authorized by Statute‖ (Vol. 1, p. 139) say that it provides:

         in effect, that where an enactment authorizes an application to be made to the court by a particular
         mode or authorizes an application to be made to the court and does not specify the mode of
         application then, notwithstanding the provisions of the enactment, the application is to be made by
         originating application under Rule 10 or by interlocutory application under Rule 44

         In the result, the following provisions emerge from the Rules:

         (1)         Where an application which is originating in its nature is authorized to be made to the
                     court and the particular mode of application is specified in the Act or Regulations, then
                     (notwithstanding that the mode of application is called something different) the
                     proceeding must be commenced by petition (Rules 1(13) and 10(1)(a)).

         (2)         Where an application which is interlocutory in nature is authorized to be made to the
                     court and the particular mode of application is specified in the Act or Regulation then
                     (notwithstanding that the mode of application is called something different) the
                     application must be brought by notice of motion (Rules 1(13) and 44(1)).

         (3)         Where an enactment authorizes an application but is completely silent as to the mode of
                     application, then the proceeding, if originating in nature, must be commenced by petition;
                     if interlocutory in nature, the proceeding must be brought by notice of motion (Rule
                     1(13)).

         (4)         Where an enactment merely states that a court may make some order or exercise some
                     jurisdiction, then the nature of the enactment will determine whether the appropriate
                     procedure is by writ of summons, petition or notice of motion.

         (5)         Where an enactment authorizes an application in the nature of an appeal, then the
                     proceeding must be commenced by notice of appeal (Rules 10(1) and 49(4)).




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         (6)         Where the enactment authorizes a proceeding to be commenced, but does not specify that
                     it shall be commenced by an application to the court, then the proceeding must be
                     commenced by writ of summons (Rules 8(1)).

         (7)         A proceeding under the Wills Variation Act or under Part 3 of the Family Relations Act,
                     though described as an application in each statute, may be brought by writ of summons
                     (Rules 8(13) and 8(17)).

Part 3 of the Family Relations Act contains sections 43 to 55 and these sections are liberally sprinkled with the
phrase ―on application‖.

It seems that a proceeding under Part 3 of the Family Relations Act is not a proceeding by way of a matrimonial
action under Rule 60(1)(a) and ―matrimonial action‖ as defined in Rule 1(8) does not include a proceeding under
Part 3. Accordingly, I find that this petition complies with the Rules although if there is to be a trial of contested
issues, it may be desirable that orders be made under Rule 52(11).




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                                       WEEKS 3 & 4: Court Jurisdiction Proceedings and Transfer Act


                                           Court Jurisdiction Proceedings and Transfer Act,
                                                           S.B.C. 2003, c.28


Part 1 -- Interpretation

Definitions

         1           In this Act:

         ―person‖ includes a state;

         ―plaintiff‖ means a person who commences a proceeding, and includes a plaintiff by way of counterclaim
         or third party claim;

         ―proceeding‖ means an action, suit, cause, matter or originating application and includes a procedure and a
         preliminary motion;

         ―procedure‖ means a procedural step in a proceeding;

         ―state‖ means

                     (a)      Canada or a province or territory of Canada, and

                     (b)      a foreign country or a subdivision of a foreign country;

         ―subject matter competence‖ means the aspects of a court‘s jurisdiction that depend on factors other than
         those pertaining to the court‘s territorial competence;

         ―territorial competence‖ means the aspects of a court‘s jurisdiction that depend on a connection between

                     (a)      the territory or legal system of the state in which the court is established, and

                     (b)      a party to a proceeding in the court or the facts on which the proceeding is based.

Part 2 -- Territorial Competence of Courts
of British Columbia

Application of this Part

         2(1)        In this Part, ―court‖ means a court of British Columbia.

         (2)         The territorial competence of a court is to be determined solely by reference to this Part.

Proceedings in a person

         3           A court has territorial competence in a proceeding that is brought against a person only if

                     (a)      that person is the plaintiff in another proceeding in the court to which the proceeding in
                              question is a counterclaim,

                     (b)      during the course of the proceeding that person submits to the court‘s jurisdiction,



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                     (c)      there is an agreement between the plaintiff and that person to the effect that the court has
                              jurisdiction in the proceeding,

                     (d)      that person is ordinarily resident in British Columbia at the time of the commencement of
                              the proceeding, or

                     (e)      there is a real and substantial connection between British Columbia and the facts on
                              which the proceeding against that person is based.

Proceedings with no named defendant

         4           A court has territorial competence in a proceeding that is not brought against a person or a vessel
                     if there is a real and substantial connection between British Columbia and the facts upon which the
                     proceeding is based.

Proceedings against a vessel

         5           A court has territorial competence in a proceeding that is brought against a vessel if the vessel is
                     served or arrested in British Columbia.

Residual discretion

         6           A court that under section 3 lacks territorial competence in a proceeding may hear the proceeding
                     despite that section if it considers that

                     (a)      there is no court outside British Columbia in which the plaintiff can commence the
                              proceeding, or

                     (b)      the commencement of the proceeding in a court outside British Columbia cannot
                              reasonably be required.

…

Real and substantial connection

         10          Without limiting the right of the plaintiff to prove other circumstances that constitute a real and
                     substantial connection between British Columbia and the facts on which a proceeding is based, a
                     real and substantial connection between British Columbia and those facts is presumed to exist if
                     the proceeding

                     (a)      is brought to enforce, assert, declare or determine proprietary or possessory rights or a
                              security interest in property in British Columbia that is immovable or movable property,

                     (b)      concerns the administration of the estate of a deceased person in relation to

                              (i) immovable property in British Columbia of the deceased person, or

                              (ii) movable property anywhere of the deceased person if at the time of death he or she
                                   was ordinarily resident in British Columbia,

                     (c)      is brought to interpret, rectify, set aside or enforce any deed, will, contract or other
                              instrument in relation to

                              (i) property in British Columbia that is immovable or movable property, or




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                           (ii) movable property anywhere of a deceased person who at the time of death was
                                ordinarily resident in British Columbia,

                     (d)   is brought against a trustee in relation to the carrying out of a trust in any of the following
                           circumstances:

                           (i)      the trust assets include property in British Columbia that is immovable or
                                    movable property and the relief claimed is only as to that property;

                           (ii)     that trustee is ordinarily resident in British Columbia;

                           (iii)    the administration of the trust is principally carried on in British Columbia;

                           (iv)     by the express terms of a trust document, the trust is governed by the law of
                                    British Columbia,

                     (e)   concerns contractual obligations, and

                           (i)      the contractual obligations, to a substantial extent, were to be performed in
                                    British Columbia,

                           (ii)     by its express terms, the contract is governed by the law of British Columbia, or

                           (iii)    the contract

                                    (A)       is for the purchase of property, services or both, for use other than in
                                              the course of the purchaser‘s trade or profession, and

                                    (B)       esulted from a solicitation of business in British Columbia by or on
                                              behalf of the seller,

                     (f)   concerns restitutionary obligations that, to a substantial extent, arose in British Columbia,

                     (g)   concerns a tort committed in British Columbia,

                     (h)   concerns a business carried on in British Columbia,

                     (i)   is a claim for an injunction ordering a party to do or refrain from doing anything

                           (i)      in British Columbia, or

                           (ii)     in relation to property in British Columbia that is immovable or movable
                                    property,

                     (j)   is for a determination of the personal status or capacity of a person who is ordinarily
                           resident in British Columbia,

                     (k)   is for enforcement of a judgment of a court made in or outside British Columbia or an
                           arbitral award made in or outside British Columbia, or

                     (l)   is for the recovery of taxes or other indebtedness and is brought by the government of
                           British Columbia or by a local authority in British Columbia.




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Discretion as to the exercise of territorial competence

         11 (1)      After considering the interests of the parties to a proceeding and the ends of justice, a court may
                     decline to exercise its territorial competence in the proceeding on the ground that a court of
                     another state is a more appropriate forum in which to hear the proceeding.

         (2)         A court, in deciding the question of whether it or a court outside British Columbia is the more
                     appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the
                     proceeding, including

                     (a)      the comparative convenience and expense for the parties to the proceeding and for their
                              witnesses, in litigating in the court or in any alternative forum,

                     (b)      the law to be applied to issues in the proceeding,

                     (c)      the desirability of avoiding multiplicity of legal proceedings,

                     (d)      the desirability of avoiding conflicting decisions in different courts,

                     (e)      the enforcement of an eventual judgment, and

                     (f)      the fair and efficient working of the Canadian legal system as a whole.

Conflicts or inconsistencies with other Acts

         12          If there is a conflict or inconsistency between this Part and another Act of British Columbia or of
                     Canada that expressly

                     (a)      confers jurisdiction or territorial competence on a court, or

                     (b)      denies jurisdiction or territorial competence to a court,

                     that other Act prevails.




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                                                                             WEEKS 3 & 4: Bank of Montreal


                                                         Bank of Montreal v. Erickson

Oral judgment: March 16, 1984.

SEATON J.A. (orally):— This is an appeal from an Order of a Supreme Court Judge setting aside a default
judgment.

        In January of 1982 the Bank claimed against the respondents on a guarantee in support of a promissory
note. They were unable to pay, and in January 1983 the Bank instituted proceedings. An appearance was filed, but
no defence was filed. In February 1983 a default judgment was entered. Nothing then seems to have happened until
the summer of 1983 when execution steps were taken, and then in the beginning of September when a motion was
made to set aside the default judgment. That application was granted and this appeal results.

        The material filed in support of the application was an affidavit by the two respondents, paragraph 2 of
which deals with:

         ―We owe the Court an apology for not taking steps within the allotted time frame to have the
         judgment set aside, and our first reason is that we have reached the limit of our endurance of legal
         harassment. The second reason is that we felt that if we went along with the Bank of Montreal,
         that they might recognize our desire to maintain a good relationship with them, and that they
         might help us preserve our equity. The third reason is that we saw no need to waste time or
         money on a bankrupt situation if there was no way to maintain a grip on our equities.‖

And then in paragraph 3 the applicants deal with the merits of their case, starting off thus:

         ―In view of what has transpired between the Bank of Montreal and ourselves, it is our belief that
         the plaintiff has no moral right to disrupt our personal life and our future, and we seek a Court
         decision to order them to cease and desist in their efforts to do so.‖

Details are then given of the steps that had been taken that are described as harassment and failure to loan further
money, the foreclosing on the company and on the respondents, and the paragraph ended up:

         ―We feel that, in view of their lack of concern for our equity, as a company and as individuals, the
         very equity they used for lending us funds, in the first place, that they now should be barred
         completely from any personal gain we might make in the future, as a security for our retirement
         and the rest of our lives.‖

         There are no reasons for judgment. We are told two things; that the Chambers Judge refused to hear
counsel for the appellant, and that Mr. Erickson was told by the Chambers Judge that he had no grounds. In this
Court Mr. Erickson‘s point is that he simply cannot pay the judgment. He does not deny that he owes the
money. He simply says that he cannot pay and he will have to go into bankruptcy.

          We have been referred to a decision of Hinds C.C.J, as he then was, in Miracle Feeds v. D. and H. Ent.
Ltd., 1979 10 British Columbia Law Reports page 58, where he sets out what in his view ought to be shown in order
to succeed on an application to set aside a default judgment. He concluded that the applicant must show first that he
did not wilfully or deliberately fail to enter an appearance or file a defence to the plaintiff‘s claim; secondly, that he
made his application to set aside the default judgment as soon as reasonably possible after obtaining knowledge of
the default judgment or explain any delay in bringing the application; and third, that he has a meritorious defence, or
at least a defence worthy of investigation. None of those three things has been shown here. In my view the Bank
was entitled to a judgment.

         The application to set aside the default judgment ought to be refused. I would allow the appeal.




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                                                           Leung v. 568263 BC Ltd.

2000 BCSC 577

C.L. SMITH J. [1]        The defendants 477738 BC Ltd. and James Yin Gim Leung applied for an order that the
Company Act part of this proceeding be set aside. The other defendant numbered company, 568263 BC Ltd., is
unrepresented and made no application.

[2]      Written submissions were received on January 24, 2000.

BACKGROUND

[3]      The action is based upon a claim that the plaintiffs (a married couple) loaned the defendants 477738 BC
Ltd. and James Yin Gim Leung the sum of $140,000 and have not been repaid. Further, the plaintiffs seek relief
under sections 200 and 227 of the Company Act, R.S.B.C. 1996, c. 62. They allege that the corporate defendant,
568263 BC Ltd., of which the plaintiff, Wing Lee Leung and the defendant, James Yin Gim Leung, were the
shareholders and directors, should compensate the plaintiff, Wing Lee Leung, because its affairs have been
conducted in a manner oppressive to that plaintiff. Thus, the plaintiffs have joined in one action claims for:
damages, breach of trust, repayment of monies had and received, an accounting, a tracing order or a charging order,
and an order pursuant to sections 200(1) and 227 of the Company Act.

[4]       The writ was issued June 16, 1999. On July 9, 1999 the defendants 477748 B.C. Ltd. and James Yin Gim
Leung brought an application to strike the endorsement as disclosing no reasonable cause of action, and alternatively
to set aside that part of the proceeding based on the Company Act. They also sought to set aside the Certificate of
Pending Litigation.

[5]      The plaintiffs allege in their Statement of Claim dated November 17, 1999 the following:

         (1)       The plaintiffs agreed with the defendants to invest money and to devote time and energy
         to running a restaurant business. The plaintiff Wing Lee Leung was to be the chef and run the
         kitchen and the defendant James Leung would manage the restaurant generally.
         (2)       The defendant James Leung is the sole shareholder and director of the defendant 477738
         BC Ltd. and is one of two shareholders and directors of the defendant 568263 BC Ltd., the
         plaintiff Wing Lee Leung, being the other.
         (3)       The defendant 477738 BC Ltd. owns land and premises which it leased to 568263 BC
         Ltd.
         (4)       The plaintiffs borrowed $140,000 against their house in Vancouver; this money was
         loaned to 568263 BC Ltd. and was spent on renovations to the premises.
         (5)       The parties had a falling-out and the defendant James Leung caused the company 568263
         BC Ltd. to pass resolutions prejudicial to the plaintiffs‘ interests and to make improper payments
         which were not legitimate expenses of the restaurant or which were for his own personal use. He
         thereby used his position and status in 568263 BC Ltd. to oppress the plaintiff Wing Lee Leung as
         a shareholder and director of that company.

[6]       When the application came on before me I dismissed the defendants‘ application to strike the writ as
disclosing no cause of action and allowed the plaintiffs‘ application for an amendment. It appears that there has
been an agreement that the order will provide that no Certificate of Pending Litigation will be registered against the
plaintiffs‘ property without further court order.

[7]       The only remaining disputes are about whether the plaintiffs can combine their claims for damages and
other relief against the individual and corporate defendants with their claim under the Company Act, and costs.




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ISSUES

[8]      The issues I must determine are:

         (1)       Do the defendants 477738 BC Ltd. and James Leung have standing to bring on the
         application to strike the claim under the Company Act which is not against them but relates only
         to the other numbered company, unrepresented in these proceedings?

         (2)      Given the provisions of Rule 1(13), which require that an application to “the court”
         authorized by an enactment be made by originating application, is there discretion nevertheless to
         permit the Company Act claim to be brought as part of the plaintiffs‟ action?

         (3)         If there is discretion, should it be exercised in this case?

         (4)         Should there be an order for costs?

ANALYSIS

         (1)      Do the defendants 477738 BC Ltd. and James Leung have standing to bring on the
         application to strike the claim under the Company Act which is not against them but relates
         only to the other numbered company, unrepresented in these proceedings?

[9]      This objection was raised by counsel for the plaintiffs but not vigorously pursued. I dismiss this objection
because the represented defendants have a sufficient interest in the constitution of the action to object to its coupling
with another matter that may lengthen the proceedings unnecessarily. They have standing to bring on this
application.

         (2)      Given the provisions of Rule 1(13) which require that an application to the court
         authorized by an enactment be made by originating application, is there discretion nevertheless
         to permit the Company Act claim to be brought as part of the plaintiffs’ action?

[10]     Rule 1(13) reads:

         1(13) Petitions and applications – Where an enactment authorizes an application to the court or
         to a judge of the court, and, whether or not the enactment provides for the mode of application, the
         application shall be
         (a)         by originating application under Rule 10, or
         (b)         if the application is interlocutory, by interlocutory application under Rule 44.
[11]     Rule 10(1) provides:

         10(1) Originating application – An application, other than an interlocutory application or an
         application in the nature of an appeal, may be made by originating application where

         (a)         an application is authorized to be made to the court, ..........

The defendants‘ position is that although the language of Rule 10(1) is permissive, that of Rule 1(13) is mandatory
and therefore where an enactment authorizes an application to be brought to the court it must be done by an
originating application under Rule 10.

[12]     The plaintiffs refer to Rule 1(5), which provides:

         1(5)     The object of these rules is to secure the just, speedy and inexpensive determination of
         every proceeding on its merits.




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[13]     Counsel for the plaintiffs brought to my attention Gittings v. Caneco Audio-Publishers Inc., (1988), 26
B.C.L.R. (2d) 349 (B.C.C.A.) in which the Court allowed an appeal from the order of a Chambers judge striking out
a claim in a writ of summons for relief under s. 224 of the Company Act. The Court of Appeal held that Rule 2(3)
prevented the Chambers judge from making the order. Rule 2(3) reads:

         2(3)  The court shall not wholly set aside a proceeding on the ground that it was required to be
         commenced by an originating process other than the one employed.

[14]     The court stated at 351-52:

         That rule was first introduced in the revised rules of 1976. The purpose of introducing that rule
         was to remove the possibility of the results, which sometimes took place under the old rules,
         whereby a proceeding which was not commenced on the right piece of paper or did not contain
         quite the right words had to be struck out as a nullity, sometimes after the limitation period had
         expired. Some of those results were no credit to the law.

         The submission of the respondent before us today is that Rule 2(3) does not apply in this case
         because of the mandatory language of s. 227 of the Company Act.

         That might be an arguable point if that section required the proceeding to be begun by petition, but
         one only arrives at the conclusion that the correct procedure is by petition by a route which leads
         to the rules.

         In all the circumstances, I can see no reason why Rule 2(3) does not apply to preclude an order
         being made, as was done in this case, wholly setting aside a portion of the proceeding on the
         ground that it was required to be commenced by a different originating process.

         I think it follows that the relief given could only have been in the nature of a stay. Such relief
         would be appropriate if there was a basis for concluding that there would be a practical advantage
         in requiring the plaintiffs to proceed by petition, or prejudice to the defendants by allowing it not
         to do so. I see nothing of the kind here. I note that the chambers judge recited the various steps
         which would have to be taken to get back to the position where this aspect of the dispute between
         the parties would be part of the action.

         Petition procedures often have their disadvantages, and I have no doubt that in this case it would
         not be a practical possibility to deal with the complex issues which appear to be raised here
         without essentially converting the proceeding into an action. That being so, it is my view that the
         order, insofar as it strikes out the claim under s. 224, was made in error and should be set aside.

[15]     The Gittings case is directly on point. Two other cases following it were cited by counsel for the plaintiffs:
Royal Bank of Canada v. Martens (1988), 55 B.C.L.R. (3d) 73 (S.C.) and Voyage Industries v. Craster, [1998]
B.C.J. No. 1884, (11 August 1998), Vancouver Registry, C976871 (S.C.). In the former case, the court refused to
grant a stay where claims (normally brought by writ of summons) regarding promissory notes and a deposit
agreement were made part of foreclosure proceedings by petition. The court refused the stay because there was no
practical advantage in requiring the plaintiff to commence a new action by writ of summons. In Voyage
Industries v. Craster, the court held (in the alternative to its main ruling on a point of jurisdiction) that an oppression
claim was not sufficiently related to the matters in the main action and that there was a practical advantage in
requiring separate proceedings to be commenced.

[16]     Counsel for the defendants submits, however, that Gittings is not binding in this case because it was
decided prior to the enactment of Rule 1(13), an amendment intended to remedy the confusion that had evolved
about the bringing of applications authorized by statute.

[17]     When Gittings was decided the comparable provision was s. 61(1) of the Supreme Court Act, R.S.B.C.
1979, c. 397 which stated:



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         61(1) Where an enactment authorizes a petition or application to the court or to a judge by a
         particular mode, the petition or application shall be by originating application or notice of motion
         as provided in the rules.

[18]     Does Rule 1(13), enacted subsequently, eliminate the discretion the Court of Appeal in Gittings found to
permit proceedings to continue despite their having been improperly commenced?

[19]     Counsel for the plaintiffs did not attempt to provide any extrinsic evidence in support of her claim that
Rule 1(13) was enacted to eliminate such discretion. However, the learned authors of McLachlin and Taylor, British
Columbia Practice, vol. 1, 2d ed., looseleaf (Markham, Ont.: Butterworths, 1979), do suggest that it has eliminated
any discretion. They state at 10-14:

         .......... [w]here the originating application is authorized by an enactment, then despite the use of
         the permissive ‗may‘ in R. 10(1)(a), the proceeding must be brought by originating application by
         virtue of R. 1(13)(a).

[20]     The language used in s. 61(1) and Rule 1(13) does not differ in its mandatory force: in both provisions the
word ―shall‖ is used. The Interpretation Act, R.S.B.C. 1996, c. 238, s. 29 provides that both ―shall‖ and ―must‖ are
to be construed as imperative. Nevertheless, the Court of Appeal in Gittings found that there was discretion flowing
from the provision of Rule 2(3), which continues to state, as it did when that case was decided, that the court is not
to wholly set aside proceedings on the basis that they have been commenced in the wrong form.

[21]      I do not conclude that the enactment of Rule 1(13) has the effect of over-ruling Gittings. There is still room
for discretion to permit proceedings to continue even though they have been improperly commenced.

(3)      If there is discretion, should it be exercised in this case?

[22]    The reasoning in Gittings turned in part on questions of practicality: is there any practical objective to be
served by requiring the plaintiffs to issue a petition with supporting material?

[23]      Counsel for the plaintiffs referred me to Buckley v. British Columbia Teachers‟ Federation (1992), 70
B.C.L.R. (2d) 210 (S.C.) and to Merritt v. Imasco Enterprises Inc. (1992), 2 C.P.C. (3d) 275 (B.C.S.C.). Buckley
illustrates that it is not a foregone conclusion that proceedings by way of petition will be converted to proceedings
by way of action; s. 200 contemplates that even where there are some disputed facts, they may have to be resolved in
a summary way. Merritt concerned an application by the defendants to join two actions under Rule 5(8). Master
Kirkpatrick (as she then was) held that the pleadings determine whether common claims, disputes and relationships
exist between the parties but that the question of whether they are ―so interwoven as to make separate trials at
different times before different judges undesirable and fraught with problems and economic expense‖ requires
reference to matters such as the potential for a party to be seriously inconvenienced, whether there will be a real
saving in pre-trial procedures, experts‖ time, and the like.

[24]      From the Statement of Claim and the material filed, it appears that the defendant James Leung was
interacting with the plaintiffs personally and through two corporate vehicles, one company wholly owned by himself
and the second jointly with the plaintiff Wing Lee Leung. The plaintiffs allege that what went wrong in the business
relationship manifested itself both for the plaintiffs personally and in the corporate vehicle they had created jointly
with the personal defendant. I can only conclude that the factual nexus between the claims is so strong that it would
be an exercise of needless formalism to require the plaintiffs to issue a petition with supporting material in an
originating application, then bring an application to have the petition heard with the action. Bearing in mind the
provisions of Rule 1(5), I decline to make the order sought by the defendants.

(4)      Should I make an order as to costs?

[25]      Although the defendants have not succeeded in this application, it was brought on because the plaintiffs
disregarded the Rules when they joined their claim under the Company Act with their claims for other relief in the
action. In the circumstances I will make no order as to costs.



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                                                                              WEEKS 3 & 4: 472900 B.C. Ltd.


                                                  472900 B.C. Ltd. v. Thrifty Canada, Ltd.

British Columbia Court of Appeal
Judgment: filed December 18, 1998.

1.       ESSON J.A.: - The defendant appeals by leave from an order refusing its application under Rule 14(6)(c)
for an order that the court decline to accept jurisdiction over this matter. When the appeal first came on for hearing
before the usual three judge panel, it became apparent that the appellant‘s submission could succeed only by
overruling earlier decisions of this court. The matter was therefore put over to be heard by five judges.

2.       Throughout these reasons, I will refer to the defendant as Thrifty and to the three plaintiffs as 472, 331 and
Leisure. Thrifty is an Ontario corporation having its head office in Mississauga. It holds from its American parent
the Canadian rights to license others to carry on the Thrifty Rent-a-Car business. The issues between 472 and
Thrifty arise out of an area license agreement which authorizes 472 to license others in British Columbia to carry on
business as Thrifty Rent-a-Car. Leisure, also an Ontario corporation, is the parent of the other two plaintiffs and is a
guarantor of their obligations to Thrifty. 331 at one time was a licensee for the area of Richmond, where the
Vancouver International Airport is located, and certain other areas in the province. That agreement was terminated
prior to the commencement of this action. 331 now alleges breach by Thrifty of an agreement to repurchase
automobiles, and breach of an agreement whereby Thrifty is alleged to have agreed to take over premises leased by
331. Whatever the merits of that claim, it is admittedly severable from any issues between 472 and Thrifty. No
facts have been pleaded to support a cause of action on the part of Leisure against Thrifty which originally sought to
stay the action by all three plaintiffs but now confines its application to a stay of the action by 472. I will therefore
make no further reference to 331 and Leisure.

3.       Disputes arose between 472 and Thrifty in June of 1996 at which time Thrifty claimed that over
$200,000.00 was owing to it. On 17 October 1996, Thrifty commenced action against 472 in the Ontario Court
(General Division) claiming the sum of $447,000.00 which was alleged then to be due and owing under the terms of
the Area License Agreement. That step was taken at a point when the parties had been seriously negotiating and
while a settlement offer made by Thrifty on 16 October was still open for acceptance. The deadline in the offer was
18 October.

4.       On 22 October, Thrifty gave notice purporting to terminate the Area License Agreement on the ground that
472 owed about $332,000.00. On the same day, this action was commenced seeking rescission or damages on the
basis that Thrifty had made false representations which induced 472 to enter into the contract. Damages were also
sought for breach of s. 45 of the Competition Act, R.S.C. 1985, c. 34 for Thrifty‘s negligence as a franchisor and for
breach of its duty of good faith. On the same day, 472 applied ex parte for an injunction restraining Thrifty from
terminating the license or interfering with the business of 472. An order was made in those terms on 22 October
which was later set aside on the ground of material misrepresentation.

5.        472 applied on 26 November 1996 in the Ontario action for an order that the Ontario Court decline
jurisdiction on these grounds:

         (a)         Ontario is not a convenient forum;

         (b)         An action is pending in British Columbia in respect of the same subject matter;

         (c)         The balance of convenience favours British Columbia as the appropriate forum; and

         (d)         British Columbia law applied to the contract at issue.

…….




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THE RULE

10.      Rule 14(6)(c) reads as follows:

(6)      Where a person served with an originating process has not entered an appearance and alleges that

         ***

         (c)         the court has no jurisdiction over him in the proceeding or should decline jurisdiction.

         the person may apply to the court for a declaration to that effect

In this case, of course, the issue is whether the court should decline jurisdiction. Clearly, the courts of both Ontario
and British Columbia have jurisdiction.

THE ENGLISH LAW

11.     The Rule provides no guidance as to the principles to be applied on such an application. Guidance must be
found in the cases. On this issue, the significant decisions continue to be those of the English courts. We are no
longer bound by English authority but have continued to follow and apply them to this issue, but, where the
―competing‖ jurisdictions are provinces of Canada, with due regard to the significance of that factor.

12.       In saying that Canadian courts have continued to follow and apply the English authorities, I rely on the
decisions of the Supreme Court of Canada. In this area, they have been few and far between. The English
authorities have, on the other hand, been quite numerous, but if I may say so without disrespect, have been
somewhat confusing. Significant developments took place in the decade or so starting in 1973 during which the
House of Lords, in a series of decisions, gradually laid to rest the principles unique to England which had been
followed for a century or more, and adopted in their place the principle of forum non conveniens. The decisions
which brought about the change, a radical one, were enunciated in a series of judgments:

         -           Atlantic Star, [1974] A.C. 436
         -           MacShannon v. Rockware Glass Ltd., [1978] A.C. 795
         -           Amin Rasheed Shipping Corporation v. Kuwait Insurance Co., [1984] A.C. 50
         -           The Abidin Daver, [1984] A.C. 398, 1 All E.R. 470
         -           Spiliada Maritime Corp. v. Cansulex Ltd.; Spiliada (The), [1987] A.C. 460, 3 All E.R. 843

13.     The old English rule, which I will call the ―St. Pierre rule‖, is set out in St. Pierre v. South American Stores
(Gath & Chaves) Ltd., [1936] 1 K.B. 382. The most often cited statement of it was that by Scott L.J. at p.398:

                   The true rule about a stay under s. 41, so far as relevant to this case, may I think be
         stated thus: (I.) A mere balance of convenience is not a sufficient ground for depriving a plaintiff
         of the advantages of prosecuting his action in an English Court if it is otherwise properly brought.
         The right of access to the King‟s Court must not be lightly refused. (2.) In order to justify a stay
         two conditions must be satisfied, one positive and the other negative: (a) the defendant must
         satisfy the Court that the continuance of the action would work an injustice because it would be
         oppressive or vexatious to him or would be an abuse of the process of the Court in some other
         way; and (b) the stay must not cause an injustice to the plaintiff. On both the burden of proof is on
         the defendant

…

14.      The practical result of the St. Pierre rule was that applications to stay actions in England almost never
succeeded. The facts of St. Pierre illustrate why that was so. The defendants, companies registered in England but
carrying on business exclusively in South America, were tenant and guarantor of the tenant‘s obligations under a
lease from the plaintiff, a Chilean subject, of store property in Santiago. The lease was Spanish, was drawn up



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according to Chilean law and included a provision that the parties had ―elected domicile‖ in Chile. By virtue of a
provision of the Chilean Civil Code, any question as to its effect or interpretation was required to be submitted to the
Tribunal of Chile to the exclusion of any other court. The English companies, before the English action was begun,
had brought action in Chile seeking a declaration that payment of the disputed amount was illegal or impossible by
reason of Chilean law.

…

16.      The first rather tentative step towards altering that situation was taken by the House of Lords in The
Atlantic Star, supra. That case arose out of a collision which took place in Belgian waters between two Dutch
vessels and a Belgian vessel. The owners of the Belgian vessel sued in the Commercial Court at Antwerp. Four
other proceedings were begun in Antwerp by different interests such as owners of cargo, owners of other vessels,
and dependents of crew members killed in the collision. The action in England was brought by the owners of one of
the Dutch vessels against the other Dutch vessel.

17.      The action in England had no connection with that country except that the defendant ship had been arrested
there in order to found jurisdiction. Brandon J. at first instance, refused to grant a stay because he said it would
deprive the plaintiff of an advantage which the plaintiff sincerely believed was a real advantage. He also held at p.
453 that he had no doubt that ―.......... so far as convenience is concerned, the Commercial Court of Antwerp is by far
the more appropriate forum.‖ He gave detailed reasons for that conclusion. The Court of Appeal upheld his
decision. In the House of Lords, Lord Reid, after recounting the findings of Brandon J., went on to say at p.453:

                  It is said that the right of access to the Queen‟s court must not be lightly refused. In the
         present case Lord Denning M.R. said [1973] Q.B. 364, 381G, 382c:

                     No one who comes to these courts asking for justice should come in vain ..........
                     This right to come here is not confined to Englishmen. It extends to any friendly
                     foreigner. He can seek the aid of our courts if he desires to do so. You may call
                     this „forum shopping‟ if you please, but if the forum is England, it is a good
                     place to shop in, both for the quality of the goods and the speed of service.

         My Lords, with all respect, that seems to me to recall the good old days, the passing of which
         many may regret, when inhabitants of this island felt an innate superiority over those unfortunate
         enough to belong to other races.

                   It is a function of this House to try, so far as possible, to keep the development of the
         common law in line with the policy of Parliament and the movement of public opinion. So I think
         that the time is ripe for a re-examination of the rather insular doctrine to which I have referred

18.      At p.454, having expressed the opinion that any change should be sought within the existing framework of
English law rather than adopting the principle of forum non conveniens, Lord Reid said:

         The existing basis is that the plaintiff must not be acting vexatiously, oppressively or in abuse of
         the process of the court. Those are flexible words and I think that in future they should be
         interpreted more liberally.

19.      In the end, the House of Lords by a majority allowed the appeal but declined the invitation of counsel to
adopt the rule of forum non conveniens. Lord Wilberforce, who was also in the majority, noted at p.464 that the
doctrine was one of general application in Scotland and had been validated in the House of Lords. He noted that a
similar doctrine had gained acceptance in the United States of America with the authority of the Supreme
Court. But on the question whether it should be adopted in England, he said at p.464:

                  My Lords, I am of opinion that this is a course which we cannot take. It is clear, from
         decisions to which I shall refer, that for some 100 years the law of England has taken a divergent
         path with its own rules, defined and adjusted in numerous cases, some of high authority. This



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         same path has been followed in other Commonwealth jurisdictions - Australia, Canada, India,
         New Zealand. The arguments in favour of “forum non conveniens” as a general rule are not so
         overwhelming that we should now make a radical change of direction: indeed there is much to be
         said for the English rule, provided that it is not too rigidly applied. I would not therefore favour
         accepting the radical solution.

…

Thus, the St. Pierre rule was modified by calling for a more flexible and liberal interpretation of the words of the old
rule. In practice, that change appears to have had little effect on the outcome of applications to stay actions in
England.

21.      Four years later, the House of Lords decided MacShannon v. Rockware Glass Ltd., supra, which involved
four actions with similar facts. Each of the four plaintiffs lived and worked in Scotland and had been injured in
industrial accidents there. All of the defendants were English companies having their registered offices in
England. That was the sole foundation for jurisdiction in the English court. The Court of Appeal (Lord Denning
M.R. dissenting) had upheld the decision that no stay should be granted although, as Stephenson L.J. for the
majority, said at p.809:

         Anyone with nothing but common sense to guide him would say that they ought to be tried in
         Scotland

The majority view was that, notwithstanding the decision in The Atlantic Star to relax the formula stated by Scott
L.J., they were required by The Atlantic Star to refuse a stay because of the retention of the words ―oppressive or
vexatious‖ as part of the test, albeit in a modified or flexible form. In MacShannon, the Law Lords again declined to
take the radical step of adopting the rule of forum non conveniens but further altered the St. Pierre rule by holding
that a stay could be granted without finding the continuance of the action ―oppressive‖ or ―vexatious‖. They went
on to hold that the rule stated by Scott L.J. in St. Pierre should be modified by restating the second part of it to read,
in the words of Lord Diplock at p.812:

                  (2) In order to justify a stay two conditions must be satisfied, one positive and the other
         negative; (a) the defendant must satisfy the court that there is another forum to whose jurisdiction
         he is amenable in which justice can be done between the parties at substantially less
         inconvenience or expense, and (b) the stay must not deprive the plaintiff of a legitimate personal
         or juridical advantage which would be available to him if he invoked the jurisdiction of the
         English court.

….

22.       The distinction proved not to be so fine as Lord Diplock had hoped. What the MacShannon formula left
untouched was the first part of the St. Pierre rule founded on the principle that the right of access to the King‘s court
must not be lightly refused. The extent to which that part of the rule continued to govern its application was
illustrated by Amin Rasheed Shipping Corporation v. Kuwait Insurance Co., supra, where the question was whether
the English court should have authorized service ex juris in an action brought by a Liberian shipowner against a
Kuwaiti insurance company. The specific issue was whether the proper law of the contract was Kuwaiti or
English. In upholding the decision of the Court of Appeal holding that the proper law was Kuwaiti, the Law Lords
were sharply critical of certain observations of the lower court which treated the innate superiority of English courts
as a factor to be taken into account. Those criticisms are summarized in the headnote:

         Per Lord Diplock, Lord Roskill, Lord Brandon of Oakbrook and Lord Brightman. ..........

(ii)     it would be wholly wrong for the English courts to embark upon the task of making a comparison
         of the relative efficiency of the civil law and common law procedures for the determination of
         disputed facts.




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…

23.      A few months later, the Law Lords did away with the surviving elements of Scott L.J.‘s formulation and
declared forum non conveniens to be the governing principle in England, although without adopting that term. The
case is The Abidin Daver, supra. It arose out of a collision in the Bosphorus, an international waterway, between a
Cuban ship and a Turkish ship. The owners of the Turkish ship brought action in Turkey and arrested the Cuban
ship there. The Cuban owners then brought action in Rem in the Admiralty Court in England and arrested a ―sister
ship‖ of the Turkish ship. The Turkish owners applied for and obtained an order by which the English court
declined jurisdiction but that was reversed by the Court of Appeal. The House of Lords restored the order of the
chambers judge. After reviewing the step-by-step approach of the House of Lords which had begun with The
Atlantic Star, and after emphasizing the importance of the existence of a lis alibi pendens which, as Lord Diplock
noted at p.408, ―had been brushed aside by Scott L.J. and is not referred to in his statement of the rule‖, Lord
Diplock went on to say at p.411-412:

                   My Lords, the essential change in the attitude of the English courts to pending or
         prospective litigation in foreign jurisdictions that has been achieved step-by-step during the last
         10 years as a result of the successive decisions of this House in The Atlantic Star [1974] A.C. 436;
         MacShannon [1978] A.C. 795 and Amin Rasheed [1984] A.C. 50, is that judicial chauvinism has
         been replaced by judicial comity to an extent which I think the time is now ripe to acknowledge
         frankly is, in the field of law with which this appeal is concerned, indistinguishable from the
         Scottish legal doctrine of forum non conveniens. [emphasis added]

24.     In the next paragraph, Lord Diplock stated the rule which henceforth was to apply to cases such as this in
which there is already an action on foot in the other jurisdiction dealing with the same subject matter:

                   Where a suit about a particular subject matter between a plaintiff and a defendant is
         already pending in a foreign court which is a natural and appropriate forum for the resolution of
         the dispute between them, and the defendant in the foreign suit seeks to institute as plaintiff an
         action in England about the same matter to which the person who is plaintiff in the foreign suit is
         made defendant, then the additional inconvenience and expense which must result from allowing
         two sets of legal proceedings to be pursued concurrently in two different countries where the same
         facts will be in issue and the testimony of the same witnesses required, can only be justified if the
         would-be plaintiff can establish objectively by cogent evidence that there is some personal or
         judicial advantage that would be available to him only in the English action that is of such
         importance that it would cause injustice to him to deprive him of it

25.      In the next paragraph, Lord Diplock expressed the view that the danger of conflicting decisions if two
actions were to proceed concurrently in two jurisdictions is a significant one and that:

         Comity demands that such a situation should not be permitted to occur as between courts of two
         civilised and friendly states. It is a recipe for confusion and injustice.

26.       The most significant development was the adoption of comity as the governing principle in place of the old
rule that access to the English court is not to be lightly refused.

27.      The last English authority to which I will refer is The Spiliada, supra, which has particular significance
because finally the House of Lords accepted that the law of England as defined in The Abidin Daver, supra, was not
only indistinguishable from, but actually is, the rule of forum non conveniens. The point in issue was whether an
order for service ex juris was properly made. That issue is, of course, closely related to the issue whether an action
brought in this jurisdiction should be stayed. In Spiliada, it was held that essentially the same principles should
apply to both issues.

28.      The action was brought in England by shipowners who alleged that their vessel was damaged, while on a
voyage from Vancouver to Indian ports, by cargo which was wet when loaded and thus caused severe
corrosion. Staughton J. granted leave to serve ex juris. The Court of Appeal reversed his decision but the House of



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Lords restored it. The assumption of jurisdiction by the English court was based essentially on the unusual
circumstance that Staughton J., at the time the application was made to him, was in the course of hearing a long trial
in a similar action against the same shippers in respect of another ship, The Cambridgeshire. So it was not a case, as
under the old rule, of the court retaining jurisdiction because of the inherent superiority of English courts. It was a
matter of a particular set of circumstances which established the English court as the appropriate forum for that case.

29.      The principal speech is that of Lord Goff. His views as to the meaning of forum non conveniens are
significant. At p.474, he said that the principal now applicable in both England and Scotland was that of forum non
conveniens, the classic statement of which he said was that of Lord Kinnear in Sim v. Robinow (1892), 19 R. 665 at
668.

         [T]he plea can never be sustained unless the court is satisfied that there is some other tribunal,
         having competent jurisdiction, in which the case may be tried more suitably for the interests of all
         the parties and for the ends of justice

30.      After referring to other similar statements of the principle, he went on to say:

                   I feel bound to say that I doubt whether the Latin tag forum non conveniens is apt to
         describe this principle. For the question is not one of convenience, but of the suitability or
         appropriateness of the relevant jurisdiction. However the Latin tag (sometimes expressed as forum
         non conveniens and sometimes as forum conveniens) is so widely used to describe the principle,
         not only in England and Scotland, but in other Commonwealth jurisdictions and in the United
         States, that it is probably sensible to retain it. But it is most important not to allow it to mislead us
         into thinking that the question at issue is one of “mere practical convenience.” Such a suggestion
         was emphatically rejected by Lord Kinnear in Sim v. Robinow, 19 R. 665, 668, and by Lord
         Dunedin, Lord Shaw of Dumferline and Lord Sumner in Société du Gaz case 1926 S.C. (H.L.) 13,
         18, 19, and 22 respectively. Lord Dunedin, with reference to the expressions forum non competens
         and forum non conveniens, said, at p.18:

                     “In my view, „competent‟ is just as bad a translation for „competens‟ as
                     „convenient‟ is for „conveniens.‟ The proper translation for these Latin words,
                     so far as this plea is concerned, is „appropriate.‟”

         Lord Sumner referred to a phrase used by Lord Cowan in Clements v. Macaulay (1866) 4 Macph.
         583, 594, viz. ―more convenient and preferable for securing the ends of justice,‖ and said, at p.22:

         “.......... one cannot think of convenience apart from the convenience of the pursuer or the
         defender or the court, and the convenience of all these three, as the cases show, is of little, if any,
         importance. If you read it as „more convenient, that is to say, preferable, for securing the ends of
         justice,‟ I think the true meaning of the doctrine is arrived at. The object, under the words „forum
         non conveniens‟ is to find that forum which is the more suitable for the ends of justice, and is
         preferable because pursuit of the litigation in that forum is more likely to secure those ends.‟

         In the light of these authoritative statements of the Scottish doctrine, I cannot help thinking that it
         is wiser to avoid use of the word “convenience” and to refer rather, as Lord Dunedin did, to the
         appropriate forum.

31.       I agree that the Latin tag, however inapt to describe the principle, is so widely used that it is sensible to
retain it. But it is important to keep in mind that it refers, not to the more convenient forum, but to the appropriate
forum. At the risk of creating further confusion but in the hope of reducing it, I observe that the Latin tag, in its
present role of describing the doctrine or general principle, means something different from its former use under the
old English rule which was to describe a factor which could be considered with others in deciding whether the action
was vexatious or oppressive. In that context, ―forum conveniens‖ was used in the sense of ―mere practical
convenience‖.




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32.       The Abidin Daver and The Spiliada laid to rest the insular English rule in both its original and modified
forms and mandated the radically different approach of determining which is the more appropriate jurisdiction.
Comity, which played no part in the old rule, is now a major consideration. Parallel actions dealing with the same
subject matter must now be avoided unless the party resisting the application to stay can demonstrate possible loss
of a juridical advantage. The right of the plaintiff to sue in the court of his choice is not now a significant factor. A
primary purpose of the present rule is to avoid having two actions proceeding in different jurisdictions with the
attendant risk of conflicting decisions. There is now no burden on the applicant to establish that the action would be
vexatious, oppressive and/or an abuse of the process of the court. Such matters can, of course, still be relied on in
aid of the application to stay because, if they can be established, the jurisdiction in which that would occur can
hardly be the appropriate one. But the absence of such factors is no longer a basis for refusing the application to
stay.

OUR LAW IS ENGLISH LAW

33.       The fact that forum non conveniens was held by the House of Lords in 1984 to be the law of England did
not, of course, automatically lead to its becoming the law to be applied in this province or elsewhere in Canada. I
turn to the decisions of the Supreme Court of Canada which, in my view, make it clear that the principles laid down
in The Abidin Daver are now the law in this jurisdiction.

…

37.      That forum non conveniens is the Canadian rule was affirmed in Amchem Products Inc. v. British
Columbia (Workers Compensation Board), [1993] 1 S.C.R, 897. The Workers Compensation Board of this
province had, in the exercise of its subrogated rights to claims of workers who had been harmed by exposure to
asbestos, caused a large number of actions to be brought in the State of Texas to recover damages from asbestos
manufacturers. The defendants applied to restrain the plaintiffs from proceeding with those actions and were
successful at first instance and in this court. The Supreme Court of Canada reversed those decisions.

…

45.      Before explaining why, in my view, the reasoning in Avenue Properties was wrong in a number of
important respects, I will deal with a third decision of the Supreme Court of Canada which bears on these issues. In
De Savoye v. Morguard Investments Ltd., [1990] 3 S.C.R. 1077, 46 C.P.C. (2d) 1, the Supreme Court of Canada
upheld the decision of the courts of this province holding that British Columbia should recognize an Alberta
judgment if the Alberta court took jurisdiction in circumstances in which, if the facts were transposed to British
Columbia, our court would have taken jurisdiction. In relation to this case, the significance of Morguard is that it
decides that a higher level of comity should be shown to the courts of sister provinces than need be shown to
decisions of ―foreign‖ courts.

46.      I return now to Avenue Properties to explain the basis for my view that much of the reasoning in that case
is inconsistent with the present state of the law and that it therefore should not be followed.

…

55.      In major respects, the decision of this court in Avenue Properties reflected the considerations upon which
the insular St. Pierre rule had been based; and failed to have regard to certain of the major considerations on which
the new rule of forum non conveniens is based.

56.      In Rogers v. Bank of Montreal, supra, the facts and the decision are summarized thus in the headnote:

         The plaintiffs, shareholders and employees of A., brought actions in British Columbia, where two
         of them resided, claiming losses which arose out of the defendants putting A. into receivership in
         Alberta. Although the court had jurisdiction to hear the matter, the defendants were granted an
         order staying the proceedings on the basis that the doctrine of forum conveniens governed, and




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         that in all the circumstances justice would be better served if the action were tried in Alberta. The
         plaintiffs appealed.

57.      Although the majority decision is said to be based on the modified English rule set down in MacShannon,
supra, the major considerations were those derived from the earlier cases. The final conclusion in the reasons of
Craig J.A. for the majority at p.622, was:

         Because the judge applied the forum conveniens test, he failed, I think, to place sufficient
         emphasis on the right of the plaintiff to bring this action in British Columbia and on the issue of
         whether the action in British Columbia would cause a severe injustice to the defendants.

58.     Again, no attention was paid to the question of comity. In my respectful view, the law as it stood at that
time was correctly stated in the dissenting reasons of Carrothers J.A., who said at p.607:

                  In the case under appeal, the two potential competing jurisdictions are adjacent common
         law provinces of Canada, with fundamentally the same laws, similar courts and procedures and
         with judges appointed in the name of the same Queen. I am of the opinion that criteria founded on
         undesirability of trespassing on the jurisdiction of a foreign state or the cost of assembling foreign
         witnesses, or the difficulties of proving foreign and unfamiliar laws are of no assistance in the
         circumstances facing us. Similarly I would discard from this case the admonition to be found in
         many of the cases to the effect that the foreign litigant shall not be lightly refused access to the
         King‟s Court, for that would make for invidious comparisons in the case at Bar and would put in
         the balance the relative superiority of the Courts of the two provinces concerned reminiscent of:

                     [T]he good old days, the passing of which many may regret, when inhabitants of
                     this island felt an innate superiority over those unfortunate enough to belong to
                     other races.

         Thus said Lord Reid in The Atlantic Star, supra, p. 181 All E.R., p. 453 A.C., in response to Lord
         Denning‟s open invitation extended to foreigners to avail themselves of the English
         Courts. Clearly the foregoing are inappropriate considerations on this particular appeal. Davey
         J.A. (as he then was) recognized in Tompkins, supra, that litigation in one common law province
         has no inherent advantage over litigation in another common law province.

…

THE DECISION APPEALED FROM

63.      The decision of the learned chambers judge is quoted supra, at para. 9, and I need not repeat it here. The
chambers judge gave substantial weight to the principle that a plaintiff‘s choice of forum should not be lightly
denied, and to the St. Pierre principle that it is not objectionable to have two actions in different jurisdictions dealing
with the same subject matter. He gave no weight to the important circumstance that the parties had expressly agreed
that:

         This Agreement shall be interpreted in accordance with the laws of the Province of Ontario and
         the parties hereby attorn to the non-exclusive jurisdiction of the Courts of the Province of Ontario.

For the reasons I have given, those are errors in principle. In this case there is the added circumstance, one which
has not to my knowledge arisen in any other case, that before the stay application was made here, the court of a
sister province had denied a stay. Having regard to the great significance which must now be given to the matter of
comity between provinces, I consider that to be a conclusive factor in favour of the appellant.

64.      I would allow the appeal and grant an order staying the action of 472900 B.C. Ltd.




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                                          Pan-Afric Holdings Ltd. v. Ernst & Young LLP


British Columbia Supreme Court
Vancouver, British Columbia
Judgment: filed May 15, 2007

FRANKEL, J.:

INTRODUCTION

[1]         The plaintiff, Pan-Afric Holdings Ltd. (―Pan-Afric‖), has commenced an action in this Court seeking
damages from the defendant, Ernst & Young LLP (―E. & Y.‖), arising out of the latter‘s alleged breach of contract
and negligence in evaluating certain software technology.
[2]          E. & Y. now seeks an order, under s. 11 of the Court Jurisdiction and Proceedings Transfer Act,
S.B.C. 2003, c. 28 (―C.J.P.T.A.‖), that these proceedings be stayed on the basis that a court in the State of Maryland,
United States of America, is a more appropriate forum in which to have this dispute resolved. It concedes that the
Supreme Court of British Columbia has ―territorial competence‖, as defined in the C.J.P.T.A., i.e., what was
formerly referred to as ―jurisdiction simpliciter‖.
[3]          For the reasons that follow this application is allowed in part.
BACKGROUND

[4]          Pan-Afric is incorporated under the laws of British Columbia, with its registered office in Vancouver.
[5]         E. & Y. is a limited liability partnership established under the laws of the State of Delaware, United
State of America, with an office in Baltimore, Maryland. It does not carry on any business in British Columbia.
[6]          Diginet Communications Inc. (―Diginet‖) is a Delaware corporation, with offices in Gaithersburg,
Maryland. It operates a communications network within the United States for the purpose of providing data
transmission services. In this connection it developed certain proprietary software.
[7]         On November 22, 1993 Pan-Afric and Diginet entered into an agreement wherein Pan-Afric agreed to
purchase an undivided one-half interest in Diginet‘s software. The agreement contained a clause stating that it was
governed by the laws of Maryland.
[8]           The agreement provided for an appraisal (i.e., a Valuation Analysis) of the software by an appraiser
acceptable to Pan-Afric. The costs were to be borne equally by Pan-Afric and Diginet. If this appraisal did not
establish a value of at least $9 million (U.S.), then Pan-Afric had the right to rescind the agreement.
[9]          E. & Y. was contacted by Diginet, and was later engaged to perform the appraisal. Specifically, it was
asked to value the software in the hands of a Canadian purchaser as of November 30, 1993, without regard for any
income taxes that may be attributable to any purchaser. It is not clear whether E. & Y. entered into a written
contract. None is in the material before me.
[10]        What is clear is that E. & Y. was retained in Maryland, and all the work it did was performed there.
[11]       Mr. Sam Beritela, who was employed by E. & Y. in 1993, deposes that his firm was engaged at a
meeting he and a colleague, Mr. Lawrence Signorelli, had with Diginet representatives at Diginet‘s offices in
Gaithersburg. He does not recall anyone from Pan-Afric being present. He states that afterwards, he had limited
telephone contact with Pan-Afric representatives, but did attend a ―courtesy dinner‖ with them in Baltimore.
[12]       Mr. Noordin Sayani, the president of Pan-Afric, deposes that, to satisfy himself that E. & Y. could
perform the required work, he met with representatives of Diginet, Mr. Beritela, and possibly Mr. Signorelli, at E. &
Y.‘s Baltimore office.
[13]        The Valuation Analysis was completed by E. & Y. in December, 1993, and sent to both Pan-Afric and
Diginet. It placed the fair market value of the software at between $12.6 million (U.S.) and $15 million (U.S.).



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After receiving the report, Pan-Afric completed the transaction for the agreed upon purchase price of $5 million
(U.S.).
[14]         Mr. Beritela was responsible for preparing the Valuation Analysis. As indicated in the Statement of
Qualifications section of this report, at the time he was a Certified Public Accountant, and a member of the
Maryland Association of Certified Public Accountants, the American Institute of Certified Public Accountants, the
Institute of Management Accountants, and the American Society of Appraisers. Mr. Signorelli assisted in the
preparation of the report. He was also a Certified Public Accountant, and a member of the Maryland Association of
Certified Public Accountants, and the American Institute of Certified Public Accountants. In addition, at the time he
was a candidate for the Senior Appraiser designation with the American Society of Appraisers. Neither held any
professional licences in Canada, nor were they members of any Canadian professional organizations.
[15]        The Certificate of Appraiser signed by Mr. Beritela states:
         The analyses, opinions, and conclusions were developed, and this report has been prepared, in
         conformity with the requirements of the American Society of Appraisers and the Uniform
         Standards of Professional Appraisal Practice.

[16]       Pan-Afric alleges that it was not until 2005 that it became aware that the fair market value of the
software had been significantly overvalued. Its Statement of Claim filed on July 12, 2006, contains the following:
         15.   During or about August, 2005, during the course of an appeal of a reassessment of the
                Plaintiff for income tax purposes by the Canada Revenue Agency (the ―CRA‖), the CRA
                advised the Plaintiff and the Plaintiff for the first time became aware of the fact that the
                Defendant made a computational error in the Valuation and in the Valuation Analysis
                which resulted in an overstatement of the range of the fair market value of the Software as
                of November 30, 1993 of between US$10,000,000 and US$11,900,000. The range of the
                fair market value of the Software as of November 30, 1993 was in fact between
                US$2,600,000 and US$3,100,000.

[17]        In his affidavit Mr. Beritela stands by his report, and denies any computational error. He states he
resides in Maryland, and has not been employed by E. & Y. since 1997. He indicates Mr. Signorelli also resides in
Maryland.
[18]        In support of its position that the Valuation Analysis is flawed, Pan-Afric filed the affidavit of Gregory
A. Gilbert, of Portland, Oregon. Mr. Gilbert is a Chartered Financial Analyst, a Fellow of the American Society of
Appraisers, and a member of a number of other American professional organizations. He opines that the report
―contains a number of errors that have resulted in an overstatement of the fair market value of the application
software technology‖, and provides his views on how these errors were made.
RELEVANT LEGISLATION

[19]        Section 11 of the C.J.P.T.A. reads:
         11(1) After considering the interests of the parties to a proceeding and the ends of justice, a court
         may decline to exercise its territorial competence in the proceeding on the ground that a court of
         another state is a more appropriate forum in which to hear the proceeding.
         (2)      A court, in deciding the question of whether it or a court outside British Columbia is the
         more appropriate forum in which to hear a proceeding, must consider the circumstances relevant
         to the proceeding, including
               (a)    the comparative convenience and expense for the parties to the proceeding and for
               their witnesses, in litigating in the court or in any alternative forum,
               (b)    the law to be applied to issues in the proceeding,
               (c)    the desirability of avoiding multiplicity of legal proceedings,
               (d)    the desirability of avoiding conflicting decisions in different courts,
               (e)    the enforcement of an eventual judgment, and



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                (f)   the fair and efficient working of the Canadian legal system as a whole.

ANALYSIS

[20]         The C.J.P.T.A. is of recent vintage. Although enacted in 2003 it was not proclaimed in force until May
4, 2006: B.C. Reg. 117/06. As Newbury J.A. noted in Lloyd’s Underwriters v. Cominco Ltd., [2007] B.C.J. No.
841 (QL), 2007 BCCA 249, affirming (2006), 60 B.C.L.R. (4th) 261, 2006 BCSC 1276 (per Davies J.), the
C.J.P.T.A. is a product of the Uniform Law Conference of Canada, and came about out of a desire to standardize the
rules relating to forum non conveniens, and to bring them in line with principles laid down by the Supreme Court of
Canada: para. 54.
[21]        Prior to the passage of the C.J.P.T.A. a forum non conveniens analysis was based on the non-exhaustive
list of un-weighted factors set out by Low J., as he then was, in Stern v. Dove Audio Inc., [1994] B.C.J. No. 863
(QL) (S.C.) at para. 62:
         (1)    Where each party resides.
         (2)    Where each party carries on business.
         (3)    Where the cause of action arose.
         (4)    Where the loss or damage occurred.
         (5)    Any juridical advantage to the plaintiff in this jurisdiction.
         (6)    Any juridical disadvantage to the defendant in this jurisdiction.
         (7)    Convenience or inconvenience to potential witness.
         (8)    Cost of conducting the litigation in this jurisdiction.
         (9)    Applicable substantive law.
         (10)   Difficulty and cost of proving foreign law, if necessary.
         (11)   Whether there are parallel proceedings in any other jurisdiction. (―Forum shopping‖ is to be
                discouraged.)

[22]        That these factors remain relevant was confirmed by Newbury J.A. in Lloyd’s Underwriters:
         [55]     It is apparent, then, that the CJPTA is not intended simply as a restatement or codification
         of existing law but does effect some substantive (albeit not dramatic) changes in the previous law.
         . . . With respect to forum conveniens, on the other hand, the Act seems intended to codify, rather
         than effect substantive changes to, the previous law. The court is still required to consider ―the
         circumstances relevant to the proceeding‖ and the list of six factors in s. 11(2) is obviously not
         exhaustive. The factors are broadly phrased and, as the Chambers judge has shown in this
         instance, can be generally equated to various factors considered at common law, as described in
         Stern, supra.

[23]       Noting that the residence of the parties is not listed in s. 11 of the C.J.P.T.A., Mr. Cowper, Q.C.
suggested, particularly in reply, that it may no longer be a factor to be considered. I do not agree. Where the parties
reside remains a consideration under s. 11(2)(a) – ―the comparative convenience and expense for the parties . . .‖
Residence was considered in both Lloyd’s Underwriters (B.C.S.C.) at para. 110, and Coulson Aircrane Ltd. v.
Pacific Helicopter Tours Inc. (2006), 57 B.C.L.R. (4th) 226, 2006 BCSC 961 at para. 53 (per Ross J.).
[24]        I now turn to the application of s. 11 of the C.J.P.T.A. I will deal only with those considerations/factors
relied on by counsel in advancing their respective positions.




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Comparative Convenience and Expense for the Parties and Their Witnesses

[25]        Pan-Afric resides and carries on business in British Columbia, while E. & Y. resides and carries on
business in Maryland. E. & Y. has no connection to British Columbia.
[26]        Although Mr. Sayani may testify, the critical witnesses will be those who prepared the Valuation
Analysis, and any experts called with respect to whether the correct methodology was used. Both Mr. Beritela and
Mr. Signorelli, who are central to E. & Y.‘s case, reside in Maryland. It appears that Mr. Gilbert, who resides in
Oregon, is central to Pan-Afric‘s case. In addition, it is likely that representatives of Diginet who reside in the
United States will be required.
[27]         Accepting that the major witnesses reside outside of this jurisdiction, Mr. Drove submits that any
expense and inconvenience related to securing their evidence will be substantially lessened by the fact that both
liability and damages can be determined on the basis of affidavits under the summary trial procedure provided for
under Rule 18A of the Rules of Court.
[28]        I am unable to accept this submission. The correctness of the Valuation Analysis is the subject of
disagreement between persons who appear to have considerable expertise in appraising software. To decide who is
right, and who is wrong, it likely will be necessary for a court to make credibility assessments. This is something
that cannot be done under Rule 18A. In addition, the determination of any economic loss suffered by Pan-Afric
would not be a straightforward matter, capable of being decided on affidavits.
[29]        In support of his argument regarding Rule 18A, Mr. Drove referred to Pacific International Securities
Inc. v. Drake Capital Securities Inc. (2000), 82 B.C.L.R. (3d) 329, 2000 BCCA 632. However, as Mackenzie J.A.
noted, that action did not appear to involve issues of credibility: para. 25.
[30]       Mr. Drove also referred to the judgment of Bennett J. in Seine River Resources Inc. v. Pensa Inc.
(1998), 25 C.P.C. (4th) 360 (B.C.S.C.), in submitting that travel costs are a neutral factor, as witnesses can testify by
means of video conferencing: paras. 83(5), 85.
[31]        While I am prepared to accept that witnesses in Maryland, and Oregon for that matter, can testify before
this Court by means of such technology, I agree with Mr. Cowper, that this is not a realistic option for E. & Y.
Unlike Seine River Resources the present action involves an allegation of professional negligence. Competence
having been put in issue, it is highly unlikely that E. & Y. would be prepared to have this question decided without
its most important witnesses attending in person before the trier of fact.
[32]         For these reasons I am satisfied that convenience and expense for the parties and witnesses favours
litigation in Maryland.
Law to be Applied to the Issues in the Proceedings

[33]         Pan-Afric seeks to recover general, aggravated, punitive, and special damages for breach of contract, and
the tort of negligence. Although by reason of the fact that Pan-Afric is a British Columbia company any loss
suffered would have occurred here, its claim rests on a contract entered into in Maryland, for work done there.
[34]        Mr. Cowper submits that it should be inferred that the parties intended their contract to be governed by
Maryland law. He points to the fact that the appraisal was provided for in the software purchase agreement entered
into by Pan-Afric and Diginet, which contains a clause indicating it is governed by the laws of Maryland. He also
points to the covering letter to the Valuation Analysis which states that the report was prepared in accordance with
terms of the purchase agreement. In the alternative, he submits that the law to which the contract has the most real
and substantial connection is that of Maryland.
[35]         On the material provided I cannot infer that Pan-Afric and E. & Y. intended the contract between them
to be governed by the laws of Maryland. I do, however, find that Maryland law applies on the basis that it is the
system of law with the closest and most real connection to the transaction: see Snap-On-Tools of Canada Ltd. v.
Korosec, [2002] B.C.J. No. 3125 (QL), 2002 BCSC 1844 at paras. 11, 21 (per Sigurdson J.); Castel and Walker,
Canadian Conflict of Laws, 6th ed., Markham: LexisNexis Butterworths, 2005 (loose-leaf), Vol. 2, § 31.2d. This is
because the contract was entered into in Maryland for work to be done there in relation to the purchase of an interest
in an asset there. Its only connection to British Columbia is that one of the parties resides here.




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[36]         With respect to the negligence claim, I similarly hold that it is governed by the laws of Maryland. What
is in issue here is the conduct of Maryland professionals whose competence should be judged according to the laws
and professional standards applicable in that jurisdiction. If the alleged tort was committed, then it was committed
there, not here: see Coast Spas Inc. v. California Acrylic Industries Inc., [1997] B.C.J. No. 1718 (QL) (S.C.) at
para. 25 (per Lowry J., as he then was); Castel and Walker, Canadian Conflict of Laws, Vol. 2, § 35.5.
[37]         Although it is open to this Court to apply the contract law, tort law, and professional standards of
Maryland, the fact that these are the ones under which this action should be determined weighs in favour of
litigating there.
Enforcement of an Eventual Judgment

[38]        Mr. Cowper argues, although not strenuously, that the fact that Maryland is not a reciprocating state
under the Court Order Enforcement Act, R.S.B.C. 1996, c. 78, weighs in favour of having the action tried here.
However, as Mr. Drove points out, this only means that a judgment from this court in Pan-Afric‘s favour would
require further action there.
[39]        I view this as a neutral factor.
Juridical Advantage/Disadvantage

Limitation Periods
[40]         Both parties made extensive submissions on this point. Their arguments focused on the respective
limitation periods in British Columbia and Maryland. Indeed, Mr. Drove described this as the ―lynchpin issue‖, and
said that the loss of the limitation period applicable here could potentially be fatal to his client‘s case.
[41]         Although this lawsuit was commenced approximately 12 1/2 years after the Valuation Analysis was
prepared, Pan Afric‘s position is that the normal two-year limitation period for tort and contract actions set out in
s. 3(2)(a) of the Limitation Act, R.S.B.C. 1996, c. 266, does not apply, because it did not became aware of the
alleged computation error until so advised by the Canada Revenue Agency. Relying on ss. 6(3) and (4) of the
Limitation Act, it says time did not begin to run until sometime after August, 2005. Those provisions read:
         (3) The running of time with respect to the limitation periods set by this Act for any of the
         following actions is postponed as provided in subsection (4):
               (c)    for professional negligence;
         (4) Time does not begin to run against a plaintiff with respect to an action referred to in
         subsection (3) until the identity of the defendant is known to the plaintiff and those facts within the
         plaintiff‘s means of knowledge are such that a reasonable person, knowing those facts and having
         taken the appropriate advice a reasonable person would seek on those facts, would regard those
         facts as showing that
               (a) an action on the cause of action would, apart from the effect of the expiration of a
                    limitation period, have a reasonable prospect of success, and
               (b) the person whose means of knowledge is in question ought, in the person's own interests
                    and taking the person's circumstances into account, to be able to bring an action.

[42]        With respect to the situation in Maryland, E. & Y. filed the affidavit of Andrew Marc Dansicker, a
lawyer licensed to practice in that jurisdiction. He deposes that by reason of § 5-101 of the Maryland Courts and
Judicial Procedure Code, there is a three-year limitation period for actions for breach of contract and professional
negligence. That provision reads:
         A civil action at law shall be filed within three years from the date it accrues unless another
         provision of the Code provides a different period of time within which an action shall be
         commenced.

[43]       Mr. Dansicker goes on to state that § 5-101 has been judicially interpreted as being subject to a
―discovery rule‖, the operation of which he describes as follows:



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         Pursuant to the discovery rule, the statute of limitations will only begin to run when the plaintiff
         has knowledge of the alleged wrong or should have knowledge of the circumstances which would
         cause a reasonable person in the position of the plaintiff to undertake an investigation which, if
         pursued with reasonable diligence, would have led to knowledge of the alleged wrong.

He was careful to add that he was not asked to express an opinion on how the law of Maryland would be applied to
the facts of this matter.

[44]         Mr. Drove submits that to try this matter elsewhere than in British Columbia would result in his client
losing the postponement provisions of the Limitation Act. Mr. Cowper‘s response is that given the ―discovery rule‖
in Maryland, Pan-Afric would be in the same position there with respect to the limitation period, as it is here. He
notes that if the facts as to when Pan-Afric first learned of the error in the report are as set out in its Statement of
Claim, then the limitation period has not expired in either jurisdiction.
[45]        Additionally, Mr. Drove submits that if the action proceeds in British Columbia, then E. & Y. may still
be able to rely on the Maryland limitation period by reason of s. 13(1) of the Limitation Act, which provides:
         If it is determined in an action that the law of a jurisdiction other than British Columbia is
         applicable and the limitation law of that jurisdiction is, for the purposes of private international
         law, classified as procedural, the court may apply British Columbia limitation law or may apply
         the limitation law of the other jurisdiction if a more just result is produced.

[46]        I am not persuaded that there is any limitation period advantage to be gained or lost depending on
whether this matter is tried in British Columbia, or Maryland. On the facts pleaded by Pan-Afric the limitation
periods in both jurisdictions did not start to run until August of 2005. It will not expire in Maryland until August of
2008.
[47]        After the hearing of this matter a question arose in my mind as to whether the Limitation Act postponed
the period for Pan-Afric‘s claim for breach of contract, as well as for negligence. This is because although
―professional negligence‖ is mentioned in s. 6(3), breach of contract is not. Neither counsel drew any distinction
between these causes of action in their respective submissions.
[48]          Upon looking into this issue I found that it had been dealt with in Cammack & Co. Notaries Public v.
Kavanagh, [2006] B.C.J. No. 1964 (QL), 2006 BCSC 1298, which involved an action against a notary for
negligence in drafting an agreement concerning the purchase of a piece of property. In dismissing an appeal from a
trial in the Provincial Court, Silverman J. held that it does make a difference whether a case is advanced in contract
or in tort because ―s. 6(3) of the Limitation Act does not permit an extension of time where the cause of action is
one of contract‖: para. 31.
[49]       In light of this decision, I requested written argument from counsel regarding the effect of s. 6 of the
Limitation Act on the breach of contract claim. I have now had the benefit of those submissions.
[50]       Mr. Drove submits that Cammack & Co. Notaries Public is wrongly decided, and should not be
followed. In his detailed argument he refers to a number of authorities and statutory provisions which do not appear
to have been considered in that case.
[51]        Mr. Cowper, on the other hand, argues that I should follow this decision. He places particular reliance
on the principles set out by Wilson J., as he then was, in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590
(B.C.S.C.).
[52]         Although Mr. Drove raises a number of points that appear to be worthy of fuller consideration, I have
decided not to engage in an analysis of whether s. 6 of the Limitation Act extends the time for bringing a breach of
contract claim founded on an allegation of professional negligence. For present purposes I will proceed on the basis
that the actions in both contract and tort were brought in time. This is the view most favourable to Pan-Afric.
[53]       Assuming Pan-Afric is correct my conclusion with respect to limitation periods expressed in paragraph
46 remains the same. It is a neutral factor.




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Summary Trial Procedure
[54]         As discussed in paragraphs 27 to 29 above, I am of the view that the issues raised in this action are not
suitable for disposition by way of a summary trial. Accordingly, I do not accept Pan-Afric‘s argument that it will
lose the advantage of Rule 18A if this Court declines jurisdiction.
[55]       In any event, it appears from Westec Aerospace Inc. v. Raytheon Aircraft Co. (1999), 67 B.C.L.R. (3d)
278, 1999 BCCA 243, affirmed without reasons, [2001] 1 S.C.R. iv, 2001 SCC 26, that merely because a matter is
amenable to resolution under Rule 18A does not constitute a juridical advantage. In that case Rowles J.A., in
allowing an appeal and staying an action commenced in British Columbia, stated:
         [53]   The other juridical advantage identified by the chambers judge was the availability in this
         Province of summary trial proceedings. If this factor alone were considered cogent evidence of an
         important juridical advantage, a litigant would be free to commence parallel proceedings in this
         Province whenever it had been sued in a jurisdiction which lacks the equivalent summary trial
         procedure available under Rule 18A of the Rules of Court. Such a ruling could have sweeping
         consequences and offends the principle of comity by refusing to acknowledge the efficacy of
         proceedings brought in jurisdictions which do not mirror exactly the procedural rules of this
         Province.
         [54]    Westec has led no evidence as to why its dispute is particularly suited to resolution by
         summary trial procedure or, for that matter, whether a summary trial procedure is generally
         available in Kansas.

Conclusion With Respect to Forum Non Conveniens

[56]       The Maryland courts are the more appropriate forum in which to have the issues raised in this lawsuit
determined. What is in dispute is whether professional services engaged there were properly performed there. This
determination is to be made on the basis of the law and professional standards of Maryland. As well, the
comparative convenience and expense to the parties and their witnesses favours proceeding there.
[57]        In short, as put by Mr. Cowper, the center of gravity of this litigation exists in Maryland.
Nature of the Stay

[58]       E. & Y. has established that a stay is appropriate. However, I am not prepared to grant one on an
unconditional basis. This is because it cannot be said with certainty how § 5 -101 of the Maryland Courts and
Judicial Procedure Code will be applied should E. & Y. plead a limitation defence. In this regard I note again that
Mr. Dansicker did not express an opinion on this point. I also note E. & Y. has not said that it will forgo raising
such a defence should it be successful on this application.
[59]       Under s. 11(1) of the C.J.P.T.A. I have the power to ―decline to exercise [this Court‘s] territorial
competence . . . on the ground that a court in another state is a more appropriate forum in which to hear the
proceedings‖. This is a codification of this Court‘s jurisdiction at common law.
[60]         This being so, I have the power to grant not only a stay but also, where it is necessary to ensure that
justice is done between the parties, a conditional stay. Although I am not aware of such a stay having been granted
in British Columbia, it has been done elsewhere: see United Oilseed Products Ltd. v. Royal Bank of Canada,
[1988] 5 W.W.R. 181 (Alta. C.A.) at 192 (per Stevenson J.A., as he then was), Pre Print Inc. v. Maritime
Telegraph & Telephone Co. (1999), 254 A.R. 336, 1999 ABQB 890 at para. 33 (per Sanderman J.), Nissho Iwai
Co. v. Shanghai Ocean Shipping Co. (2000), 185 F.T.R. 314 at paras. 19, 22 (per Gibson J.).
[61]         Pan-Afric chose to litigate in British Columbia, in part because it wishes to rely on the postponement
provisions of the Limitation Act. In all the circumstances it would be unfair for this Court to unconditionally
decline to exercise its admitted territorial competence, only to have the action dismissed in Maryland solely on the
basis that it was not brought within time there.
[62]       Whether a dismissal in Maryland on the basis of an expired limitation period would operate as a bar to
prosecuting this matter here is something I need not decide. There is some authority to the effect that it would not:
see Lange, The Doctrine of Res Judicata in Canada, 2nd ed., Toronto: LexisNexis Butterworths, 2004, at 358.



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[63]        I direct that this action be stayed conditionally. This stay will become final if, and only if, any action
instituted by Pan-Afric against E & Y. in Maryland with respect to its Valuation Analysis of the Diginet software is
decided on the merits. If such an action is dismissed solely on the basis that the limitation period in Maryland has
expired, then Pan-Afric will be at liberty to apply to have the stay vacated.
Costs

[64]        Both parties seek costs on this application. As well, E. & Y. seeks costs with respect to the main action.
[65]         Notwithstanding E. & Y. has been successful, at least to the point of obtaining a conditional stay, I am
not prepared to award costs at this time. Rather, as Powers J. did in Harrison v. Fedderly Transportation Ltd.
(2006), 60 B.C.L.R. (4th) 367, 2006 BCSC 1685 (at para. 30), I am going to exercise my discretion, and order that
costs in this action to date, including this application, be contingent on certain events.
[66]        If the merits are determined in Maryland, then those costs (determined on the British Columbia tariff)
will follow any order for costs made there. However, if the merits are not determined in Maryland, then those costs
will be costs in the cause here.




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                                                                   Drafting Pleadings

                                               Steven Mulhall Q.C.
                                            Borden Ladner Gervais LLP

I.       FUNCTION OF PLEADINGS

There are four functions of pleadings:

(1)      To clearly and precisely define the issues or questions which are in dispute between the parties to the action
         and which are required to be determined by the court. Effective pleadings are ones which narrow the issues
         and reduce the time required to try the action.

(2)      To require each party to give fair notice to the other of the case it has to meet so that it may prepare its
         evidence for trial.

(3)      To inform the court of the events giving rise to the litigation and the issues between the parties. The
         pleadings set the limits of the action which may not be extended without amendments.

(4)      To provide a permanent record of the issues raised in the action which is readily available for reference for
         future litigants.

II.      CONTENTS OF PLEADINGS

Rule 19(1) of the Rules of Court states:

         A pleading shall be as brief as the nature of the case will permit and must contain a statement in
         summary form of the material facts on which the party relies, but not the evidence by which the
         facts are to be proved.

The plaintiff must plead all the material facts which are required to establish a legally complete cause of action.
Similarly, the defendant must plead all facts necessary to establish its defence.

In addition to pleading the material facts, a party can also plead law. However, Rule 19(1) states that the evidence
by which the facts are to be proved cannot be pleaded. The difficulty arises in differentiating between fact,
evidence, and law. Words such as ―fraud‖ and ―conspiracy‖ cannot easily be placed into one of these categories.

The distinction between fact and evidence in Black‟s Law Dictionary (revised 4th edition), ―fact‖ is defined as:

         A thing done; an action performed or an incident transpiring; an event or circumstance; an actual
         occurrence.

―Evidence‖ is defined as:

         Any species of proof or probative matter, legally presented at the trial of an issue, by the act of the
         parties and through the medium of witnesses, records, documents, concrete objects, etc for the
         purpose of inducing belief in the minds of the Court or Jury as to their contention.

These definitions may shed some light on the difference between fact and evidence, but as Lord Justice Brett said in
Philipps v. Philipps (1878), 4 Q.B.D. 133, ―The difference, although not so easy to express, is perfectly easy to
understand.‖

At first glance, the distinction between fact and law appears simpler. However, consider the word ―fraud‖ as
defined by Black‟s.




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         Fraud in fact consists in an actual intention to defraud, carried into effect; while fraud imputed by
         law arises from a man‘s conduct in its necessary relations and consequences.

III.     RULES OF PLEADINGS

A.       RULE 19(2)

This rule states that a pleading shall contain the ―effect of any document or the purport of any conversation,‖ and not
the precise words of the documents or conversation. However, in practice, it is often more convenient to quote
portions of what was written or said if the quotation is not long. This is permitted by the closing words of Rule
19(2) which allows the precise words of documents or a conversation to be stated ―insofar as those words are
themselves material.‖

B.       RULE 19(7)

This rule states that ―a party shall not plead an allegation of fact or a new ground or claim inconsistent with the
party‘s previous pleading.‖ It requires a party to plead matters in the alternative and can be very useful in forcing a
party to narrow its case and sharpen the issues. In one case, a defendant alleged that the plaintiff was wearing ―three
hats‖: a broker, an agent for a vendor of shares, and a principal vendor of securities. It was inconsistent to plead that
a party was both an agent and a principal in respect of the same set of facts, and thus the pleadings could not be in
the form sought by the defendant.

C        RULE 19(10)

This rule provides that the incorporation of a corporate party or the office or status of a party is admitted unless
specifically denied in a pleading. Where the plaintiff is a corporation, counsel for the defendant should always do a
corporate search before pleading in defence. If the plaintiff has been struck off the register and is, therefore, non-
existent, an unaware defendant would be deemed to have admitted the existence of the plaintiff.

D.       RULE 19(11)

This rule states that where a party relies on ―misrepresentation, fraud, breach of trust, wilful default or undue
influence, or where particulars may be necessary‖ the party must provide particulars in the pleading. It is a
discretionary matter for a Chambers judge to determine ―where particulars may be necessary.‖ Particulars may be
required at three stages: before pleading, after pleading, and after discoveries. It is impossible to draw a clear line
between evidence and particulars. See Cominco v. Westinghouse (1978), 6 B.C.L.R. 25.

E.       RULE 19(13)

This rule allows a defendant to ―set off or set up by way of counterclaim any right or claim.‖ The right to set off and
counterclaim is found in s. 6 of the Law and Equity Act, R.S.B.C. 1979, c.224. The main difference between the two
pleas is that a set-off provides a defence to the plaintiff‘s action while a counterclaim is in effect a separate and
independent action by the defendant against the plaintiff which does not destroy the plaintiffs original claim. Where
a set-off is equal to or greater than the amount of the plaintiff‘s claim, the plaintiff is normally required to pay the
defendant‘s costs in the action on the theory that the plaintiff was at fault in bringing it. A successful counterclaim
by a defendant entitles the defendant to its costs of the counterclaim, but does not dissentitle the plaintiff to its costs
of the original claim, because the counterclaim does not defeat the plaintiff‘s claim.

F.       RULE 19(18)

This rule states that a demand for particulars does not operate as a stay of proceedings or give an extension of time
to deliver a pleading. Unless a party obtains the consent of the other side, it must apply to court for an extension of
time for filing pleadings pending reply to the demand for particulars. In practice, this application is done in response
to and at the same time as an application to compel particulars.




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G.       RULE 19(20) AND (21)

These rules provide that a general denial of allegations made in the pleadings is sufficient, but that a party shall not
answer a point of pleading evasively, but shall answer the point of substance. Good counsel will discern those
points of defence upon which his client‘s case will be determined when drafting a statement of defence. It is
important to try to persuade the judge that you have several specific valid points. A standard form of defence
denying all the plaintiff‘s allegations is ineffective.

…

IV.      GENERAL PRINCIPLES - STATEMENT OF CLAIM

This is your first shot at the Judge. Your aim is to tell a clear and convincing story. The statement of claim should
contain the following basic information:

(1)      identification of the parties;

(2)      status of the parties;

(3)      facts to demonstrate jurisdiction of the court over the parties;

(4)      what, where, when, and how things happened;

(5)      why they happened; and

(6)      relief sought.

V.       OTHER POINTS TO CONSIDER

(1)      The use of schedules;

(2)      presentation of the style of proceeding (order of parties);

(3)      anticipation of defences;

(4)      pleading of statutes;

(5)      burden of proof;

(6)      reference to other pleadings; and

(7)      ―The plaintiff says.‖

VI.      STATEMENT OF DEFENCE

The three forces of defence:

(1)      traverse (denial);

(2)      confession and avoidance (the claim is true as far as it goes but it is not the whole story); and

(3)      demurrer (even assuming the claim is true, the claim is bad in law).




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VII.     COMMON ERRORS IN PREPARING
         PLEADINGS, AFFIDAVITS, AND NOTICES OF MOTION

(1)      The statutory form of Notice of Motion requires use of the term ―Courthouse‖ not ―the Law Courts‖ or
         ―Court House.‖

(2)      All applications are made by a party not ―on behalf of‖ a party.

(3)      It is useful, particularly in the case where parties may be unrepresented by counsel, to include in the Notice
         of Motion the phrase ―the presiding Judge in Chambers.‖

(4)      It is dangerous to summarize the contents of an exhibit or a transcript of an examination for discovery. The
         preferable practice is to identify the document as an exhibit but not summarize it.

(5)      Affidavits should not contain statements as to the contents of statutes.

(6)      It is unnecessary to use the word ―that‖ at the beginning of each paragraph of an affidavit.

(7)      The introductory paragraph in an affidavit should contain the full name of the deponent, not the deponent‘s
         initials.

(8)      The introductory paragraph of an affidavit must contain the name, address, and occupation of the deponent,
         preferably in that order. I have seen many examples of affidavits where the occupation is omitted, but the
         employment is stated in the following paragraph. This is insufficient.

(9)      Numbers should be in numerals only, not spelled out. (An exception may be made for numbers 1 to 10.)

(10)     The proper way of stating facts based on information is, ―I am informed by ____________ and verily
         believe . . . .‖ The word ―advised‖ should not be used. There are situations where you may wish to repeat
         something stated to you which you do not necessarily believe. If this is the case, it should be clearly
         indicated.

(11)     The proper way of identifying exhibits in an affidavit is: ―Now produced and shown to me and marked
         Exhibit ‗__‘ to this my affidavit is . . .‖ The reason for this form of wording is that exhibits are not always
         attached to affidavits. It is unnecessary to attach an exhibit in excess of five pages. It is, however,
         permissible to use the words ―attached as Exhibit ‗__‘‖ but this form of wording should only be used where
         the exhibit is actually attached. Use of the word ―annexed‖ should be avoided.

(12)     In a judgment for money, the order should read ―that the defendant pay to the plaintiff.‖ It should not read
         ―that the plaintiff recover from the defendant.‖

(13)     Where court order interest is awarded, the proper reference is to ―court order interest‖ not ―prejudgment
         interest.‖

(14)     In pleadings, it is completely unnecessary to use the words ―the (plaintiff/defendant) says.‖

(15)     The proper reference to the Rules of Court is: ―Rules of Court‖ not ―Supreme Court Rules.‖

(16)     The proper reference to the beginning of a pleading is ―style of proceeding‖ not ―style of cause.‖

(17)     When abbreviating the style of proceeding the words ―and others‖ ought to be used not ―et al.‖

(18)     The forms in Appendix ―A‖ to the Rules of Court have the style of proceeding in lower case letters. Also,
         there is no colon after the words ―between‖ or ―and‖ in the style of proceeding. There are commas after the
         names of the parties.



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                                                                           Pleadings


                                                   W. Stanley Martin
                                            Fasken Martineau DuMoulin LLP

A.       OBJECTIVES

1.       Prepare a clear, orderly and succinct statement of the claim or defence:

         (a)         Audience:         Mr. Justice Taylor in his address ―The Third Art of Advocacy‖ reviews the
                                       working life of a member of the Supreme Court of British Columbia. He states:

                     ―In an ideal legal system the judge would have an opportunity not only to study at leisure the
                     pleadings in each action he is to hear, and to research the principal questions of law which they
                     disclose, but would also conduct one or two pretrial conferences with counsel in order to gain a
                     clear grasp of the issues and establish the procedural course of the trial before he embarks on the
                     hearing itself.‖

                     He goes on to say that such is not the case in British Columbia and the most that you can hope for
                     is that the judge has received the record the night prior to the trial. The pleadings are the first
                     exposure the court has to the case and it is important to strike a responsive chord by providing a
                     carefully prepared document. If the case is to be heard by a jury it is even more important that the
                     language chosen be simple and clear.

         (b)         Clarity:          Mr. Justice Taylor, in ―The Third Art of Advocacy‖ states:

                     ―Almost everywhere else, linguistic flourishes, the latest buzz words, new fancy talk will sell
                     anything. These devices are useless when it comes to selling the only merchandise with which the
                     courts can deal: ideas. The tribunal has to understand what counsel actually means by his words.
                     That takes hard work on both sides.‖

2.       Prepare legally adequate pleadings:

         (a)         Raise issues in sufficient detail to permit the range of examinations for discovery which you
                     require.

         (b)         Raise issues in sufficient detail to permit you to lead the relevant and necessary evidence at trial.

         (c)         Disclose a cause of action and a factual basis upon which judgment in your client‘s favour could be
                     granted.

B.       PREPARATION

1.       Limitations. The steps which follow are the ones which should be taken when you have adequate time.
         The initial determination that you have to make when you are first consulted is what the appropriate
         limitation period is. If it is about to expire you should file immediately a broad, general document which
         will cover all bases!

2.       Evidence Review.

         (a)         Documents - review both client‘s documents and documents in the possession of other parties who
                     are prepared to cooperate (e.g. in motor vehicle accident the police reports), and documents which




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                     are in the public domain which are relevant, such as reports on weather conditions, stock market
                     trading figures, regulatory filings, etc.

         (b)         Investigative Reports. If the case is one where the assistance of experts is required it is useful to
                     have their preliminary opinions at least so that you can make sure you are on reasonably solid
                     ground. You want to be sure that you are shooting at the correct target.

         Example:

         Peter Ballem once acted on behalf of an individual that suffered an epileptic seizure while driving which
         caused him to stamp down on the, accelerator and collide with a number of vehicles. The result was
         extensive property damage to a number of vehicles and physical injury to a few people. The actions were
         dismissed against Peter‘s client and none of the plaintiffs had commenced action against the physician who
         had advised Peter‘s client that he could drive in spite of the fact that he did not meet the guidelines under
         the Motor Vehicle Act.

         (c)         Client and other witnesses’ evidence. You should have the chronological account and minutes of
                     evidence prepared so that you can prepare a pleading which is consistent with the evidence
                     available to you.

3.       Legal Research. It is necessary to research the law so that you are aware of the grounds which must be
         met to entitle your client to the relief sought.

4.       Review in-house precedents or precedent books.

5.       Review drafts with your client prior to filing. Nobody is as familiar with the facts as your client.

C.       SPECIFIC POINTS IN PLEADING

1.       Crisp, concise and professional, not prolix or argumentative. (See Rule 19(1) - ―as brief as the nature of the
         case will permit‖.)

2.       Plead the material facts, not the evidence (Rule 19(1)). This means you have to understand the legal theory
         of the claim or defence.

3.       If possible, your pleadings should tell your client‘s story. It is impossible to tell from many pleadings what
         actually happened.

4.       Plead the necessary law. The English texts are not a good guide to the British Columbia practice. The
         strict view is that you can argue any point of law arising from the allegations of fact, with the exception of
         certain specific matters (e.g. estoppel, res judicata, illegality, limitation period) which have to be pleaded.
         The general (and reasonable) practice in B.C. is to plead the legal consequences of the material facts.

5.       Plead the statute or regulation relied on, and make sure you have pleaded the material facts to trigger the
         application of the provision.

6.       Make sure there is a factual basis for the pleaded allegations (Stewart v Tse (1992), 71 BCLR (2d) 13
         (S.C.). Avoid pleading matters which your client has no realistic possibility of establishing.

         Example:

         One large Vancouver law firm recently filed a defence in an action on a guarantee which alleged that the
         guarantor had been released from his obligation pursuant to a forbearance agreement entered into
         previously. That same firm had acted for the defendant in the negotiations concerning the forbearance
         agreement and prepared a draft forbearance agreement which specifically released the guarantor. That was



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         rejected on the grounds that it released the guarantor. They then prepared another form of forbearance
         agreement which did not release the guarantor and merely deferred payment which was accepted. One
         wonders when the lawyer from that firm will be forced to take the stand on the issue of the terms of the
         forbearance agreement and what the chances are of the court finding that there was a release of the
         guarantor when he was represented throughout by a lawyer who had demonstrated his awareness of how to
         draft a release of guarantee.

7.       Statements of Defence

         (a)         Plead any matters which would otherwise take the plaintiff by surprise (Rule 19(15)). This may
                     include a conclusion of law.

         (b)         Admit the obvious and non-controversial.

         (c)         Choose whether to respond paragraph by paragraph to the statement of claim or whether to use the
                     defence to put forward affirmatively your client‘s case.

8.       Particulars are sometimes necessary: see Rule 19(11) - misrepresentation, fraud, wilful default, undue
         influence - plus many other areas - negligence, debt.

9.       The court has a further discretion to order particulars: Big Bay Timber Ltd. v Arkinstall Logging Co. Ltd.
         (1978), 7 BCLR 69. Distinguish particulars necessary for pleading and particulars required after discovery:
         Cominco v. Westinghouse (1978), 6 BCLR 25.

10.      Amendment is common (even after the close of evidence at trial) but it is better to get it right first.
         Discovery scope may be limited and some amendments may not be allowed (especially fraud). Contrast
         Cominco v. Westinghouse (1979), 11 BCLR 142 at 148-9, and Rogers v. Hunter (1982), 37 BCLR 321 at
         323. Amend the statement of claim before trial to delete claims which have been abandoned.

11.      Take extra care over:

                    deemed admissions (e.g. Rule 19(10) - status)

                    inconsistent allegations (Rule 19(7))

                    defamation (Rule 19(12), common law)

                    effect of documents (Rule 19(2)).




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                                                      APPENDIX 1

Pleadings Check List

The following matters must be pleaded:1

          Contents of documents                                    Malice, fraudulent intent and knowledge
          Contract or legal relationship                           Presumptions
          Res ipsa loquitur                                        Judicial notice
          Private Act of Parliament                                Foreign law
          Specific statues, e.g., Sale of Goods Act                Regulations
          Aggravation and mitigation                               Statute of Frauds
          Limitations Act                                          Statutory limit of liability
          Not guilty by statute                                    Conditions precedent
          Notice                                                   Illegality
          Want of jurisdiction                                     Ultra vires
          Estoppel                                                 Res judicata
          Contributory negligence                                  Accident
          Act of third party                                       Non est factum
          Want of authority                                        Want of capacity
          Release, payment or performance                          Accord and satisfaction
          Settled account                                          Surrender
          Waiver                                                   Equitable defences
          Bona fide purchaser without notice                       Defamation
          Tender before action                                     Set-off
          Counterclaim




1
    Taken from D. Stockwood, Civil Litigation (1980), at p. 145.


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                                                       Murrell v. Simon Fraser University

British Columbia Court of Appeal
Vancouver, British Columbia
Judgment: filed December 30, 1997

1.       SOUTHIN J.A.: - This is an appeal from the judgment dismissing the action of the appellant, the plaintiff
below, [1996] B.C.J. No. 935, for damages for what is commonly called wrongful dismissal but is more accurately a
claim for damages for breach of the implied term of a contract of employment under which an employee is entitled
to reasonable notice of termination.

2.       It is common ground first, that the appellant, who was the operations administrator for the Faculty of
Business Administration, having an annual salary of approximately $49,000.00 and assorted benefits, was dismissed
from her employment in the autumn of 1994; secondly, that there was no express term, written or oral, of her
contract of employment setting forth the duties owed by her to the respondent; thirdly, that the burden of proving
facts which warranted the respondent in terminating the appellant without notice lies upon the respondent.

3.       There are two serious procedural difficulties in this appeal. First, the pleadings are so deplorable that the
appellant has been able to put forward, not unreasonably, the proposition that the respondent‘s pleadings did not
properly disclose the case she had to meet on the question of justification for the dismissal. Secondly, it is not easy
to discern from the learned trial judge‘s reasons for judgment what are findings of fact and what is merely a
narrative deciding nothing. Had the pleadings in this case been properly drawn, the learned judge would have had a
sound framework for his reasons.

4.        The statement of claim was 42 paragraphs long. By way of comparison, the statement of claim in the 13th
edition of Bullen & Leake & Jacob‘s Precedents of Pleadings (London: Sweet & Maxwell, 1990) for a claim for
damages for wrongful dismissal without notice is a mere six paragraphs. Even allowing for the fact that, in the case
at bar, the 42 paragraphs include a claim for defamation and pleas which may be said to go to whether there should
be an award of aggravated or punitive damages, the statement of claim is riddled with pleas which are not of
material facts. What, for instance, is the materiality of a plea, as in this statement of claim, that, ―The plaintiff was
born [on such and such a date] and is a single mother with two children.‖?

5.        The statement of claim, with its deficiencies, in itself would cause difficulties for the draftsman of a
statement of defence, but the draftsman then made his or her own difficulties, one of which, strictly speaking, should
be fatal to the defence.

6.       Bullen, Leake & Jacob‘s, supra, at p. 1141, gives what I commend to the profession as a most useful form
of defence in an action such as this. It runs to three paragraphs:

         1.          There were express terms of the said contract of employment that the plaintiff would:

    (i) act towards the defendants with all good faith, fidelity and loyalty and/or not to the detriment of or
        in competition with the defendants‘ interests;

    (ii) obey the reasonable and lawful directions of the defendants;

    (iii) not so act as to damage or destroy the trust and confidence between the plaintiff and defendants;

    (iv) act with all due skill, care and competence;

    (v) not neglect his duties to the defendants; [or as the case may be.]

         2.          The plaintiff was in breach of the said terms in that.




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3.       In the premises the plaintiff repudiated the said contract which repudiation the defendants were
         entitled to and did accept by and/or the defendants were entitled to and did dismiss the plaintiff
         summarily, namely .

7.       Unlike the draftsman of the precedent in Bullen & Leake & Jacob‘s, the draftsman here never did allege
what the terms of the contract of employment were that were breached by the appellant.

8.       There is no plea of the implied term of good faith, fidelity and loyalty. There is no plea of a duty, or a term
requiring the appellant, to obey the reasonable and lawful directions of the defendants, and so forth.

9.       Such a plea or pleas are integral to an employer‘s defence and the reason is worth expatiating upon. It has
long been implied by law not by an application in any given case of the officious bystander rule that it is a term of
every contract of employment that the employee shall serve his employer with good faith and fidelity (see the oft-
cited case of Robb v. Green, [1895] 2 Q.B. 315 (C.A.)).

…………………………

17.       In my opinion, where, as in the case at bar, the conduct relied upon by way of justification is in the conduct
of the employer‘s business, the implied term to be pleaded is the obligation of good faith and fidelity; where the acts
to be pleaded in justification are outside the employer‘s business, such as the hypothetical thieving bank manager,
the plea should be of an implied term not to act so as to destroy trust and confidence and a breach of that term.

18.      I have already referred to the difficulties with the statement of claim and with the statement of defence.

19.      There is a further difficulty. There is no reply and yet it appeared to me that some of the argument before
us might be said to raise what is commonly called ―condonation‖, properly a matter for reply. As Lord Atkinson
points out in the Federal Supply case, supra, at p. 8, this is not a word ―happily chosen‖:

         The word ―condonation‖, though used in some of the authorities cited by most distinguished
         Judges, is not quite happily chosen. In the cases of Phillips v. Foxhall [(1872), 41 L.J.Q.B. 293;
         L.R. 7 Q.B. 666] and Boston Deep Sea Fishing and Ice Co. v. Ansell [(1888) 39 Ch. D. 339], so
         much relied upon by the respondents, the word is used as applicable to a case where a master, with
         full knowledge of a servant‘s misconduct, continues to retain him in his, the master‘s, service. It
         is likened to the case of a man who, knowing he has a legal right to do either of two things,
         determines or elects to do one of them in preference to the other; and also likened to the case of a
         man who, knowing that a forfeiture has been worked, and that he has a legal right to take
         advantage of it, deliberately abandons that right that is, waives the forfeiture. In these cases,
         however, to which ―condonation‖ is compared, the burden of proving that the election had been
         made or the forfeiture waived would rest upon him who relied upon the one or the other. And so it
         is with condonation. The master must be fully aware that the servant has by his misconduct
         forfeited the right to be continued in his master‘s service, which is the correlative of the master‘s
         right to dismiss him before he can be held to have waived that forfeiture.

20.      In these cases, it can be a nice question whether there was a breach of the implied term which was
―condoned‖ by the employer or the acts of the employer show that he did not consider the act in issue to be a
breach. Suppose, for instance, an employee is in the habit of coming into work half an hour after the normal starting
time of the office. If the employer says nothing, should the conclusion be that there was no breach or that the breach
was ―condoned‖?

21.      To return to the statement of defence, the respondent pleaded thus:

         4.          In answer to paragraphs 8 and 28 of the Statement of Claim, the Defendants say that the
                     Plaintiff was dismissed from her employment for just cause.

                                                         ***



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         19.         In further answer to the whole of the Statement of Claim, the Defendants say that the
                     Plaintiff performed acts and omissions which extinguished the University‘s trust in the
                     Plaintiff and which made it impossible for the University to maintain confidence in the
                     Plaintiff that she would carry out her duties in the future in an appropriate, responsible
                     and trustworthy manner.

22.      No particulars having been given of either of these allegations, the appellant sought particulars only of
para. 19. Because much turns in this case on the reply given to the demand, I now quote it:

         In reply to the Plaintiff‘s Request for Particulars dated June 13, 1995, the Defendants say that the
         particulars of the Statement of Defence are as follows:

         1.          Under paragraph 19, the specific acts and omissions of which the Defendants are
                     presently aware which extinguished the trust of Simon Fraser University (―University‖)
                     in the Plaintiff and which made it impossible for the University to maintain confidence in
                     the Plaintiff that she would carry out her duties in the future in an appropriate,
                     responsible and trustworthy manner are:

                     (a)      Acting inappropriately, irresponsibly and in contravention of policy and
                              procedure by borrowing monies for personal use from University funds;

                     (b)      Providing inaccurate information to her co-workers regarding her borrowing of
                              monies for personal use from University funds;

                     (c)      Making inaccurate alterations and adjustments to the documentation maintained
                              by the University relating to her borrowing of monies for personal use from
                              University funds;

                     (d)      Delaying the repayment to the University of monies borrowed by her for
                              personal use from University funds;

                     (e)      Providing inaccurate information regarding her borrowing of monies for
                              personal use from University funds to representatives of the University during
                              the investigation of this and other issues relating to her employment by the
                              University;

                     (f)      Acting inappropriately, irresponsibly and in contravention of policy and
                              procedure by seeking and using University funds to pay the cost of personal
                              travel by her which was of no benefit to the University;

                     (g)      Providing inaccurate information to her co-workers and superiors regarding her
                              use of University funds to pay the cost of personal travel which was of no
                              benefit to the University;

                     (h)      Failing to compensate the University for University funds used by her to pay the
                              cost of personal travel after it became or should have become apparent to her
                              that the travel was of no benefit to the University;

                     (i)      Providing inaccurate information regarding her use of University funds to pay
                              the cost of personal travel which was of no benefit to the University to
                              representatives of the University during the investigation of this and other issues
                              relating to her employment by the University;

                     (j)      Acting inappropriately, irresponsibly and in contravention of policy and
                              procedure by purchasing goods through the University for her personal use;



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                     (k)   Providing inaccurate information to her co-workers regarding her purchase of
                           goods through the University for her personal use;

                     (l)   Delaying the payment to the University of monies owed by her for goods
                           purchased through the University for her personal use;

                     (m)   Providing inaccurate information regarding her purchase of goods through the
                           University for her personal use through the University to representatives of the
                           University during the investigation of this and other issues relating to her
                           employment by the University;

                     (n)   Acting inappropriately, irresponsibly and in contravention of policy and
                           procedure by hiring friends and relatives on behalf of the University to assist
                           with the relocation of the premises of the Faculty of Business Administration in
                           April and May, 1994 (the ―Relocation‖);

                     (o)   Causing the University to pay inappropriately high wages to friends and
                           relatives for their assistance with the Relocation;

                     (p)   Applying to her own outstanding debt to the University monies ostensibly paid
                           by the University to her relatives as wages for assistance with the Relocation;

                     (q)   Providing inaccurate information regarding her hiring of friends and relatives on
                           behalf of the University to assist with the Relocation to representatives of the
                           University during the investigation of this and other issues relating to her
                           employment by the University;

                     (r)   Acting inappropriately, irresponsibly and in contravention of policy and
                           procedure by causing the University to pay for expenses incurred by her and
                           others at the Diamond University Club at meetings which were of no benefit to
                           the University;

                     (s)   Providing inaccurate information regarding the expenses incurred by her and
                           others at the Diamond University Club at meetings which were of no benefit to
                           the University to representatives of the University during the investigation of
                           this and other issues relating to her employment by the University;

                     (t)   Acting inappropriately, irresponsibly and in contravention of policy and
                           procedure by failing to reimburse the University for personal charges incurred
                           by her on utility and service accounts held by the University;

                     (u)   In the alternative, acting inappropriately, improperly and in contravention of
                           policy and procedure by delaying her reimbursement of the University for
                           personal charges incurred by her on utility and service accounts held by the
                           University;

                     (v)   Providing inaccurate information regarding her reimbursement of the University
                           for personal expenses incurred by her on utility and service accounts held by the
                           University to representatives of the University during the investigation of this
                           and other issues relating to her employment by the University;

                     (w)   Acting inappropriately, irresponsibly and in contravention of policy and
                           procedure in the handling of and accounting for University funds in the course
                           of preparing a deposit by the Faculty of Business Administration to the
                           University Cashier‘s Office in or about August 1993;



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                     (x)    Failing to ensure the safe deposit by the Faculty of Business Administration to
                            the University Cashier‘s Office of University funds for which the Plaintiff took
                            responsibility in or about August 1993;

                     (y)    Providing inaccurate information to her co-workers regarding her handling of
                            and accounting for University funds in the course of preparing a deposit by the
                            Faculty of Business Administration to the University Cashier‘s Office in or
                            about August 1993;

                     (z)    Providing inaccurate information regarding her handling of and accounting for
                            University funds in the course of preparing a deposit by the Faculty of Business
                            Administration to the University Cashier‘s Office in or about August 1993 to
                            representatives of the University during the investigation of this and other issues
                            relating to her employment by the University;

                     (aa)   Acting inappropriately, irresponsibly and in contravention of policy and
                            procedure in handling and accounting for monies kept by the Faculty of
                            Business Administration in a locked safe in the Faculty‘s office;

                     (bb)   Acting inappropriately, irresponsibly and in contravention of policy and
                            procedure in failing to ensure the safety and security of funds kept by the
                            Faculty of Business Administration in a locked safe in the Faculty‘s office;

                     (cc)   Acting inappropriately, irresponsibly and in contravention of policy and
                            procedure in failing to ensure the confidentiality and security of the secret
                            combination of numbers required to open the safe in the Faculty‘s office;

                     (dd)   Providing inaccurate information to her co-workers regarding her handling of
                            monies kept by the Faculty of Business Administration in the locked safe in the
                            Faculty office and her failure to ensure the confidentiality and security of the
                            secret combination of numbers required to open the safe;

                     (ee)   Providing inaccurate information regarding her handling of money kept by the
                            Faculty of Business Administration in a locked safe in the Faculty office and her
                            failure to ensure the confidentiality and security of the secret combination of
                            numbers required to open the safe to representatives of the University during the
                            investigation of this and other issues relating to her employment by the
                            University.

23.      The Defendants may provide further particulars of this paragraph when additional information is acquired
and Examinations for Discovery are conducted. [para 23] There have been no applications by either party, either to
the learned judge below or to this Court, for an amendment to the pleadings.

24.      On the one hand, counsel for the appellant asserted in this Court that the respondent‘s statement of defence,
together with the particulars, did not properly disclose the case she had to meet which, as it has now turned out, was
an accusation of flagrant dishonesty. There is much to be said for that assertion. The particulars are prolix,
obfuscatory and mealy mouthed.

25.      On the other hand, counsel for the respondent says the course of trial overcame all the difficulties caused by
the respondent‘s ill-drafted pleadings, and cites my judgment in Cohen v. Ostry (1994), 89 B.C.L.R. (2d) 231, 111
D.L.R. (4th) 241.

26.      In my opinion, this is not a case in which the merits should be decided despite defective pleading. There is
a great deal at stake for the appellant in this case and I do not think it right that this Court should have to construct




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the respondent‘s case for it. In saying that, I have firmly in mind that the burden of proving that it lawfully
terminated the contract of employment is on the respondent.

27.       Although the statement of claim does contain, buried in a prolix assertion of facts which are not material
facts, the pleas of material facts essential to an action for wrongful dismissal, the statement of defence, not having
even a plea of the term of the contract of employment which is said to be breached, does not.

28.      Therefore, ex mero motu and so that order may be brought to this case, I would grant leave to the appellant
to deliver an amended statement of claim in such form as counsel may advise, depending upon Mr. Roberts to
ensure that the statement of claim is a proper statement of claim limited to the material facts only. With a proper
statement of claim from the appellant, the respondent will not have to plead to immaterial allegations on the
appellant‘s part.

29.      The respondent may then seek leave from this Court to deliver an amended statement of defence.

30.      Arrangements for the necessary hearing of the respondent‘s application can be made by counsel through the
Registry.

SOUTHIN J.A.: - I agree.
BRAIDWOOD J.A.: - I agree.
PROUDFOOT J.A.: - I agree.




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                                                     Citizens for Foreign Aid Reform Inc. v.
                                                           Canadian Jewish Congress

British Columbia Supreme Court
Victoria, British Columbia
Judgment: September 28, 1999

ROMILLY J.: - The plaintiff in this action commenced an action against the defendants for defamation. The
defendants brought on this application for the following orders:

         1.          an Order dismissing paragraphs 9 and 10 of the Statement of Claim for failing to disclose
                     a reasonable claim, and by reason that they are unnecessary, scandalous, frivolous and
                     vexatious, pursuant to Rule 19(24) of the Rules of Court. In the alternative, an Order
                     pursuant to Rule 19(11) and (16) that further particulars of the claims and allegations
                     made in paragraphs 9 and 10 be provided to the defendants within 14 days.

         2.          an order pursuant to section 205 of the Company Act, R.S.B.C. 1996 , c. 2 and the
                     inherent jurisdiction of the court that the plaintiff post security for costs with respect to its
                     claim against the defendants in the amount of $61,646.45 within 30 days of the Order,
                     failing which the plaintiff‘s claim will be dismissed.

         3.          an Order pursuant to Rule 19(11) and 19(16) for further particulars of the compensatory
                     damages claimed in the statement of claim and an Order pursuant to Rule 26(10)
                     requiring the plaintiff to produce certain documents within 7 days.

The application for an order under Rule 19(11) and 19(16) with respect to the plaintiff‘s claim for compensatory
damages has been resolved by the plaintiff‘s solicitor undertaking to amend his pleadings to remove the claim for
compensatory damages and inserting instead ―aggravated damages‖.

Factual Background

In a statement of claim in this matter filed in the Victoria Registry, the plaintiffs, in an action in defamation, stated at
paras 5 and 6:

         5.          The defendants, and each of them, in the first half of the year 1998 caused a brochure to
                     issue over its name, and with its imprimatur entitled ―CANADIAN JEWISH
                     CONGRESS PACIFIC REGION Issues of Concern to the Jewish Community of British
                     Columbia 1995-1998‖.

         6.          As a sub topic in the publication referred to above, a chapter was published under the title
                     HATE GROUPS AND HATE PROPAGANDA. This chapter contained the following
                     paragraph regarding the plaintiff:

                              ―While strongly tied to American hate groups, the White Supremacist movement
                              in Canada has an identity distinct from its southern neighbours. Homosexuals,
                              Jews, South Asians, African Canadians and other groups have been the targets
                              of violence and hate propaganda by groups like the Western Guard, the Northern
                              Hammerskins, the Heritage Front, Canadian League of Rights, Citizens for
                              Foreign Aid Reform (C-Far), the National Party of Canada (NPOC), the Church
                              of the Creator, and the Council on Public Affairs, etc. Canadian hate groups
                              often promote themselves as legitimate and academic movements, usually under
                              the guise of free speech, grassroots advocacy on public policy issues on
                              Holocaust revisionism.‖



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The defendants submit that the plaintiff is an Ontario corporation that has no funds and would not be able to pay any
costs that could be awarded against them if they this action is dismissed. They drew my attention to letter dated
June 1, 1994 by the plaintiff organization soliciting funds to pay rent for some premises. The letter reads in part:

         We need help.

         #1.       First, we have just re-opened our office. At the end of March, after eight yeas in the
         same location, C-Far had to close its office. The building was undergoing renovation. Other
         space would have been too expensive. To conserve scarce resources, we have tried to operate in a
         more decentralized manner. It didn‘t work. However, we have found a new location. The
         facilities are better and they are cheaper. However, money is very tight. Would you be able to
         make a one-time donation of a month‘s rent - $378? If not, would you be able to contribute a
         tenth of a month‘s rent --$37.80? You might wish to use postdated cheques.

The defendants, in support of its application also drew my attention to paragraph 3 of the plaintiff‘s statement of
claim which states:

         The plaintiff employs persons to carry out its objects, and for funds relies on the support of donors
         relying on its good reputation in pursuit of its objects.

In reply to this submission by the defendants, the plaintiff filed an affidavit of one Paul Fromm, a director of the
plaintiff who deposed as follows:

         2.          CFAR was incorporated on the 20th day June 1979 in the Province of Ontario pursuant to
                     Letters Patent issued on that date. It has existed since that date, and remains on the
                     Company registry in good standing in Ontario.

         3.          CFAR is not impecunious, and has both an ongoing annual income sufficient to meet any
                     order for costs that may be made against it, and unencumbered assets situated in Ontario
                     which are sufficient to pay any costs that may be ordered by the Court in this action.

Counsel for the defendants counter with the fact that the affidavit of Mr. Fromm is insufficient. They submit his
affidavit contains a bald assertion with no details and he has not deposed to the fact that the plaintiff has exigible
assets.

Issues Raised on this Application

The issues raised on this application are:

         1.          Should an order for security for costs be made against the plaintiff?

         2.          Should paragraphs 9 and 10 of the plaintiff‘s statement of claim be struck out pursuant to
                     Rule 19(24) of the Rules of Court?

         3.          If the impugned pleadings are not struck out, should I make an order for particulars
                     pursuant to Rule 19(11) or (16) of the Rules of Court?

The first issue with which I intend to deal is the issue of security for costs.

The Security for Costs Issue

The plaintiff is an Ontario corporation that is not registered extra-provincially in British Columbia. The defendants
bring the application for security of costs pursuant to the Company Act, R.S.B.C. 1996, c. 62, s. 205 as well as the
inherent jurisdiction of the court. With respect to the latter, the court has an inherent jurisdiction to order security
for costs against a non-resident plaintiff, though the order is a discretionary one that must be exercised judicially and



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in the interests of all parties: Sheill v. Coach House Motel Ltd., [1982] B.C.J. No. 666 (Q.L.) (B.C.C.A.). With
respect to the former, the issue of whether the Company Act has application to a company not incorporated or
registered extra-provincially in this province was discussed by Spencer J. in Ruko of Canada Ltd. v. Canadian
Imperial Bank of Commerce (1991), 49 C.P.C. (2d) 105 (B.C.S.C.). He stated in obiter at p. 107:

         That point [application of Company Act to a non-resident corporate plaintiff] was not fully argued
         before me, and it is not necessary to this application since the Court‘s inherent jurisdiction is also
         invoked, but to the extent it may be thought to be necessary, I express the view that the definition
         of ―corporation‖ in s. 1 of the Act appears to make s. 229 [now s. 205] refer to any company
         regardless of its place of incorporation. Jurisdiction to award costs under the section is engaged
         by the fact that the company has commenced litigation within the Court‘s jurisdiction.

         In other words, in the opinion of this court, section 205 of the British Columbia Company Act has
application to a non-resident corporate plaintiff that is not registered extra-provincially in British Columbia.

Section 205 of the Company Act provides:

         205.        Court may order security for costs

         If a corporation is plaintiff in an action or other legal proceeding and it appears that the
         corporation will be unable to pay the costs of the defendant if the defendant is successful in the
         defence, the court may require security to be given by the corporation for those costs, and may
         stay all proceedings until security is given.

The power to make an order under s. 205 of the Company Act is a discretionary one. In Kropp v. Swaneset Bay Golf
Course Ltd. (1997), 29 B.C.L.R. (3d) 252 at 260-1 (B.C.C.A.), Finch J.A. set forth the principles that ought to guide
the exercise of that discretion:

         The court has a complete discretion whether to order security, and will act in light of all the
         relevant circumstances; the possibility or probability that the plaintiff company will be deterred
         from pursuing its claim is not, without more, sufficient reason for not ordering security; the court
         must attempt to balance injustices arising from use of security as an instrument of oppression to
         stifle a legitimate claim on the one hand, and use of impecuniosity as a means of putting unfair
         pressure on a defendant on the other; the court may have regard to the merits of the action, but
         should avoid going into detail on the merits unless success or failure appears obvious; the court
         can order any amount of security up to the full amount claimed, as long as the amount is more
         than nominal; before the court refuses to order security on the ground that it would unfairly stifle a
         valid claim, the court must be satisfied that, in all the circumstances, it is probable that the claim
         would be stifled; and the lateness of the application for security is a circumstance which can
         properly be taken into account.

Based then, on the decision in Kropp, supra as well as the decision of Spencer J. in Ruko, supra, the test to be
applied on an application for security for costs is as follows:

         1.          Does it appear that the plaintiff company will be unable to pay the defendants‘ costs if the
                     action fails?

         2.          If so, has the plaintiff shown that it has exigible assets of sufficient value to satisfy an
                     award of costs?

         3.          Is the court satisfied that the defendants have an arguable defence to present?

         4.          Would an order for costs visit undue hardship on the plaintiff such that it would prevent
                     the plaintiff‘s case from being heard?




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(1)      Plaintiff’s Ability to Pay

In Ruko, supra the Court explained at p. 108 that the burden of proving that the plaintiff is unable or unlikely to be in
a position to pay costs, if awarded, lies on the defendant making the application. The defendant must provide a
prima facie case that the corporate plaintiff has insufficient assets to pay costs of the action.

In the case at bar, the defendants have established that the corporate plaintiff is non-profit organization. It has no
share capital and does not engage in commercial activity per se. It relies on donations for funds, a fact that is
evidenced by a letter dated June 1, 1994 by the plaintiff corporation soliciting funds to pay rent. It reads in part:
―Money is tight. Would you be able to make a one-time donation of a month‘s rent - $378? If not, would you be able
to contribute a tenth of a month‘s rent -- $37.80?‖

Based on this evidence put before the court for the defendants, the court must decide if the defendants have shown a
prima facie case that the plaintiff may be unable to pay costs.

(2)      Exigible Assets

If a defendant has shown a prima facie case that the plaintiff may be unable to pay costs, the plaintiff may avoid an
order for security by showing that it has exigible assets: Ruko, supra at p. 108. In the case at bar, the plaintiff filed
an affidavit of its director, Paul Fromm, sworn September 1, 1999. Mr. Fromm deposes that the plaintiff ―is not
impecunious, and has both an ongoing annual income sufficient to meet any order for costs that may be made
against it, and unencumbered assets situated in Ontario which are sufficient to pay costs that may be ordered by the
Court in this action.‖ Apart from this assertion by Mr. Fromm, the plaintiff has not produced evidence of any assets
or the value thereof.

(3)      Arguable Defence

The plaintiff may also avoid an order for costs if it is evident on the record before the court that the defendant has
not an arguable defence: Fat Mel‟s Restaurant Ltd. v. Canadian Northern Shield Insurance Co. (1993), 76 B.C.L.R.
(2d) 231 (C.A.). In Ruko, supra, the court discussed the merits of the defence and the requirements thereof in a
claim for security for costs. The court explained that all that is required is that a judge be satisfied that the defence
is bona fide and presents an arguable case, not that it should win in any event. Spencer J. made these comments at
p. 109:

         With respect to the merits of the defence, both plaintiff and defendants swear that their cases have
         a good chance of success. All that is required now is that I should be satisfied that the defence is
         bona fide and has an arguable case to present, not that it should win in any event. The strength or
         weakness of a defendant‘s case is a factor to be considered in ordering security, to be balanced
         with the factors of financial strength, delay, prejudice to the plaintiff and whether the plaintiff may
         be prevented by the financial burden of posting security from presenting its case at all.

In the present application, therefore, the defendants need not show that they will ultimately prevail, but merely that
they have a reasonable defence to the plaintiff‘s claim of defamation. Counsel for the defendant, Kirsten G. Mehl, in
her Affidavit sworn August 26, 1999, deposes that while a pro forma defence was filed in this action, the Statement
of Defence will be amended to plead justification, fair comment and qualified privilege. The defendants will also
plead that the plaintiff has not suffered and is incapable of suffering any loss of reputation. In support of these
pleadings, the defendants produced a newspaper article which allegedly reports on some of the activities of the
plaintiff‘s director, Mr. Fromm and the plaintiff. The defendants submit that this evidence substantiates their claim
that the plaintiff is an extremist organization which does engage in acts of hate and violence towards minority
groups. In other words, it substantiates their defence to the claim of defamation.

(4)      Hindering of a Meritorious Claim

In exercising its discretion to order security for costs, the court must consider the interests of justice between the
parties and balance those interests to try to insure that the substance of their dispute ends up properly litigated. As



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such, once a prima facie case is made out by the defendants, the court must consider whether an undue hardship
would be visited upon the plaintiff if an award for security for costs was made. In other words, would the ordering
of security for costs prevent justice from being done.

To succeed in showing that an order for security would stifle the action, the plaintiff must show that it has
insufficient assets and no means of raising money for security: Kropp, supra. In the case at bar, there is dearth
evidence as to the financial state of affairs of the plaintiff. There is also a dearth of evidence as to any access the
plaintiff may have to resources. Consequently, though it appears that the plaintiff may be unable to pay costs of the
action, it does not follow, in the absence of evidence, that such a state of affairs would result in stifling the
advancement of the plaintiff‘s claim if costs were ordered to be secured.

In sum, on an application for security for costs, once the defendants have established a prima facie case that the
plaintiff lacks exigible assets, the plaintiff is required to respond with evidence to establish either that it will be able
to pay the defendants‘ costs, that the defendants have no arguable case, or that an order for security will stifle the
action. These tests serve to balance the possible injustice of stifling the corporate plaintiff‘s claim against the
possible injustices of exposing the defendants to a law suit where they could not recover their costs if successful.

An additional factor that might guide the exercise of the court‘s discretion in ordering security for costs is the status
of the plaintiff‘s residence as a reciprocating state. In this regard, counsel for the plaintiff brought to the court‘s
attention the case of Riedel International Inc. v. British Columbia (1991), 53 B.C.L.R. (2d) 110 (B.C.S.C.). In that
case, Macdonald J. held that while residence in a reciprocating state is not a bar to an order for security of costs, it is
a factor to be considered. In the case at bar, the plaintiff is an Ontario corporation. Ontario is a reciprocating state for
the purposes of Part 2 of the Court Order Enforcement Act. The plaintiff maintains that since it is not impecunious
and since it resides in a reciprocating state, there is no basis for ordering security of costs on such facts. In other
words, the defendants, if successful, have formal steps that they can take to recover their costs.

Needless to say I have instructed myself on the law as enunciated above. In the case at bar, I find that the
defendants have established a prima facie case that the plaintiff lacks exigible assets. I also find that the plaintiff
has not established that it would be able to pay the defendants costs, that the defendants have no arguable case, or
that an order for security for costs will stifle the action. After applying that law to the facts of the case at bar, I am
satisfied that this is a case where an order for security for costs is appropriate.

Having found that an order for security for costs is appropriate, it is open to me to order any amount of security up
to the full amount claimed: Kropp, supra. However, there is authority for the proposition that there should be some
evidentiary foundation for the amount ordered to be secured. In Shiell, supra, the claim for $2,348.00 in conduct
money was not allowed because there was no evidence that the plaintiff would have been required to travel from
Scotland to attend examination of discovery before trial.

In the case at bar, counsel for the plaintiff complains about that the proposed bill of costs, prepared by the
defendants, is extremely high. He challenges the claim for the cost of travel and the cost of photocopying. In this
regard I accept the opinion of Mr. Gordon, counsel for the defendants, that this action is really an action between
two Ontario Organizations held in Victoria and that it would be very costly to bring the witnesses here for this trial
and to pay the conduct money to bring representatives of the plaintiff here for their examination for discovery. I do
agree with counsel for the plaintiff, however, that the proposed bill for photocopying seems to be a bit high.
Realizing that it is in my discretion to order an amount of security up to the full amount claimed, I order that the
amount of security for costs be $40,646.45.

Having held that this is a case where the plaintiff should pay security for costs, I order that the plaintiff shall post
security for costs by depositing with its solicitor in trust the following sums by the following dates in respect of the
defendants:

         October 31st 1999            $10,000.00
         January 15th 2000            $10,000.00
         March 15th 2000 $20,646.45



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Upon failure of the plaintiff to deposit these sums by the dates ordered to the credit of the defendants, proceedings
against the defendants will be stayed. Furthermore, unless the security ordered is deposited within two months of the
date ordered for it to be posted, under the inherent jurisdiction of this court as opposed to s. 205 of the Company Act
the action will be dismissed against the defendants.

I now turn to the application by the defendants to strike paragraphs 9 and 10 of the statement of claim.

Application to Strike Paragraphs 9 and 10 of the Statement of Claim

The defendants apply to have paragraphs 9 and 10 of the Statement of Claim struck pursuant to Rule 19(24) of the
Rules of Court on the grounds that they fail to disclose a reasonable claim, and by reason that they are unnecessary,
scandalous, frivolous and vexatious, or otherwise an abuse of process. In the alternative, the defendants apply for
further and better particulars of those paragraphs pursuant to Rule 19(11) and (16).

The relevant paragraphs of the Statement of Claim are as follows:

9.       The foregoing defamatory statements are malicious and part of an ongoing campaign of
         vilification and incitement of hatred in which the Canadian Jewish Congress is engaged in
         competition with other Jewish groups to raise funds to combat alleged anti-Semitism and to create
         fear and apprehension about free speech or political views they do not like.

10.      The foregoing comments are woven together by the Canadian Jewish Congress and Michael
         Elterman in their conspiratorial world view to create power for themselves in combatting [sic] a
         mythical enemy.

The relevant Rules read:

Rule 19 - Pleadings Generally

(11)     Where particulars necessary - Where the party pleading relies on misrepresentation, fraud, breach
         of trust, wilful default or undue influence, or where particulars may be necessary, full particulars,
         with dates and items if applicable, shall be stated in the pleadings. If the particulars of debt,
         expenses or damages are lengthy, the party may refer to this fact and instead of pleading the
         particulars shall deliver the particulars in a separate document either before or with the pleadings.

(16)     Order for particulars - The court may order a party to deliver further and better particulars of a
         matter stated in a pleading.

         (24)        Scandalous, frivolous or vexatious matters - At any stage of a proceeding the court may
                     order to be struck out or amended the whole or any part of an endorsement, pleading,
                     petition or other document on the ground that

                     (a)     it discloses no reasonable claim or defence as the case may be

                     (b)     it is unnecessary, scandalous, frivolous or vexatious,

                     (c)     it may prejudice, embarrass or delay the fair trial or hearing or the proceeding,

                     or

                     (d)     it is otherwise an abuse of the process of the court,

         and the court may grant judgment or order the proceeding to be stayed or dismissed and may order
         the costs of the application to be paid as special costs.




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Rule 19(24)(a) - No reasonable claim disclosed

To succeed on an application under Rule 19(24)(a) it must be established that it is ―plain and obvious‖ that the
pleading discloses no reasonable cause of action: Hunt v. Carey Canada, [1990] 2 S.C.R. 959 (S.C.C.). If there is
any doubt it should be resolved in favour of permitting the pleadings to stand: McGauley v. British Columbia
(1989), 39 B.C.L.R. (2d) 223 (B.C.C.A.). The court should proceed on the assumption that all the facts pled are true:
Helman v. Brown (1966), 57 W.W.R. 608 (B.C.C.A.). The only question then is whether the facts disclose a cause of
action: Minnes v. Minnes (1962), 39 W.W.R. 112 (B.C.C.A.); McNaughton v. Baker (1988), 25 B.C.L.R. (2d) 17
(C.A.). In other words, as long as the pleadings disclose a triable issue, either as it exists, or as it may be amended,
then the issue should go to trial. The mere fact that the case is weak or not likely to succeed is no ground for striking
it out under the provisions of Rule 19(24): Minnes, supra.

In the case at bar, it is admittedly difficult to discern what the allegations of fact in the impugned paragraphs of the
Statement of Claim are directed towards. The paragraphs do not set out in a clear manner, the averments of unlawful
conduct to which the defendants are expected to answer. Consequently, the defendants contend that paragraphs 9
and 10 should be struck for want of a reasonable cause of action. Notwithstanding the lack of clarity of the
impugned paragraphs, the plaintiff, submits that paragraphs 9 and 10 are allegations of malice and conspiracy
respectively.

Malice

In assessing a claim under Rule 19(24)(a), the court must determine, if the facts as alleged, if proved, would be
sufficient to make out malice. In the law of defamation, malice may be shown if it is proven that the defendant used
the occasion at issue for some wrong or improper purpose or indirect motive: Raymond E. Brown, ed., The Law of
Defamation in Canada, 2d ed. (Scarborough, Ont.: Carswell, 1994). An improper purpose or indirect motive
includes, amongst other things, engaging in a course of action for one‘s own benefit or advantage, or for the purpose
of harassing or intimidating the plaintiff. The plaintiff contends that it has met the requirements in paragraph 9. The
plaintiff submits that the defendants made the alleged defamatory statements for the improper purpose of
perpetuating ―an ongoing campaign of vilification and incitement of hatred in which the Canadian Jewish Congress
is engaged in competition with other Jewish groups to raise funds to combat alleged anti-Semitism and to create fear
and apprehension about free speech or political views they do not like.‖

Though this alleged improper purpose may be seemingly difficult to prove, an application under Rule 19(24) does
not afford an appropriate forum in which to engage in a detailed examination of the strengths and weaknesses of the
plaintiff‘s case. The sole question is whether, assuming that all the facts the plaintiff alleges are true, the plaintiff
can present a question fit to be tried. Accordingly, the court must decide if the ―improper purpose‖ as alleged by the
plaintiffs, if proved, could establish malice. The court may only strike a pleading pursuant to Rule 19(24)(a) if it is
―plain and obvious‖ that the pleading does not disclose a reasonable claim of malice. In other words, if the
―improper purpose‖ alleged by the plaintiff is potentially able to serve as the basis for a claim of malice, it should
not be struck.

In the case at bar, I find that the ―improper purpose‖ as alleged by the plaintiffs, if proved, could establish malice,
consequently, I am not prepared to strike paragraph 9 of the statement of claim.

Conspiracy

The plaintiff submits that paragraph 10 of the Statement of Claim is simply an allegation of conspiracy between the
defendants in the commission of the tort of defamation. A reading of the impugned paragraph might suggest
otherwise. The references to the defendants‘ ―conspiratorial world view‖ and struggles in ―combatting [sic] a
mythical enemy‖ are suspiciously anti-Semitic in themselves. It would seem that the plaintiff is alleging, not that
the defendants conspired between themselves, but that the defendants view the ―mythical enemy‖ as conspiring
against them. Clearly, this is not a proper averment of unlawful conduct by the defendants.




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If paragraph 10 is indeed intended as an allegation of conspiracy between the defendants, it must be properly
pleaded and the material facts upon which the averment is founded must be set out. In my view, neither has been
done.

To establish the tort of conspiracy the plaintiff must plead: (1) an agreement, in the sense of a joint plan or common
intention on the part of the defendants to do the act which is the object of the alleged conspiracy; (2) an overt act or
acts consequent upon the agreement; (3) resulting damage to the plaintiff. L.D. Rainaldi, ed. Remedies in Tort
(Scarborough, Ont.: Carswell, 1987). Where the acts relied on are in themselves unlawful it is sufficient to show
that the defendants‘ conduct was directed toward the plaintiff and that the defendants should have known that the
injury to the plaintiff would result: Hunt v. Carey, supra. The essence of the tort of conspiracy is the concerted
action. Sufficient facts must be set out in the Statement of Claim, so that, if proved, they establish an agreement or
combination between the defendants.

In the case at bar, no reference is made in the Statement of Claim to an agreement between the defendants to defame
the plaintiff, or that the defendants knew of any such agreement, or that they intended to be party thereto. In
paragraph 5 of the Statement of Claim it is simply alleged that:

         5.          The defendants, and each of them, in the first half of the year 1998 caused a brochure to
                     issue over its name, and with its imprimatur entitled ―CANADIAN JEWISH
                     CONGRESS PACIFIC REGION Issues of Concern to the Jewish Community of British
                     Columbia 1995-1998‖.

Moreover, the defendant Canadian Jewish Congress (―CJC‖) is a body corporate under the laws of Canada. The
defendant Michael Elterman (―Elterman‖) is the authorized spokesperson of the CJC. As the authorized
spokesperson, Elterman is an agent of the CJC. A corporate entity can only act by its officers, employees, or
agents. Consequently, if Elterman was acting within the scope of his position as agent, and therefore CJC‘s alter
ego, the claim of conspiracy must fail because CJC cannot conspire with itself: D.C. Thomson & Co. Ltd. v. Deakin
et al., [1952] 2 All E.R. 361 at 370 (C.A.); Kuhn v. American Credit Indemnity Co., [1992] B.C.J. No. 953 (Q.L.)
(B.C.S.C.). There is no indication in the Statement of Claim that Elterman was working outside his capacity as agent
for CJC when the alleged defamatory statements were made.

I find that the facts as alleged do not establish a common plan between CJC and Elterman, and that Elterman was
acting outside of his capacity as agent for the corporate defendant. Consequently, I find that the facts set out in the
Statement of Claim do not establish the agreement or combination between the defendants that is required to make
out the tort of conspiracy. I therefore order that paragraph 10 be struck or amended. Even if I am wrong, I agree
with counsel for the defendants that paragraph 10 is unnecessary, embarrassing and scandalous in that irrelevant
imputations against the character of the defendants are raised directly and by innuendo

Rule 19(24)(b) and (c) - Frivolous and Embarrassing

To succeed on an application under Rule 19(24)(b) or (c) it must be established that it is ―plain and obvious‖ that the
pleading offends either or both provisions.

The authorities provide little guidance as to what constitutes pleadings that are ―unnecessary‖, ―scandalous‖,
―frivolous‖ or ―embarrassing‖. However some principles do emerge.

Irrelevancy and embarrassment are both established when pleadings are so confusing that it is difficult to understand
what is being pleaded: Gittings v. Caneco Audio-Publishers Inc. (1987), 17 B.C.L.R. (2d) 38 (B.C.S.C.). An
―embarrassing‖ and ―scandalous‖ pleading is one that is so irrelevant that it will involve the parties in useless
expense and will prejudice the trial of the action by involving them in a dispute apart from the issues: Keddie v.
Dumas Hotels Ltd. (1985), 62 B.C.L.R. 145 at 147 (B.C.C.A.). An allegation which is scandalous will not be struck
if it is relevant to the proceedings. It will only be struck if irrelevant as well as scandalous: College of Dental
Surgeons of B.C. v. Cleland (1968), 66 W.W.R. 499 (B.C.C.A.). A pleading is ―unnecessary‖ or ―vexatious‖ if it
does not go to establishing the plaintiff‘s cause of action or does not advance any claim known in law: Strauts v.
Harrigan, [1992] B.C.J. No. 86 (Q.L.) (B.C.S.C.). A pleading that is superfluous will not be struck out if it is not



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necessarily unnecessary or otherwise objectionable: Lutz v. Canadian Puget Sound Lumber and Timber Co. (1920),
28 B.C.R 39 (C.A.). A pleading is ―frivolous‖ if it is obviously unsustainable, not in the sense that it lacks an
evidentiary basis, but because of the doctrine of estoppel: Chrisgian v. B.C. Rail Ltd. et al., [1992] B.C.J. No. 1567,
(6 July 1992), Prince George Registry 20714 (B.C.S.C.).

In the case at bar, the defendants contend that paragraphs 9 and 10 of the Statement of Claim are unnecessary,
scandalous and vexatious and that they will prejudice, embarrass and delay the fair trial of this proceeding. There
can be no doubt that both paragraphs are ―scandalous‖ in their offensive imputations against the character of the
defendants. However, an allegation that is scandalous will not be struck, even if written maliciously or mala fides, if
it is relevant to the proceedings. The question before this court then, is do the impugned pleadings constitute
allegations of fact relevant to and necessary for the purpose of furthering the plaintiff‘s cause of action?

Does Paragraph 9 of the Statement of Claim to Towards Establishing the Plaintiff‘s Claim of Malice?

The plaintiff contends that paragraph 9 pleads malice. Such a plea is necessary to defeat a defence of qualified
privilege or a defence of fair comment. As mentioned above, malice includes not only the usual definition of that
word denoting ill will or spite; it also includes any improper purpose or indirect motive on the part of the
defendants. The plaintiff maintains that paragraph 9 is an allegation of an improper purpose or indirect
motive. Though not necessarily clear on its face, the plaintiff maintains that paragraph 9 is an allegation that the
defendants maliciously committed the tort of defamation for the improper purpose of furthering ―an ongoing
campaign of vilification and incitement of hatred in which the Canadian Jewish Congress is engaged in competition
with other Jewish groups to raise funds to combat alleged anti-Semitism and to create fear and apprehension about
free speech or political views they do not like.‖

Regardless of how outrageous or unfounded this allegation may appear, if the court finds that it goes to proving the
plaintiff‘s case, then it should not be struck. That is because, on a motion to strike out a pleading under Rule 19(24),
the court proceeds on the assumption that all facts plead are true: Helman v. Brown, supra. The mere fact that the
case is weak or not likely to succeed is no ground for striking it out under the provisions of Rule 19(24): Minnes v.
Minnes, supra. Therefore, if the perpetuation of a ―campaign of vilification and incitement of hatred ..........‖ goes to
establishing the plaintiff‘s claim of malice, then it appears that it is not unnecessary. Consequently, no matter how
scandalous it is, it should not be struck by the court. The pleading should only be struck if it is ―plain and obvious‖
that it is unnecessary or that it was pled only to distract the parties and involve them in a dispute apart from the
issues at hand.

In the case at bar, I am unable to find that it is ―plain and obvious‖ that paragraph 9 is unnecessary or that it was
pled only to distract the parties and involve them in a dispute apart from the issues at hand. Consequently, I am
unable to strike paragraph 9 of the statement of Claim on this ground. I am satisfied that it goes to proving the
plaintiff‘s case.

Rule 19(24)(d) abuse of process

The ambit of abuse of process is very broad. Abuse of process may be found where proceedings involve a deception
of the court or constitute a mere sham; where process of the court is not being fairly or honestly used, or is employed
for some ulterior or improper purpose; proceedings which are without foundation or serve no useful purpose:
Babavic v. Babowech, [1993] B.C.J. No. 1802, (3 September 1993) Vancouver Registry C931968 (B.C.S.C.). In the
case at bar, I am unable to find that the plaintiff‘s pleadings in paragraphs 9 and 10 of the Statement of Claim are
vexatious and without merit, brought with the sole motive and intent to harass the defendants and to interfere with
their ability to defend the action.

…

Conclusions

To conclude, I order that the amount of security for costs be $40,646.45.




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                                                                                                  WEEK 5: CFAR

Having held that this is a case where the plaintiff should pay security for costs, I order that the plaintiff shall post
security for costs by depositing with its solicitor in trust the following sums by the following dates in respect of the
defendants:

         October 31st 1999          $10,000.00
         January 15th 2000          $10,000.00
         March 15th 2000 $20,646.45

Upon failure of the plaintiff to deposit these sums by the dates ordered to the credit of the defendants, proceedings
against the defendants will be stayed. Furthermore, unless the security ordered is deposited within two months of the
date ordered for it to be posted, under the inherent jurisdiction of this court, as opposed to s. 205 of the Company
Act, this action will be dismissed against the defendants.

There will also be an order that paragraph 10 of the plaintiff‘s statement of claim be struck out pursuant to Rule
19(24) of the Rules of Court and that the plaintiff pay to the defendants costs of this application.




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                                                                                  WEEK 5: GWL (Particulars)


                                              G.W.L. Properties Ltd. v. W.R. Grace
                                            & Co. of Canada (1993 BCSC): (Particulars)

Date of Release: May 12, 1993

         The plaintiffs and a related company named as a third party apply for particulars of the defences filed by
W.R. Grace & Co. of Canada Ltd. and W.R. Grace & Co. -- Conn. (―Grace‖). The plaintiffs say, that with discovery
now substantially concluded, they require a more complete statement of the facts that are material to the defences
raised in order to properly prepare for trial. Grace says the demand for particulars that has been made seeks only
evidence and the disclosure of the mode by which the material facts pleaded are to be proven. The application is
made in the context of complex commercial litigation. The issue is not uncommon: The General Electric Company
Limited v. Simplex-G.E. Limited et al, [1971] R.P.C. 351 at 353 (Ch. Div.):

          The issue between the parties is the familiar one of whether these particulars should be regarded as material
facts or as evidence, and the line between the two is notoriously difficult to draw.

         This is a products liability case. The plaintiffs are the present owners of three office towers. Two were built
in the l960‘s; the third in the mid-l970‘s. The owners allege Grace was negligent in manufacturing or supplying an
insulation product that was installed in the buildings when they were constructed. They say Grace knew, or ought to
have known, the product was dangerous to human health because it contains asbestos. The owners claim to have
suffered damages in the result amounting to many millions of dollars. Grace denies the negligence alleged and raises
various defences in the alternative. The action is set to be tried in about four months time.

The Law

         The disposition of this application is governed by Rule 19:

(1)      A pleading shall be as brief as the nature of the case will permit and must contain a statement in
         summary form of the material facts on which the party relies, but not the evidence by which the
         facts are to be proved.

(11)     Where .......... particulars may be necessary, full particulars, with dates and items if applicable,
         shall be stated in the pleading …

(11.1)   Particulars need only be pleaded to the extent that they are known at the date of pleading, but
         further particulars may be delivered after they become known, and shall be delivered within 10
         days of a demand being made in writing.

(16)     The court may order a party to deliver further and better particulars of a matter stated in a
         pleading.

         An order for the delivery of particulars of facts material to a cause of action, or a defence, in addition to
those already pleaded, is primarily one of discretion to be exercised in a judicial manner: Cominco Ltd. v.
Westinghouse Can. Ltd. et al. (1978), 6 B.C.L.R. 25 at 29 (S.C.). The guide to the exercise of discretion is found in
the words of the Rule, i.e., ―where particulars may be necessary‖ and the power in the court to order delivery of
particulars is, accordingly, stated in broad terms: Big Bay Timber v. Arkinstall Logging Co. Ltd. (1978), 7 B.C.L.R.
69 at 70 (C.A.). What particulars are to be stated must depend upon the facts of each case: Philipps v. Philipps
(1878), 4 Q.B.D. 127 at 139 quoted in Anglo-Can. Timber Products Ltd. v. B.C. Elec. Co. (1960), 31 W.W.R. 604 at
610 (B.C.C.A.).

       The function of particulars is six fold: Cansulex Limited v. Perry (March 18, 1982), Vancouver Registry
No. C785837 at pp. 10-11 (C.A.):




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(1)      to inform the other side of the nature of the case they have to meet as distinguished from the mode
         in which that case is to be proved;

(2)      to prevent the other side from being taken by surprise at the trial;

(3)      to enable the other side to know what evidence they ought to be prepared with and to prepare for
         trial;

(4)      to limit the generality of the pleadings;

(5)      to limit and decide the issues to be tried, and as to which discovery is required; and

(6)      to tie the hands of the party so that he cannot without leave go into any matters not included.

         The scope of particulars that may be demanded lies in the answer to the question whether what is sought is
intended to, and does, delineate the issues between the parties, or does no more than disclose the way in which the
case will be proven: Cansulex at pp. 8-9.

         Discovery is not a substitute for particulars. The contention that what is demanded can be obtained, or that
it has been obtained, on discovery is no reason to refuse particulars properly sought. Further, the fact that what is
sought in a demand for particulars is best known to the party demanding is no reason to refuse. A party is entitled to
know what case is made against it when (whether before or after discovery) the other side is in a position to give
particulars of the facts it will prove at trial: Cominco at pp. 28-29.

          Counsel referred me to several authorities where particulars were sought in different kinds of cases. In
considering the owners‘ demand that is the subject of this application, I have found the disposition in Cominco of
assistance because it was a products liability case. The contention there was that a cable made by the defendant
manufactures had caused a fire in the plaintiffs‘ plant. The plaintiffs pleaded a case in both negligence and contract.
They alleged, broadly, that the manufacturers were informed of the purpose for which the cable was to be used, that
it had been sold to the plaintiffs as a type of cable purporting to have fire retardant qualities, and it had previously
failed to act as a fire retardant in similar installations to that of the plaintiffs‘ plant. Particulars were ordered to be
given to one of the manufacturers who applied, some to be delivered before and some after discovery. The order was
comprehensive but by way of example: the plaintiffs were required to give particulars of how the intended use of the
cable was made known to the defendant, the persons involved, the dates, and the manner of communication; they
were required to particularize in what way the cable purported to have a fire retardant quality, what persons said so,
and to whom, on what dates; they had to identify the similar installations where the cable was installed stating what
were the similarities with the plaintiff‘s installation and in which installations, and on what dates, had there been
fires where the cable failed to act as a fire retardant.

          In Cominco the plaintiff did not resist giving particulars on the ground that the demand sought only the
disclosure of evidence as Grace argues here. The question was one of when the particulars were to be delivered:
before or after discovery. But I consider the case illustrative of a practical approach to delineating the issues to be
tried in a complex products liability case where the pleadings are broad and the need to avoid surprise requires that
the court‘s discretion be exercised in favour of the party seeking to tie the hands of its adversary. In Cansulex the
Court of Appeal said at p. 11:

        The length of trials, and what seems to be the increasing length of trials, must be a matter of concern and
anything that can be done to bring the real issues between the parties fairly forward without surprise for careful
consideration must be encouraged.

         The trial of this action is presently expected to require six months. A similar case that Grace is defending in
this court commenced in January 1992 and has not been concluded yet. In my view, the expected length of the trial
must be a consideration in the exercise of discretion in the disposition of this application.




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                                                                                  WEEK 5: GWL (Particulars)

The Owners’ Demand

        I turn, then, to consider what particulars are necessary and ought to be given in respect of the facts pleaded
by Grace in the context of this case.

         During the course of argument, Grace conceded the owners were entitled to some of the particulars sought.
The nature of the specific defence pleaded and the particulars sought, that Grace has argued it should not have to
give, can be stated in summary form.

         Grace pleads that, at times which are material, the owners or their predecessor companies, that designed
and constructed the buildings, and the Workers‘ Compensation Board that allowed the insulation to be used, knew,
or ought to have known, that the product installed contained asbestos, asbestos could be hazardous to human health
in certain circumstances, and asbestos-free products were available. It is pleaded they knew, or ought to have
known, because:

(1)      Advice: They were advised accordingly by salesmen and other employees of companies that are
         now part of the Grace group of companies and by salesmen and employees of other entities.

        The owners seek particulars of the names of the persons who gave and who received the advice, by whom
they were employed, when and where the advice was given, and the nature of the advice.

(2)      Publications: There was advertising and promotional material circulated by companies that are
         now part of the Grace group and by others.

         The owners seek particulars of the titles of the material, the times and places of publication and circulation,
the persons who published and circulated the material, and the subject matter of each publication.

(3)      Publicity: There was, at all material times, wide publicity about the possible effects in certain
         circumstances of asbestos fibre on human health. There was publicity of a controversy with
         respect to one building constructed in Vancouver in 1971 concerning the possible health effects of
         using an asbestos-containing product. There was publicity about using asbestos- free products
         manufactured by Grace in other projects.

       The owners seek particulars of the nature of the publicity, the method of dissemination, the possible effects
on human health, and the circumstances under which asbestos fibres could have an effect.

         They seek particulars of the nature of the controversy in 1971 and of the publicity including any
publications about the incident. They have demanded particulars sufficient to identify the projects where asbestos-
free products were used and the nature of the associated publicity.

(4)      Common Knowledge: Concerns about the possible effects in certain circumstances of asbestos
         fibres on human health were a matter of common knowledge at all material times.

        The owners seek particulars of the nature of the knowledge, the character of the effects, and the
circumstances.

(5)      Workers‘ Compensation Board: The WCB conducted inspections and testing at construction sites
         where the product containing asbestos was being applied and found the levels of air-borne
         asbestos to be within the applicable standards. It supervised the application of an asbestos-free
         product in one instance. It organized conferences, seminars, and courses as well as distributing
         publications, notices, and other information that related to the possible health effects of asbestos
         fibres.

         The owners seek particulars of the construction sites where the inspection and testing was done, the dates,
the persons involved, the nature of the tests and inspections, the results, and the applicable standards. They seek



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particulars of the WCB‘s supervision of an asbestos-free product: the Board‘s involvement, the persons involved,
the dates, the amount of product applied and where it was applied, and the name of the applicator.

          The owners also seek particulars of when and where the conferences, seminars, and courses were held and
the subject matter of each. They seek particulars of when and where the publications and notices were published, the
titles, and the subject matter. They seek as well some identification of the other information distributed by the WCB.

        Grace says the material fact is that the owners, their predecessors, or the WCB, had, or ought to have had,
knowledge of the nature of the insulation product and the availability of other products. Grace has pleaded the
means of knowledge and is not required to plead more: the means need not be particularized. To do so, Grace says,
would be to plead evidence or the mode by which the material fact is to be proven. Pleadings are to be a brief
summary of material facts; the evidence in support is to be ascertained by discovery.

         I do not accept the distinction Grace would drawn. It appears to me that what the owners seek are, in large
measure, facts that are material to the defence that Grace raises. The owners seek a statement of the facts that Grace
must prove if the defence is to succeed. They do not seek the evidence by which the facts will be proven. For
example, the owners are faced with a broad allegation that they knew the nature of the insulation and the existence
of alternatives because they, or their predecessor companies, were given advice to that effect some time during the
last 30 years or more. They seek the facts Grace must prove: what the advice was and when and by whom the advice
was given, and, for that matter, by whom it was received. They do not seek the evidence by which those facts will be
proven: the testimony to be given by the persons who gave the advice or the persons who received it or other
persons who may have heard the advice being given, i.e., the mode of proof. It may of course be that the mode of
proof will, in any given instance, be obvious from the particulars given, but that is not a reason for refusing
particulars as long as what is sought are facts that are intended, and will serve, to delineate the issues.

Conclusion

          I consider that many of the facts sought are necessary to inform the owners of the case they have to meet
and to enable them to properly prepare for trial. They need to tie Grace‘s hands: they need a statement of specifically
what Grace will prove was the means whereby the alleged knowledge was or ought to have been acquired.
Discretion should be exercised in favour of requiring Grace to provide the owners with a statement of facts that
makes clear what advice, publications, publicity, and common knowledge it is that are material and that Grace will
prove to establish its defence. In this case it is imperative that efforts be made to ensure the issues to be tried are
focused and the element of surprise minimized. It is time for Grace to particularize the facts material to establishing
the owners‘ knowledge of the product and the alternatives available with which the parties and the court will be
concerned at the trial. In my view, the need for particulars in this regard will be met by Grace stating the following
facts to the extent that such are to be proven at trial:

         (a)         the specific advice that was given, the dates, the persons involved and in what capacity they were
                     employed;

         (b)         the titles, the source, and the dates of the published material;

         (c)         the possible effects on human health and the certain circumstances that were the subject of the
                     publicity and the common knowledge that existed at all material times; and

         (d)         the projects that were the source of publicity concerning the use of asbestos-free products and the
                     content of the publicity associated with each.

         (e)         By the same token the owners are also entitled to a statement of the following:

         (f)         when and where the WCB inspections and testing were undertaken when Grace‘s product
                     containing asbestos was being applied; and




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         (g)         when and where the WCB conferences, seminars, and courses were organized and what and when
                     publications, notices, and other materials were distributed which included discussion of the
                     possible health effects of asbestos fibres.

         The owners seek additional particulars to which no argument was addressed. Their demand concerns
pleadings about the advice given by Grace to the owners immediately before this action was commenced, the
somewhat vague description employed by Grace in their pleadings of companies related to the owners, unnamed
Canadian government authorities Grace alleges allowed the installation of their product in the buildings, and
unnecessary expenses Grace alleges the owners have incurred in the abatement of the insulation. It appears to me
that the disposition I have made may render argument on these aspects of the application unnecessary. If not, the
parties will be at liberty to speak to the matter further.

Disposition

         There will accordingly be an order that Grace give particulars of their defence as described in (a) through
(f) above together with those particulars they conceded should be given. Grace will be required to give the
particulars by May 31, 1993.

Costs in the cause.

Lowry, J.




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                                                                                                    WEEK 5: Joly


                                                                   Joly v. Pelletier

Ontario Superior Court of Justice
May 16, 1999

1.        EPSTEIN J. (endorsement): - This endorsement relates to a series of motions brought on behalf of a
number of the defendants in two related actions commenced in this Court by the plaintiff, Rene Joly. The moving
parties seek orders striking out the Statements of Claim and thereby dismissing the actions on the grounds that the
pleadings disclose no cause of action (rule 21.01(3)(b)) or are frivolous or vexatious or an abuse of the process of
the Court (rule 25.11).

2.        Mr. Joly‘s claims in these two actions, and in several others not currently before me, all centre on his firm
assertion that he is not a human being; rather a martian. As I understand them, the nature of his complaints against
the numerous defendants who include a number of doctors, medical facilities and government agencies is that they
have conspired with the American government in its attempts to eliminate him and have otherwise taken various
steps to interfere with his ability to establish himself and live freely as a martian.

3.      As indicated, there are two actions before me. At the beginning of the hearing Mr. Joly advised me that he
has recently commenced a third action against, among others, the Central Intelligence Agency, President Clinton
and the Honourable Anne McClellan for interfering with his D.N.A. test results that prove that he is, in fact, not
human.

4.       Given the related issues in the three actions brought in this Court, I ordered that the three proceedings be
consolidated. All parties consented to this order. An order will issue to this effect. Unfortunately, I failed to note
the action number of the third action affected by this order.

5.        As another preliminary matter, I should indicate that given the unusual nature of the plaintiff‘s claims, a
discussion took place at the beginning of argument as to whether I should order that a hearing be conducted pursuant
to the provisions of rule 7 of the Rules of Civil procedure for a determination as to whether the plaintiff was in a
position properly to represent his interests on the motions or whether a litigation guardian should be appointed. As a
result of this issue having been raised, I arranged for a reporter to record the proceedings and the plaintiff agreed to
testify under oath and answer certain questions posed by Mr. Novak, counsel who appeared on behalf of a number of
the defendants. At the conclusion of this form of hearing and having considered the submissions made, I determined
that there was no reason to delay the argument of the motions. I made the observation that in every respect Mr. Joly
properly conducted himself before the Court. He presented himself as polite, articulate, intelligent and appeared to
understand completely the issues before the Court and the consequences should I grant the relief sought. There was
nothing before me, other than the uniqueness of the pleadings in question, for me, on my own volition, to adjourn,
pending a hearing to determine if Mr. Joly is under some form of disability. This observation, the fact that no one
was really urging me to adjourn and the costs to all concerned of having these proceedings protracted, factored into
my decision to proceed.

6.     Finally, I add that at the request of the parties, leave was granted to adduce evidence at the hearing. Both
Mr. Novak and Mr. Joly presented evidence to the Court in support of their submissions.

7.       The crux of the various arguments advanced orally and in the written material is that Mr. Joly‘s claims
disclose no cause of action and are otherwise frivolous, vexatious and an abuse of the process of the Court. It was
also argued that the tort of conspiracy was not properly pleaded and that no damages have been identified or
claimed. It was further pointed out that several of the defendants are not legal entities and are not capable of being
sued.

8.       Mr. Joly, in a well prepared, thoughtful argument submitted that he had evidence of falsification of records
and related wrongdoing. On the pivotal point of Mr. Joly‘s being in fact a martian Mr. Joly advised me that the only
reason he was not now able to satisfy the Court that he is a martian, not a human, is due to the falsification of his
D.N.A. test results by the Americans.



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9.       The authorities relied upon by the moving parties are well known. On a motion to strike out a pleading, the
Court must accept the facts as alleged in the Statement of Claim as proven unless they are patently ridiculous and
incapable of proof and must read the Statement of Claim generously with allowance for inadequacies due to drafting
deficiencies. See Nash v. The Queen in Right of Ontario (1995), 27 O.R. (3d) 1 (C.A.). Perhaps the leading case is
that of Carey Canada Inc. v. Hunt et al. (1990) 74 D.L.R. (4th) 321 (S.C.C) in which the test in Canada is described
as assuming that the facts as stated in the Statement of Claim can be proved, the Court must be satisfied that it is
―plain and obvious‖ that the plaintiff‘s statement of claim discloses no reasonable cause of action.

10.      Concerning rule 25.11, the Court will dismiss or stay an action as being frivolous, vexatious or abusive
only in the clearest cases where it is plain and obvious the case cannot succeed. The decision in Steiner v. Canada
[1996] F.C.J. No. 1356 (Fed. T.D.) makes it clear that if a pleading does not present a rational argument, either on
the evidence or in law, in support of the claim, and casts unreasonable aspersions is frivolous.

11.      In my opinion there are at lease two reasons why the two Statements of Claim in question ought to be
struck and the actions dismissed.

         1.          Neither pleading discloses a cause of action. While conspiracy to do harm to someone is
                     the basis of many actions in this Court there is a fundamental flaw in the position of
                     Mr. Joly. Rule 1.03 defines plaintiff as ―a person who commences an action‖. The New
                     Shorter Oxford English Dictionary defines person as ―an individual human
                     being‖. Section 29 of the Interpretation Act provides that a person includes a
                     corporation. It follows that if the plaintiff is not a person in that he is neither a human
                     being nor a corporation, he cannot be a plaintiff as contemplated by the Rules of Civil
                     Procedure. The entire basis of Mr. Joly‘s actions is that he is a martian, not a human
                     being. There is certainly no suggestion that he is a corporation. I conclude therefore, that
                     Mr. Joly, on his pleading as drafted, has no status before the Court.

         2.          In respect to the motions brought under rule 25.11 I am of the view that the test has been
                     passed in the circumstances of this case. In other words, I am satisfied that the claims are
                     frivolous and vexatious and constitute an abuse of the process of this Court. In addition
                     to the fact that the tort of conspiracy has not been remotely properly pleaded, no damages
                     have been claimed and many of the defendants are not even legal entities capable of
                     being sued. More importantly, with all respect to Mr. Joly and his perception of reality,
                     these actions are patently ridiculous and should not be allowed to continue as they utilize
                     scarce public resources not to mention the time and money of the numerous defendants
                     who have been forced to defend these actions.

12.      In the circumstances I have come to the conclusion that the moving parties are entitled to the relief
requested. The Statements of Claim in both actions are struck and the actions are dismissed.

13.      The defendants are entitled to their costs of the actions but it would seem to be that the defence has likely
incurred little if any costs in defending the actions. The moving parties are certainly entitled to their costs of the
motions, if demanded. If the parties require any assistance with respect to the resolution of costs, they may arrange
a conference call through the assistance of my secretary.




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                                                                                               WEEK 5: Spillane


                                            Spillane v. United Parcel Service Canada Ltd.

2006 BCSC 687
Victoria, British Columbia

[1]           The defendants apply to have the plaintiff‘s action dismissed as against all of the defendants.
Alternatively, the defendants seek a dismissal of the action as against the personal defendants, or that the plaintiff‘s
writ of summons be struck out, or that paragraphs 1 to 21 of the writ of summons be struck out in whole or in part.
Background

[2]          The plaintiff commenced an action against United Parcel Service Canada Ltd. ("UPS") and two of its
employees. He filed a writ of summons on November 14, 2005 and a statement of claim on March 3, 2006. Neither
of these documents complies in form with the Rules of Court, B.C. Reg. 221/90. The plaintiff is self-represented.
[3]          In his pleadings, the plaintiff alleges that UPS failed to deliver documents to the Michigan Supreme
Court in a timely fashion as UPS assured him it would. The documents relate to the plaintiff's appeal from a
criminal conviction.
[4]          In the "material" before this court, none of which properly comprises evidence, it appears that on
February 6, 1992, Mr. Spillane was found guilty by a jury in Michigan of two counts of sexually abusive activity
involving children. The charges apparently related to photographs Mr. Spillane took of two girls, aged 16 and 14.
When Mr. Spillane did not appear on the date set for sentencing (March 31, 1992) a bench warrant was issued. It
appears that Mr. Spillane has been living in Canada since that time.
[5]           Approximately 12 years later and in 2004 or 2005, Mr. Spillane apparently decided to appeal his
conviction to the Michigan Court of Appeal. It seems he sought to overturn his conviction so that he could go to the
U.S. in order to pursue an unnamed person for patent infringement. On May 31, 2005, the Michigan Court of
Appeal dismissed Mr. Spillane‘s appeal for being out of time and because he was appealing from an order that was
not a final order.
[6]           Mr. Spillane apparently decided to take his appeal to the next level of court. On July 25, 2005, he
attended at a Mail Boxes Etc. store in Victoria, B.C. to send his appeal documents to the Michigan Supreme Court in
Lansing, Michigan. The package was sent to arrive on July 26, 2005. It arrived on July 28, 2005. By letter dated
July 29, 2005, the Michigan Supreme Court informed Mr. Spillane that his documents would not be accepted for
filing as they were received after the time limit for filing pursuant to the Michigan Court Rules.
[7]          In the days following July 26, 2005, it appears Mr. Spillane attempted to contact Glenn Rice, the
president of UPS Canada and did not receive a reply. Mr. Spillane spoke to Bill Lutes, an employee of UPS located
in Moncton, New Brunswick, and informed him of his complaint.
[8]         On January 10, 2006, Master McCallum heard an application by Mr. Spillane pursuant to a notice of
motion filed December 21, 2005. It is difficult to discern exactly what relief the plaintiff was seeking at that
hearing. According to the notice of motion, it appears the plaintiff sought an order allowing him to examine the
defendants. A statement of claim had not been filed at that time and, accordingly, neither had a statement of
defence. Master McCallum dismissed the plaintiff‘s motion with costs to the defendants in any event of the cause.
Issues

The issues which emerge are:
         1.      What has been filed in these proceedings to date?
         2.      What is the cause of action and what is the relief sought?
         3.      Should the plaintiff‘s claim be dismissed as against any or all of the defendants?
         4.      If no, what should be struck from the pleadings?
[9]           I have analyzed the issues as follows:



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                                                                                                  WEEK 5: Spillane

1.     What has been filed in these proceedings to date?

[10]         The following is a timeline of the pleadings and other filings to date:
       November 14, 2005                 Writ of summons filed
       November 23, 2005                 Appearance filed on behalf of defendants
       December 21, 2005                 Defendants' counsel received plaintiff‘s first notice of motion (not filed;
                                         no affidavits or supporting material attached)
       January 10, 2006                  Plaintiff‘s motion dismissed by Master McCallum
       January 23, 2006                  Plaintiff‘s second notice of motion filed (no affidavits attached)
       February 15, 2006                 Defendants‘ notice of motion filed
       February 17, 2006                 Plaintiff served with defendants‘ notice of motion and supporting
                                         affidavits
       March 3, 2006                     Statement of claim filed
       March 7, 2006                     Defendants' counsel received plaintiff‘s third notice of motion and
                                         statement of claim


[11]        On the application before this court, the plaintiff did not file responding affidavits. It appears that to date
he has not filed affidavit material in support of any of his applications. In his submissions he referred to facts not in
evidence.
2.     What is the cause of action and what is the relief sought?

[12]         A statement of facts is endorsed on the writ, and also in the separate statement of claim.
[13]         The plaintiff‘s pleadings allege that:
         •        He was promised "on time" delivery of the documents.
         •        The Michigan Supreme Court did not receive the documents on the day they were to arrive.
         •        UPS "failed to deliver" his appeal to the Michigan Supreme Court.
[14]         Mr. Spillane claims for "all monetary and personal losses". These include: "the monetary value that
their calculated actions cost me"; the value of his patent, which he estimates to be $2 billion (U.S.); and "the value
of a false 20+ year jail sentence, loss of life, family, reputation etc."
[15]        Based on these allegations, it appears that Mr. Spillane‘s cause of action could be breach of contract or
negligence.
3.     Should the plaintiff’s claim be dismissed as against any or all of the defendants?

[16]        The defendants base their application for the dismissal of the plaintiff‘s claim on Rule 19(24) or Rule
18(6) of the Rules of Court.
[17]         Rule 19(24) reads:
         (24)    At any stage of a proceeding the court may order to be struck out or amended the whole or
         any part of an endorsement, pleading, petition or other document on the ground that
         (a)      it discloses no reasonable claim or defence as the case may be,
         (b)      it is unnecessary, scandalous, frivolous or vexatious,
         (c)      it may prejudice, embarrass or delay the fair trial or hearing or the proceeding, or
         (d)      it is otherwise an abuse of the process of the court,



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         and the court may grant judgment or order the proceeding to be stayed or dismissed and may order
         the costs of the application to be paid as special costs. [emphasis added]
[18]        It appears that the defendants rely on sub-paragraphs 19(24)(a) and (b).
[19]         The test for striking a claim under Rule 19(24)(a) is whether, assuming that the facts set out in the
statement of claim can be proved, it is plain and obvious that the plaintiff‘s statement of claim discloses no
reasonable cause of action: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at 979, 49 B.C.L.R. (2d) 273
("Hunt"). The test in Hunt must be applied after the claims have been carefully considered and analyzed in the
context of the applicable law: Kripps v. Touche Ross & Co. (1992), 69 B.C.L.R. (2d) 62 , 94 D.L.R. (4th) 284
(C.A.). If there is any doubt it should be resolved in favour of the plaintiff: McGauley v. British Columbia (1989),
39 B.C.L.R. (2d) 223 (C.A.). Where the pleadings disclose a "triable issue", either as they are, or as they may be
amended, they should not be struck out: Citizens for Foreign Aid Reform Inc. v. Canadian Jewish Congress
(1999), 36 C.P.C. (4th) 266, [1999] B.C.J. No. 2160 (S.C.) (QL) at para. 34; Minnes v. Minnes (1962), 34 D.L.R.
(2d) 497, 39 W.W.R. 112 at 122 (B.C.C.A.).
[20]      In Strata Plan LMS 1328 v. Surrey (City) (2001), 95 B.C.L.R. (3d) 315, 2001 BCCA 693, the British
Columbia Court of Appeal, citing Hunt, confirmed the following guidelines to the "plain and obvious" rule at para.
5:
         (a)     whether there is a question fit to be tried regardless of complexity or novelty;
         (b)     the outcome of the claim at trial is beyond a reasonable doubt;
         (c)     serious questions of law or questions of general importance are raised or if facts should be
                  known before rights are decided;
         (d)     pleadings might be amended; and
         (e)     there is an element of abuse of process.
[21]        The test on an application under Rule 19(24)(b)(c) or (d) is the same as the test under Rule 19(24)(a) --
the applicant must show it is "plain and obvious" that the pleading offends the sub-rule in question: World Wide
Treasure Adventures Inc. v. Trivia Games Inc. (1996), 17 B.C.L.R. (3d) 187, 64 C.P.R. (3d) 485 (C.A.).
[22]       In Citizens for Foreign Aid Reform Inc. v. Canadian Jewish Congress, supra, Romilly J. set out the
following summary of principles on what constitutes unnecessary, scandalous, frivolous or vexatious pleadings:
         Irrelevancy and embarrassment are both established when pleadings are so confusing that it is
         difficult to understand what is being pleaded: Gittings v. Caneco Audio-Publishers Inc. (1987),
         17 B.C.L.R. (2d) 38 (B.C.S.C.). An "embarrassing" and "scandalous" pleading is one that is so
         irrelevant that it will involve the parties in useless expense and will prejudice the trial of the action
         by involving them in a dispute apart from the issues: Keddie v. Dumas Hotels Ltd. (1985), 62
         B.C.L.R. 145 at 147 (B.C.C.A.). An allegation which is scandalous will not be struck if it is
         relevant to the proceedings. It will only be struck if irrelevant as well as scandalous: College of
         Dental Surgeons of B.C. v. Cleland (1968), 66 W.W.R. 499 (B.C.C.A.). A pleading is
         "unnecessary" or "vexatious" if it does not go to establishing the plaintiff‘s cause of action or does
         not advance any claim known in law: Strauts v. Harrigan, [1992] B.C.J. No. 86 (Q.L.)
         (B.C.S.C.). A pleading that is superfluous will not be struck out if it is not necessarily
         unnecessary or otherwise objectionable: Lutz v. Canadian Puget Sound Lumber and Timber Co.
         (1920), 28 B.C.R. 39 (C.A.). A pleading is "frivolous" if it is obviously unsustainable, not in the
         sense that it lacks an evidentiary basis, but because of the doctrine of estoppel: Chrisgian v. B.C.
         Rail Ltd. et al., [1992] B.C.J. No. 1567, (6 July 1992), Prince George Registry 20714 (B.C.S.C.).
[23]        The defendants also rely on Rule 18(6). That rule states:
         In an action in which an appearance has been entered, the defendant may, on the ground there is
         no merit in the whole or part of the claim, apply to the court for judgment on an affidavit setting
         out the facts verifying the defendant's contention that there is no merit in the whole or part of the
         claim and stating that the deponent knows of no facts which would substantiate the whole or part
         of the claim.




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[24]        As with Rule 19(24)(a), the test under Rule 18(6) is whether the plaintiff‘s claim is bound to fail: Serup
v. Board of School Trustees of School District No. 57 (1989), 54 B.C.L.R. (2d) 258, 57 D.L.R. (4th) 261 (C.A.). If
the material discloses a bona fide triable issue, the application will be refused.
[25]        Turning to the defendants' application under Rule 19(24), I note the plaintiff‘s pleadings are almost
completely devoid of material facts to support any claim in law. However, based on the limited amount of relevant
information, it seems the pleadings, particularly if amended, could disclose a cause of action as against the corporate
defendant, in either breach of contract or negligence.
[26]        With respect to a claim in breach of contract, the plaintiff alleges that UPS promised to deliver his
documents in time. The pleadings do not set out material facts such as the date the alleged promise was made, the
date and time the documents were sent, the date the documents were to have arrived in Michigan, or the date the
documents actually arrived. There are no facts pled as to which delivery option the plaintiff selected and the terms
of that delivery option. The pleadings do not set out the time limit in which he had to file his appeal with the
Michigan Supreme Court. However, the pleadings could be amended to include these facts.
[27]        With respect to a claim in negligence, the pleadings state that UPS "failed to deliver" the documents.
There are, however, no material facts pled to support that allegation. Notwithstanding the live issues of duty and
standard of care, causation, and the remoteness of damages claimed, it is possible that the pleadings could be
amended to include the supporting factual foundation for a negligence claim.
[28]        At this stage, I cannot conclude that it is "plain and obvious" that the plaintiff‘s claim is bound to fail as
against the corporate defendant. Although the cause of action is not clear from the pleadings, it appears there may
be a triable issue between the parties. Accordingly, the plaintiff‘s claim should not be dismissed under Rule
19(24)(a).
[29]         With respect to the personal defendants, the pleadings allege that Mr. Rice did not answer the plaintiff's
fax to him and did not provide the plaintiff with any assistance with his complaint. As for Mr. Lutes, the pleadings
allege that he failed to write a letter to the Michigan Supreme Court taking responsibility for the plaintiff's situation.
Although Mr. Lutes did in fact send a letter to the court, the plaintiff alleges that the content of that letter did not
conform to what he requested of Mr. Lutes. I am satisfied that the pleadings disclose no reasonable claim against
either of the personal defendants.
[30]         With respect to Rule 19(24)(b), the majority of the plaintiff‘s pleadings are unnecessary, scandalous or
vexatious as they do not go to establishing the plaintiff‘s cause of action. For example, in his writ of summons, the
plaintiff alleges the existence of websites listing thousands of delivery complaints against UPS. He further alleges
that this matter is "UPS‘s Watergate", he includes irrelevant information regarding his criminal conviction in the
U.S. and the alleged patent infringement in the U.S., and makes certain allegations regarding the conduct of defence
counsel. None of this information goes to establishing a cause of action. The facts regarding his criminal conviction
and the alleged infringement of his patent may relate to damages but, as currently pled, the connection is unclear.
Indeed, it would be difficult for any reasonable person reading these pleadings to understand just what is being pled
and to know what cause of action the plaintiff is pursuing.
[31]        There are, however, small portions of the pleadings that are not unnecessary, scandalous, frivolous or
vexatious. At this stage, I cannot conclude the plaintiff brings this claim for an improper motive or that it is
otherwise an abuse of process. Accordingly, the whole of the writ and statement of claim should not be struck out
pursuant to Rule 19(24)(b).
[32]        The corporate defendant has not met the test for dismissing the plaintiff's claim pursuant to Rule 19(24).
As to the personal defendants, there are no allegations in the plaintiff's pleadings that could possibly go to a claim of
breach of contract or in negligence against either of them. The pleadings disclose no triable issue between the
plaintiff and either Mr. Rice or Mr. Lutes. Amendments would not change those conclusions. I am satisfied that
plainly and obviously the plaintiff's claim against both personal defendants is bound to fail.
[33]      As to the defendants' application under Rule 18(6), the defendants filed an affidavit from the defendant
William Lutes.
[34]        The Lutes affidavit supports the striking of the plaintiff‘s claim as against William Lutes. The Lutes
affidavit does not, however, sufficiently support a finding pursuant to Rule 18(6) in favour of the corporate
defendant.




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[35]         I am satisfied that at this stage, the corporate defendant has not met the test pursuant to Rule 18(6) that
the plaintiff's claim is bound to fail.
4.     What should be struck from the pleadings?

[36]        The legal test that applies to striking the whole of a pleading also applies to striking portions of a
pleading under Rule 19(24). It must be "plain and obvious" that the pleadings offend the sub-rule in question. The
defendants rely on sub-paragraphs 19(24)(a) and (b).
[37]         Further, Rule 19(1) provides that pleadings must contain a summary of the material facts on which the
party relies, but not the evidence by which those facts are to be proved.
[38]        Obviously, for a claim in contract, the pleadings should at least disclose the contract sued upon and its
material terms: Canned Heat Marketing Inc. v. CFM International Inc., [1998] B.C.J. No. 2409 (S.C.) (QL).
[39]         In both the writ and the statement of claim, the plaintiff sets out some of the facts upon which he bases
his claim. Both documents contain a number of pleadings that are unnecessary and vexatious. As stated above, the
plaintiff‘s pleadings contain argument regarding the merit of his criminal appeal; the statement that he could not
retain legal assistance in the U.S.; the statement that this matter is UPS‘s "Watergate"; argument regarding the
alleged patent infringement; allegations regarding delivery complaints against UPS by unknown third parties (the
websites); and allegations regarding the conduct of defence counsel. These portions of the pleadings render the
pleadings difficult to understand, some are vexatious and they do not go to establishing a cause of action.
[40]        Further, and quite improperly, the plaintiff‘s pleadings contain much that is evidence.
[41]        Accordingly, certain passages of the writ of summons and statement of claim should be struck. For ease
of reference I have attached to these reasons the writ and statement of claim. I have underlined those sections in
each of the documents which I order be struck.
[42]       If the plaintiff expects to litigate, his statement of claim will need significant amendments without which
the remaining defendant will be hard pressed to know what case it must meet. In addition, without an amended
statement of claim that sets out the material facts to properly support a cause or causes of action, any further
proceedings in this matter have the potential to be a waste of court time and resources.
[43]         It is appropriate to fix the time frame in which the plaintiff must take additional steps, if any. The
plaintiff has until June 30, 2006 to file amended pleadings, failing which this action is dismissed.
[44]         With respect to costs there has been divided success. It is clear, however, that the issues raised by the
defendants in their application are the direct result of the plaintiff's approach to this litigation. In the exercise of my
discretion, therefore, I conclude that the defendants are entitled to costs of this motion in any event of the cause.
J.L. Dorgan, J.




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                                                            WEEK 5: Farmer-Paellmann

                                 Farmer-Paellmann v. FleetBoston et al.

Farmer-Paellmann v. FleetBoston,
AetnaInc., CSX



                          UNITED STATES DISTRICT COURT
                                      for the
                          EASTERN DISTRICT OF NEW YORK

         ------------------------------------------------------------------X

                                                                                CIVIL ACTION
         DEADRIA FARMER-PAELLMANN,

                     On behalf of herself
                     and all other persons                                     CLASS ACTION
                     similarly situated,


                                             PLAINTIFF
                                                                            COMPLAINT
                           vs.                                           AND JURY TRIAL
                                                                               DEMAND


         FLEETBOSTON FINANCIAL CORPORATION,
         AETNA INC., CSX, and Their predecessors, successors
         and/or assigns, and CORPORATE DOES NOS. 1-1000,

         DEFENDANTS.


         -------------------------------------------------------------------X

Plaintiffs, on behalf of themselves and all other persons similarly situated,
state, upon information and belief, as follows:




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                                                 Farmer-Paellmann v. FleetBoston, Aetna Inc., CSX    349

                       INTRODUCTION, JURISDICTION AND VENUE

                                                       Introduction

1.        Over 8,000,000 Africans and their descendants were enslaved in the United States from
1619 to 1865. The practice of slavery constituted an ―immoral and inhumane deprivation of
Africans‘ life, liberty, African citizenship rights, cultural heritage‖ and it further deprived them of
the fruits of their own labor.

2.       The first slave ship that sailed into Jamestown Harbor in Virginia in 1619 contained a
handful of captive Africans, but by the end of the Atlantic slave trade, more than two centuries
later, somewhere between 8 million and 12 million Africans had arrived in the New World in
chains.1

3. Historians estimate that one slave perished for every one who survived capture in the African
interior and made it alive to the New World, meaning as many as 12 million perished along the
way.2

4.        Although, it is a common perception that the South alone received the enslaved Africans,
many of them arrived in the Dutch colonial city of New Amsterdam that later became New York
City. Integral to the colony from the start, slaves helped build Trinity Church, the streets of the
city and the wall, from which Wall Street takes its name, that protected the colony from military
strikes.3

5.       These slaves in New York lived in attics, hallways and beneath porches, cheek to jowl
with their master and mistresses. In death, these same slaves were banished to the Negro Burial
Ground, which lay a mile outside the city limits and contained between 10,000 and 20,000 bodies
by the time it was closed in 1794.4

6.       Further research conducted by Howard University of 400 skeletons of these buried slaves
revealed that 40 percent were children under the age of 15 and the most common cause of death
was malnutrition. Most of the children had rickets, scurvy, anemia or related diseases. The adult
skeletons show that many people died of unrelenting hard labor. Strain on the muscles and
ligaments was so extreme that muscle attachments were commonly ripped away

from the skeleton taking chunks of bone with them-leaving the body in perpetual pain. The highest
mortality rate is found among women ages 15 to 20. Investigators have concluded that some died
of illnesses acquired in the holds of slave ships or from a first exposure to the cold or from the
trauma of being torn from their families and shipped in chains halfway around the globe.
Moreover, the research has concluded that these women were worked to death by owners who
could simply go out and buy a new slave.5

7.       But New Yorkers were not alone in the utilization of slaves, in fact, more recent research has
revealed that many of our esteemed and celebrated institutions of learning had their origins in the
profits derived from the slave trade. For instance, money from the slave trade financed Yale
University‘s first endowed professorship, its first endowed scholarships and its first endowed library
fund. Moreover, in the 1830‘s, Yale officials led the opposition that prevented the building of the first
African American college, on the grounds that such an institution would have been ―incompatible
with the existence of Yale‖. Nicholas and John Brown, two of the founders of what became Brown
University were slave traders. Likewise, Harvard Law School was endowed by money its founder
earned selling slaves in Antigua‘s cane fields.6

8.      Many early American industries were based on the cotton, sugar, rice, tobacco, and other
products African labor produced. Railroads and shipping companies, the banking industry and
many other businesses made huge profits from the commerce generated by the output of enslaved
labor.

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9.       Slaves built the U.S. Capitol, cast and hoisted the statue of freedom on top of its dome,
and cleared the forest between the Capitol and the White House. 7

10.      Slavery fueled the prosperity of the young nation. From 1790 to 1860 alone, the U.S.
economy reaped the benefits of as much as $40 million in unpaid labor. 8 Some estimate the
current value of this unpaid labor at 1.4 trillion dollars. 9

11.      Not only did the institution of slavery result in the extinguishment of millions of
Africans, it eviscerated whole cultures: languages, religions, mores, and customs, it
psychologically destroyed its victims. It wrenched from them their history, their memories, and
their families on a scale never previously witnessed.

12.       When the institution finally ended, the vestiges, racial inequalities and cultural psychic
scars left a disproportionate number of American slave descendants injured and heretofore without
remedy.

13.      Although the institution of slavery in the United States was officially outlawed in 1865, it
continued, de facto, until as recently as the 1950‘s. National archive records reveal that in the
1920‘s and 1930‘s, the NAACP still received letters from African-Americans claiming to still be on
plantations and forced to work without pay. Several claims were investigated and were found to be
legitimate. Moreover, as late as 1954, the Justice Department prosecuted the Dial brothers in
Sumpter County, Alabama because they held blacks in involuntary servitude. 10

14.      Even for those who were ―freed‖, their lives remained locked in quasi-servitude, due to
legal, economic and psychic restraints that effectively blocked their economic, political and social
advancement.11

15.     Hence, new measures called ―Black Codes‖ guaranteed control of Blacks by white
employers. As John Hope Franklin noted in From Slavery to Freedom:

                     the control of blacks by white employers was about as great as that which
                     slaveholders had exercised. Blacks who quit their job could be arrested and
                     imprisoned for breach of contract. They were not allowed to testify in court
                     except in cases involving members of their own race; numerous fines were
                     imposed for seditious speeches, insulting gestures or acts, absence from work,
                     violating curfews and the possession of firearms. There was of course no
                     enfranchisement of blacks and no indication that in the future they could look
                     forward to full citizenship and participation in democracy. 12

16.       The post-Reconstruction Southern practices of peonage and sharecropping which continued
well into the twentieth century were direct outgrowths of slavery that continued a system of complete
control by the dominant culture. Peonage was a complex system where a black man would be arrested
for ―vagrancy‖, ordered to pay a fine that he could not afford, and then incarcerated. A plantation
owner would then pay the fine and then hire him until he could afford to pay off the fine. The peon
was forced to work, locked up at night and if he escaped, was chased by bloodhounds until
recaptured.13

17.      Likewise, during the 1920‘s, fortunate African-Americans became sharecroppers on land
leased from whites whose grandparents had owned their forebearers. These African Americans
were not allowed to vote, and were socially and economically relegated to the leftovers in
education, earnings, and freedoms.

18.      More recently, a 1998 census report shows that 26 percent of African American people in
the United States live in poverty compared to 8 percent of whites. It also showed that 14.7 percent
of African Americans have four-year college degrees, compared with 25 percent of whites. The
same year, African American infant-mortality rates were more than twice as high as those among
whites. Federal figures also show that a Black person born in 1996 can expect to live, on average,
6.6 fewer years than a white person born the same year.

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19.       African-Americans are more likely to go to jail, to be there longer, and if their crime is
eligible, to receive the death penalty. They lag behind whites according to every social yardstick:
literacy, life expectancy, income and education. They are more likely to be murdered and less
likely to have a father at home.

20.      Defendants, including, but not limited to FLEETBOSTON FINANCIAL
CORPORATION, AETNA INC., CSX, through their predecessors-in-interest, conspired with
slave traders, with each other and other entities and institutions (whose identities are not yet
specifically identified, but which are described herein as CORPORATE DOES # 1-100) and
other un-named entities and/or financial institutions to commit and/or knowingly facilitate crimes
against humanity, and to further illicitly profit from slave labor.

21.        Plaintiffs and the plaintiff class are slave descendents whose ancestors were forced into
slavery from which the defendants unjustly profited. Plaintiffs seek an accounting, constructive
trust, restitution, disgorgement and compensatory and punitive damages arising out of Defendants‘
past and continued wrongful conduct.


JURISDICTION AND VENUE

22.      This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1332(a) since the
amount in controversy exceeds $75,000 per plaintiff exclusive of interests and costs and there is
diversity of citizenship.

23.     The Court has personal jurisdiction over the parties in that the defendants conduct
systematic and continuous business within the State of New York.

24.      Venue is proper in this Court since the Defendants do business and may be found in the
District within the meaning of 28 U.S.C. 1391(a).

25.      Plaintiffs and the plaintiff class are African-American slave descendents.

26.       Plaintiff is a New York resident whose ancestors were enslaved in the agricultural
industry.


DEFENDANTS

27.      Defendants and the other known and unknown defendants used and/or profited from
slave labor and have retained the benefits and use of those profits and products derived from that
slave labor. Defendants knew that the plaintiff class was subject to physical and mental abuse and
inhuman treatment.

28.     Defendants conspired with each other with intentions to violate Plaintiffs‘ ancestors‘
basic human rights from slavery in that and by so doing to profit from these violations.

29.       Defendant FLEETBOSTON is a Delaware corporation with its principal place of
business located at 100 Federal Street, Boston, Massachusetts 02110. It does continuous and
systematic business in New York. FLEETBOSTON is the successor in interest to Providence
Bank who was founded by Rhode Island businessman John Brown. Brown owned ships that
embarked on several slaving voyages and Brown was prosecuted in federal court for participating
in the international slave trade after it had become illegal under federal law. Upon information and
belief, Providence Bank lent substantial sums to Brown, thus financing and profiting from the
founder‘s illegal slave trading. Upon information and belief, FLEETBOSTON also collected
custom fees due from ships transporting slaves, thus, further profiting from the slave trade.

30.       Defendant CSX is a Virginia corporation with its principal place of business located at
901 E. Cary Street, Richmond, VA 23219. It is a successor-in-interest to numerous predecessor
railroad lines that were constructed or run, at least in part, by slave labor. 14
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31.       Defendant AETNA INC. (―AETNA‖) is a corporation with its principal place of
business located at 151 Farmington Avenue, Hartford, Connecticut 06156. Upon information and
belief, AETNA’s predecessor in interest, actually insured slave owners against the loss of their
human chattel. AETNA knew the horrors of slave life as is evident in a rider through which the
company declined to pay the premiums for slaves who were lynched or worked to death or who
committed suicide. Additionally, AETNA insured enslaved Africans who worked in the
agricultural industry of which Plaintiff‘s enslaved. AETNA, therefore, unjustly profited from the
institution of slavery.

32.      Defendants CORPORATE DOES NOS. 1-100 are other companies, industrial,
manufacturing, financial and other enterprises that, like the named Defendants, its/their
predecessors, affiliates and/or assigns unjustly profited from slave labor. The designation
CORPORATE DOES NOS. # 1-100 is used until such time as the specific identity of such
additional companies, as they relate to this action, is ascertained through discovery and/or other
means.


CLASS ALLEGATIONS

33.       This action is brought and may properly be maintained as a class action pursuant to the
provision of the Federal Rules of Civil Procedure 23(a), 23(b)(2) and 23(b)(3). Plaintiffs seek
certification of the following class: all African-American slave descendants.

34.       The exact number of Plaintiff class members is not known. Plaintiffs estimate that the
class includes millions of African-American slave descendants and the Plaintiffs estimate that the
class is so numerous that joinders of individual members is impracticable. The number and
identities of the class members can only be ascertained through appropriate investigation and
discovery.

35.      Questions of fact and law are common with respect to each class member. Common
questions of fact and law include:

             a. Whether Defendants knowingly, intentionally and systematically benefited from the
                use of enslaved laborers;

             b. Whether Defendants wrongly converted to their own use and for their own benefit,
                the slave labor and services of the Plaintiffs‘ forebearers, as well as, the products
                and profits from such slave labor;
             c. Whether the Defendants knew or should have known that they were assisting and
                acting as accomplices in immoral and inhuman deprivation of life and liberty;

             d. Whether Defendants have been unjustly enriched by their wrongful conduct; and

             e. Whether, as a result of this horrific and wrongful conduct by the Defendants, the
                Plaintiff class is entitled to restitution or other equitable relief, or to compensatory
                or punitive damages.

36.      The claims of the individually named Plaintiffs are typical of the claims of the Plaintiff
Class Members. Plaintiffs and all members of the Plaintiff Class have been similarly affected by
the Defendants common course of conduct and the members of each class have similar claims
against the Defendants. The claims of all class members depend on a showing of the Defendants‘
common course of conduct, as described herein, which gives Plaintiffs, individually and as class
representative, the right to the relief sought herein.

37.       There is no conflict as between Plaintiffs and the other members of the class with respect
to this action or the claims for relief. Plaintiffs know and understand their asserted rights and their
roles as class representatives.


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38.       Plaintiffs and their attorneys are able to and will fairly, and adequately, protect the
interest of the Class. Several of Plaintiffs‘ attorneys are experienced class action litigators who are
or will be able to conduct the proposed litigation. Plaintiffs‘ attorneys can vigorously prosecute the
rights of the proposed class members.

39.       Prosecution of separate actions by individual Plaintiffs will create the risk of inconsistent
and varying adjudications and will establish incompatible standards of conduct for Defendants in
that different Courts may order Defendants to provide different types of accounting or take other
inconsistent actions.

40.       Prosecutions of separate actions by individual plaintiffs of other proposed class members
not party to the adjudications will substantially impair or impede their ability to protect their
interest in that, for example, Defendants may exhaust their available funds in satisfying the claims
of earlier plaintiffs to the detriment of later plaintiffs.

41.       Defendants have acted and/or refused to act on grounds generally applicable to the
proposed class, making final injunctive relief and correspondent declaratory relief appropriate with
respect to the class as a whole in that Defendants have been unjustly enriched by participation in
acts that were known to be immoral and inhumane, and Defendants: (a) prevented and or refused
restitution to the proposed class members, (b) prevented and/or refused to disgorge wrongfully
gained and/or earned profits and benefits, or (c) refused to provide a full and complete accounting
and disclosure of the extent of their aforesaid actions.

42.      Common questions of law and fact predominate in the claims of all class members,
including the named Plaintiff. These claims depend on proving Defendants are liable for their acts
and/or omissions based, in part, on evidence of a common scheme. Plaintiffs‘ and the plaintiff
class members‘ proposed evidentiary showings would be based on the same documents and
testimony concerning the Defendants‘ actions.

43.       A class action is superior to the other available methods for the fair, just and efficient
adjudication of the controversy. Plaintiffs and the Plaintiff class members have no interest in
individually controlling the prosecution of separate actions and, instead are on the whole incapable
as practical matter of pursuing individual claims. Even if individual class members had the
resources to pursue individual litigation, it would be unduly burdensome to the Courts in which
the individual litigation would proceed. Individual litigation magnifies the delay and expenses to
all parties in that the Court system of resolving the controversies engendered by
Defendants/individual and/or common course of conduct. The class action device allows a single
court to provide the benefits of unitary adjudication, judicial economy and the fair and equitable
handling of all plaintiffs; claims in a single forum. The conduct of this action as a class action
conserves the resources of the parties and of the judicial system, and reserves the rights of each
class member. Furthermore, for most class members, a class action is the only feasible mechanism
that allows them an opportunity for legal redress and justice. A large concentration of proposed
class members is estimated to reside in this District and nearby states. The management of the
litigation as a class would pose few problems for this Court.

44.     Certification of the Plaintiff class is appropriate under Fed. R. Civ. P. 23(a) and also
under 23(b)(2), 23(b)(3).


EQUITABLE TOLLING

45.       The plaintiffs have been unable to secure records with regards to their ancestors due to
the failure of most to be able to reliably access ship manifestos, or human cargo lists that directly
connect them to their descendants. Moreover, family names were changed once the Africans
arrived in America making it nearly impossible to accurately trace records. Recent advances in
Internet and computer databases have made these records more accessible to the average African-
American.



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46.      Likewise, corporate histories and records have also been extremely difficult and
inaccessible to most people. Hence, research tracing the monetary benefit derived by American
corporations from the slave trade has only been accessible and discussed by prominent researches
within the last year.

47.      Moreover, efforts to attempt to raise the issue of reparations for African-Americans in an
attempt to secure easier access to information have stalled in Congress. Representative John
Conyers from Michigan has for the last 11 years attempted to propose a resolution, No. 40,
seeking to set aside $8 million dollars to study the effects of slavery and come up with a formula
for reparations. His resolution has died in committee for each of these past eleven years.

48.      Moreover, with the advent of litigation related to reparations for holocaust victims from
government entities and corporations, more emphasis has been placed on the viability of lawsuits
for reparations for human rights violations.

49.       Finally, the action of each of the Defendants by their failure to provide an accounting to
the plaintiff constitutes a continuing tort that tolls the statute.


COUNT I - CONSPIRACY

50.     Each of the Defendants acted individually and in concert with their industry group and
with each other, either expressly or tacitly, to participate in a plan that was designed in part to
commit the tortious acts referred to herein.

51.      For instance, each industry group was co-dependant on each other and operated as joint
enterprise, designed in part, to maintain and continue a system of inhumane servitude. The
shipping and railroad industry benefited and profited from the transportation of the slaves. The
railroad industry utilized slave labor in the construction of rail lines. These transportation
Industries were dependent upon the manufacturing and raw materials industry to utilize the slaves
they shipped. The cotton, tobacco, rice and sugar industries thrived on profits generated from their
use of slave labor, and relied upon financial and insurance industries to finance and insure the
slaves that they utilized and owned. All industries: raw market, retail, financial, insurance, and
transportation, benefited from the reduced costs of slave-produced goods.


COUNT II- DEMAND FOR AN ACCOUNTING

52.       Plaintiffs on behalf of themselves and all other descendants who are similarly situated, re-
allege as if fully set forth, each and every allegation contained into the preceding paragraphs.

53.       The Defendants knew or should have know of the existence of corporate records that
indicate their profiting from slave labor. Plaintiffs and the public have demanded that the
Defendants reveal their complete corporate records regarding same and that a just and fair
accounting be made for profits derived from the slave trade.

54.     Defendants have failed to provide said records and have failed to comply with plaintiffs‘
demand.

          WHEREFORE, Plaintiffs demand judgment: (a) requiring defendants make a full
disclosure of all of their corporate records that reveal any evidence of slave labor or their profiting
from same; (2) seeking the appointment of an independent historic commission to serve as a
depository for corporate records related to slavery and; (3) directing defendants to account to
plaintiffs for any profits they derived from slavery.




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COUNT III - HUMAN RIGHTS VIOLATIONS

57.       Plaintiffs on behalf of themselves and all other descendants who are similarly situated, re-
allege as if fully set forth, each and every allegation contained into the preceding paragraphs.

58.       The Defendants participated into the activities of the institution of slavery and in so doing
furthered the commission of crimes against humanity, crimes against peace, slavery and forced
labor, torture, rape, starvation, physical and mental abuse, summary execution. Specifically, the
defendants profited from these wrongs.

59.       Defendants knowingly benefited from a system that enslaved, tortured, starved and
exploited human beings, so as to personally benefit them. In the process, the Defendants directly
or indirectly subjected the plaintiffs‘ ancestors to inhumane treatment, physical abuse, torture,
starvation, execution and subjected the plaintiffs to the continued effects of the original acts,
including but not limited to: race discrimination, unequal opportunity, poverty, substandard health
care, substandard treatment, substandard housing, substandard education, unjust incarceration,
racial profiling, and inequitable pay.

60.      The above referenced actions by the Defendants were in violation of international law.

61.      As a result of the above referenced violations of international law, Plaintiffs and members
of the Plaintiff class have suffered injury and are entitled to compensatory damages in an amount
to be determined at trial.


COUNT IV - CONVERSION

62.      Plaintiffs on behalf of themselves and all other slave ancestors who are similarly situated,
re-allege as if fully set forth, each and every allegation contained in the preceding paragraphs.

63.       As a result of Defendants‘ failure and refusal to account for, acknowledge and return to
Plaintiffs and the members of the Plaintiff class, the value of their slave labor, Defendants have
willfully and wrongfully misappropriated and converted the value of that labor and its derivative
profits into Defendants‘ own property.

64.      Defendants have never accounted for or returned the value of Plaintiffs ancestors‘ slave
labor and the profits Defendants derived from said slave labor.

65.       As a result of Defendants‘ wrongful acts and omissions, Plaintiffs and members of the
Plaintiffs class have been injured and demand judgment against the Defendants jointly, severally
and/or in the alternative on this cause of action for, amongst other things: (a) an accounting of the
slave labor monies, profits and/or benefits derived by Defendants; (b) a constructive trust in the
value of said monies, profits and/or benefits derived by Defendants use of slave labor; (c) full
restitution in the value of all monies, profits, and/or benefits derived by Defendants‘ use of slave
labor; (d) equitable disgorgement of all said monies, profits, and/or benefits derived by
Defendants‘ exploitation of slave labor; and (e) other damages in an amount in excess of the
jurisdictional limits of this Court and to be determined at the trial herein, together with interest,
exemplary or punitive damages, attorney‘s fees and costs of this action.


COUNT V - UNJUST ENRICHMENT

66.       Plaintiffs on behalf of themselves and all other slave descendants who are similarly
situated, re-allege as if fully set forth, each and every allegation contained into the preceding
paragraphs.

67.      Defendants have improperly benefited from the immoral and inhumane institution of
Slavery in the United States.
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68.       Defendants have failed to account for and or return to Plaintiffs and the Plaintiff class the
value of their ancestors‘ slave labor and or the profits and benefits the Defendants derived
therefrom and Defendants have concealed the nature and scope of their participation in the
Institution.

69.    As a result of the Defendants‘ wrongful acts and omissions as described above,
Defendants have been unjustly enriched.

70.       Defendants have been unjustly enriched at the expense of Plaintiffs and the Plaintiffs
class. Plaintiffs and the Plaintiffs class therefore demand restitution

and judgment against the Defendants jointly, severally and/or in the alternative, in an amount in
excess of the jurisdictional limits of this Court and to be determined at the trial herein, together
with interest, exemplary or punitive damages, attorney‘s fees and the costs of this action.


PRAYER FOR RELIEF

WHEREFORE Plaintiffs and the Plaintiffs‘ class demand a jury trial and judgment and damages
against the Defendants, jointly, severally and/or in the alternative, as follows:

         (1)         For an order certifying the Plaintiff class alleged herein;
         (2)         For an accounting;
         (3)         For the appointment of an independent historic commission;
         (4)         For the imposition of a constructive trust;
         (5)         For restitution of the value of their descendants‘ slave labor;
         (6)         For restitution of the value of their unjust enrichment based upon slave labor;
         (7)         For disgorgement of illicit profits;
         (8)         For compensatory damages in an amount to be determined by trial together with
                     interest;
         (9)         For exemplary or punitive damages in an amount to be determined at trial;
         (10)        For attorneys‘ fees; and
         (11)        For the cost of this action.


         Dated: March 26, 2002
         New York, New York



By:                                                       By:

EDWARD D. FAGAN, ESQ. (EF-4125)                           ROGER S. WAREHAM, ESQ.
FAGAN & ASSOCIATES                                        (RW 4751)
                                                          JOMO SANGA THOMAS, ESQ.
                                                          (JT 7544)
                                                          301 South Livingston Avenue
                                                          Livingston, New Jersey 07039 572
                                                          (973) 994-2908

…




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                                                      Hunt v. Carey Canada (1990 SCC):
                                                             (Striking Pleadings)

Supreme Court of Canada
October 4, 1990

WILSON J.: The issue raised in these appeals is whether it is open to the respondent to proceed with an action
against the appellants for the tort of conspiracy. In particular, the appeals raise the question whether those portions
of the respondent‘s statement of claim in which he alleges that the appellants conspired to withhold information
concerning the effects of asbestos fibres disclose a reasonable claim within the meaning of R. 19(24)(a) of the
British Columbia Rules of Court.

1.       THE FACTS

         The respondent, George Hunt, is a retired electrician who alleges that he was exposed to asbestos fibres
over the course of his employment. Mr. Hunt has brought an action against Atlas Turner Inc., Asbestos Corporation
Limited, The Asbestos Institute, Babcox & Wilcox Industries Ltd., Bell Asbestos Mines Limited, Caposite
Insulations Ltd., Carey Canada Inc., Flintkote Mines Limited, Holmes Insulation Ltd., Johns-Manville Amiante
Canada Inc., Lac D‘Amiante du Québec Ltée., National Asbestos Mines Limited, The Quebec Asbestos Mining
Association and T & N plc (―the defendants‖).

         Mr. Hunt alleges that the defendants were involved in the mining of asbestos and the production and supply
of a variety of asbestos products between 1940 and 1967. He alleges that after 1934 the defendants knew that
asbestos fibres could cause disease in those exposed to the fibres. In addition to suing Atlas Turner, Babcock,
Caposite, Holmes, Johns-Manville and T & N in negligence, Mr. Hunt alleges that all of the defendants conspired to
withhold information about the dangers associated with asbestos and that as a result of that conspiracy he contracted
mesothelioma.

         The relevant portions of Mr. Hunt‘s statement of claim read as follows:

         16.         At various times, the particulars of which are well known to the defendants, including the
                     period between 1940 and 1967, the defendants mined and processed asbestos and
                     designed, manufactured, packaged, advertised, promoted, distributed and sold a variety of
                     products containing asbestos fibres (the ―Products‖), the particulars of which are also
                     well known to the defendants.

         17.         After about 1934 the defendants knew or ought to have known that the asbestos fibres
                     contained in the Products could cause diseases, including cancer and asbestosis, in those
                     who worked with or were otherwise exposed to those fibres.

         18.         After about 1934, some or all of the defendants conspired with each other with the
                     predominant purpose of injuring the plantifff [sic] and others who would be exposed to
                     the asbestos fibres in the Products, by preventing this knowledge becoming public
                     knowledge and, in particular, by preventing it reaching the plaintiff and others who
                     would be exposed to the asbestos fibres in the Products.

         19.         Alternatively, after about 1934, some or all of the defendants conspired with each other to
                     prevent by unlawful means this knowledge becoming public knowledge and, in
                     particular, to prevent it reaching the plaintiff and others who would be exposed to the
                     asbestos fibres in the Products, in circumstances where the defendants knew or ought to
                     have known that injury to the plaintiff and others who would be exposed to the asbestos
                     fibres in the Products would result from the defendants‘ acts.



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         20.         The defendants‘ acts in furtherance of the conspiracy referred to in paragraphs 18 and 19
                     include:

                     (a)       fraudulently, deceitfully or negligently suppressing, distorting and
                               misrepresenting the results of medical and scientific research on the disease-
                               causing effects of asbestos;

                     (b)       fraudulently, deceitfully or negligently misrepresenting the disease-causing
                               effects of asbestos by disseminating incorrect, incomplete, outdated, misleading
                               and distorted information about those effects;

                     (c)       fraudulently, deceitfully or negligently attempting to discredit doctors and
                               scientists who claimed that asbestos caused disease;

                     (d)       fraudulently, deceitfully or negligently marketing and promoting the Products
                               without any or adequate warning of the dangers they posed to those exposed to
                               them; and

                     (e)       fraudulently, deceitfully or negligently attempting to influence to their benefit
                               government regulation of the use of asbestos and the Products.

         Carey Canada Inc. brought an application before the Supreme Court of British Columbia under
R. 19(24)(a) of the British Columbia Rules of Court seeking to have the action against it, which was based solely on
the allegations of conspiracy, dismissed on the basis that it disclosed no reasonable claim. Rule 19(24) provides:

         (24) At any stage of a proceeding the court may order to be struck out or amended the whole or any part of
         an endorsement, pleading, petition or other document on the ground that

               (a)         it discloses no reasonable claim or defence as the case may be, or

               (b)         it is unnecessary, scandalous, frivolous or vexatious, or

               (c)         it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or

               (d)         it is otherwise an abuse of the process of the court,

         and may grant judgment or order the proceeding to be stayed or dismissed and may order the costs of the
         application to be paid as between solicitor and client.

2.       THE COURTS BELOW

(a)      Supreme Court of British Columbia

           Hollinrake J. accepted Carey Canada‘s submission that the only damage that could be the subject of a
conspiracy action was ―direct damage‖. Although counsel‘s memorandum summarizing Hollinrake J.‘s oral reasons
for judgment does not explain precisely what he understood the term ―direct damage‖ to mean, it would appear that
he meant damage suffered by a plaintiff that flows directly from acts aimed specifically at that plaintiff. Hollinrake
J. stated:

         Dealing with the issue of direct or indirect damage, in the first kind of conspiracy Estey. J. refers
         to the ―predominant purpose‖ of the defendants‘ conduct [see Can. Cement LaFarge Ltd. v. B.C.
         Lightweight Aggregate Ltd., [1983] 1 S.C.R. 452 at 471, [1983] 6 W.W.R. 385, 21 B.L.R. 254, 24
         C.C.L.T. 111, 145 D.L.R. (3d) 385, 72 C.P.R. (2d) 1, 47 N.R. 191 [B.C.]]. I think this does import
         direct damage. The second type of conspiracy refers to conduct ―directed towards the plaintiff‖. I




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         think this imports direct damage. I think these conclusions are justified by what happened in Can.
         Cement LaFarge Ltd.

Hollinrake J. therefore allowed the motion and dismissed the action against Carey Canada as disclosing no
reasonable claim.

(b)      British Columbia Court of Appeal

        By order of the British Columbia Court of Appeal (dated 30th March 1989), Flintkote Mines Limited and T
& N plc were named as respondents to the appeal in the Court of Appeal.

       Anderson J.A. (Macfarlane and Esson JJ.A. concurring) allowed the appeal [[1989] B.C.W.L.D. 1516 (sub
nom. Hunt v. T & N plc)] and set aside Hollinrake J.‘s order. Anderson J.A. explained his reasons:

               (1) The cases relied upon by counsel for the respondent Carey Canada Inc. and the learned
         trial judge to the effect that there is no such tort as a conspiracy to injure by unlawful means where
         the damage is indirect, all relate to the area of competition in the marketplace and to labour-
         management disputes. They may not be applicable to the very different circumstances alleged in
         this case and to the very different social considerations.

               (2) The arguments as to law and fact are intricate and complex and should be dealt with at
         trial after all the evidence is adduced. At this stage of the proceedings it is impossible to reach the
         conclusion that there is no cause of action in fact or law; see Minnes v Minnes (1962), 39 W.W.R.
         112 at 122, 34 D.L.R. (2d) 497 (B.C.C.A.).

         Esson J.A. (Anderson and Macfarlane JJ.A. agreeing) gave additional reasons stressing that the ―language
of predominant purpose and direct damage‖ in Can. Cement Lafarge Ltd. had arisen in cases that involved
competition and pure economic loss. In Mr. Hunt‘s case, however, the context was very different. Mr. Hunt had
suffered personal injury and claimed that by conspiring to suppress information the defendants had created a
foreseeable risk of causing him the harm which he in fact suffered. It was not possible at this stage in the
proceedings to determine that the damage was not sufficiently direct to be able to support an action rooted in the tort
of conspiracy. Esson J.A. specifically declined to embark upon a detailed consideration of the law of conspiracy,
noting:

             It has not generally been part of our tradition and, given the complexity and novelty of some
         of the issues raised in this case, it would I think be particularly undesirable to render such
         decisions, as it were, in a vacuum. For those reasons, as well as the reasons given by Mr. Justice
         Anderson, I agree in allowing the appeal.

3.       THE ISSUES

         The issues that arise in this appeal are:

         1.          In what circumstances may a statement of claim (or portions of it) be struck out?

         2.          Should Mr. Hunt‘s allegations based on the tort of conspiracy be struck out?

4.       ANALYSIS

(1)      In What Circumstances May a Statement of Claim be Struck Out?

         Carey Canada‘s motion to have the action dismissed was made pursuant to R. 19(24)(a) of the British
Columbia Rules of Court. This rule stipulates that a court may strike out any part of a statement of claim that
―discloses no reasonable claim‖. The rules of practice with respect to striking out a statement of claim are similar in
other provinces. In Ontario, for example, R. 21.01 of the Rules of Civil Procedure states:



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              21.01 (1) A party may move before a judge,

             (a) 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; or

             (b) to strike out a pleading on the ground that it discloses no reasonable cause of action or
         defence,

              and the judge may make an order or grant judgment accordingly.

              (2) No evidence is admissible on a motion,

              (a) under clause (1)(a), except with leave of a judge or on consent of the parties;

              (b) under clause (1)(b). [emphasis added)

         Rule 19(24) of the British Columbia Rules of Court and analogous provisions in other provinces are the
result of a ―codification‖ of the court‘s power under its inherent jurisdiction to stay actions that are an abuse of
process or that disclose no reasonable cause of action: see McLachlin and Taylor, British Columbia Practice, 2nd ed.
(1979), vol. l, p. 19-71. This process of codification first took place in England shortly after the Supreme Court of
Judicature Act, 1873 [36 & 37 Vict, c. 66], was enacted. It is therefore of some interest to review the interpretation
the courts in England have given to their rules relating to the striking out of a statement of claim.

(a)      England

          In Metro Bank, Ltd v. Pooley, 10 App. Cas. 210, [1881-85] All E.R. Rep. 949 (H.L.), the Lord Chancellor
explained at p. 951 that before the Supreme Court of Judicature Act, 1873, courts were prepared to stay a
―manifestly vexatious suit which was plainly an abuse of the authority of the court‖ even though there was no
written rule stating that courts could do so. The Lord Chancellor noted that ―[t]he power seemed to be inherent in
the jurisdiction of every court of justice to protect itself from the abuse of its procedure.‖ That is, it was open to
courts to ensure that their process was not used simply to harass parties through the initiation of actions that were
obviously without merit.

          Before the advent of the Supreme Court of Judicature Act, 1873, and the new Rules of the Supreme Court
(enacted in 1883) it had been open to parties to use a ―demurrer‖ to challenge a statement of claim. That is, it had
been open to a defendant to admit all the facts that the plaintiff‘s pleadings alleged and to assert that these facts were
not sufficient in law to sustain the plaintiff s case. When a demurrer was pleaded the question of law that was
thereby raised was immediately set down for argument and decision: see 36 Hals. (4th) 4, para. 2, n. 7, and 26, para.
35, n. 5; Milsom, Historical Foundations of the Common Law, 2nd ed. (1981), at p. 72; and Baker, An Introduction
to English Legal History, 2nd ed. (1979), at p. 69. But a formal and technical practice eventually grew up around
demurrer and judges were notoriously reluctant to provide definitive answers to the points of law that were thereby
raised. As the Lord Chancellor explained in Pooley, it was eventually thought best to replace demurrers with an
easier summary process for getting rid of an action that was on its face manifestly groundless. It was with this
objective in mind that O. 25, r. 4, of the 1883 Rules of the Supreme Court came into force:

              4. The court or a judge may order any pleading to be struck out, on the ground that it
         discloses no reasonable cause of action or answer, and in any such case or in case of the action or
         defence being shown by the pleading to be frivolous or vexatious, the court or a judge may order
         the action to be stayed or dismissed, or judgment entered accordingly, as may be just.

Commenting on the relative merits of demurrers and the new rule, Chitty J. observed in Peru Republic v. Peruvian
Guano Co. (1887), 36 Ch. D. 489 at 496:




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         Having regard to the terms of rule 4, and to the decisions on it, I think that this rule is more
         favourable to the pleading objected to than the old procedure by demurrer. Under the new rule the
         pleading will not be struck out unless it is demurrable and something worse than demurrable. If,
         notwithstanding defects in the pleading, which would have been fatal on a demurrer, the Court
         sees that a substantial case is presented the Court should, I think, decline to strike out that
         pleading; but when the pleading discloses a case which the Court is satisfied will not succeed, then
         it should strike it out and put a summary end to the litigation.

         One of the most important points advanced in the early decisions dealing with O. 25, r. 4, was the
proposition that the rule was derived from the courts‘ power to ensure both that they remained a forum in which
genuine legal issues were addressed and that they did not become a vehicle for ―vexatious‖ actions without legal
merit designed solely to harass another party. In Pooley, supra, at p. 954, Lord Blackburn asserted that the new rule
―considerably extends the power of the court to act in such a manner as I have stated, and enables it to stay an action
on further grounds than those on which it could have been stayed at common law.‖ Nonetheless, as Chitty J.
subsequently observed in Peruvian Guano Co., the rule was not intended to prevent a ―substantial case‖ from
coming forward. Its summary procedures were only to be used where it was apparent that allowing the case to go
forward would amount to an abuse of the court‘s process.

        In one of the better known decisions concerning the circumstances in which resort should be had to the rule
Lindley M.R. stated (Hubbuck & Sons Ltd v. Wilkinson, Heywood & Clark, [1899] 1 Q.B. 86 at 91 (C.A.))

         The second and more summary procedure is only appropriate to cases which are plain, and
         obvious, so that any master or judge can say at once that the statement of claim as it stands is
         insufficient, even if proved, to entitle the plaintiff to what he asks. The use of the expression
         “reasonable cause of action” in rule 4 shows that the summary procedure there introduced is only
         intended to be had recourse to in plain and obvious cases. [emphasis added]

Lindley M.R.‘s observations made clear that even if the rule expanded the court‘s power to stay actions, courts were
to use the rule only in those exceptional instances where it was ―plain and obvious‖ that, even if one accepted the
version of the facts put forward in the statement of claim, the plaintiffs case did not disclose a reasonable cause of
action. The question was not, whether the plaintiff could succeed since this was a matter properly left for
determination at trial. The question was simply whether the plaintiff was advancing a ―reasonable‖ argument that
could properly form the subject matter of a trial.

       The Master of the Rolls had made this very point some six years earlier (A.G. of Duchy of Lancaster v
London & North Western Ry. Co., [1892] 3 Ch. 274 at 276-77 (C.A.)):

              Then the Vice-Chancellor says: ―The questions raised upon this application are of such
         importance and such difficulty that I cannot say that this pleading discloses no reasonable cause
         of action, or that there is anything frivolous or vexatious; therefore, I shall let the parties plead in
         the usual way.‖ It appears to me that this is perfectly right. To what extent is the Court to go on
         inquiring into difficult questions of fact or law in the exercise of the power which is given under
         Order xxv, rule 4? It appears to me that the object of the rule is to stop cases which ought not to
         be launched - cases which are obviously frivolous or vexatious, or obviously unsustainable; and if
         it will take a long time, as is suggested, to satisfy the Court by historical research or otherwise that
         the County Palatine has no jurisdiction, I am clearly of opinion that such a motion as this ought
         not to be made. There may be an application in Chambers to get rid of vexatious actions; but to
         apply the rule to a case like this appears to me to misapply it altogether. [emphasis added]

Thus, the fact that the plaintiff‘s case was a complicated one could not justify striking out the statement of claim.
Complex matters that disclosed substantive questions of law were most appropriately addressed at trial where
evidence concerning the facts could be led and where arguments about the merits of a plaintiff‘s case could be made.

         The requirement that it be ―plain and obvious‖ that some or all of the statement of claim discloses no
reasonable cause of action before it can be struck out, as well as the proposition that it is singularly inappropriate to
use the rule‘s summary procedure to prevent a party from proceeding to trial on the grounds that the action raises


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difficult questions, has been affirmed repeatedly in the last century: see; Dyson v. A.G., [1911] 1 K.B. 410 (C.A.);
Evans v. Barclays Bank & Galloway, [1924] W.N. 97 (C.A.); Kemsley v. Foot, [1951] 2 K.B. 34, [1951] 1 T.L.R.
197, [1951] 1 All E.R. 331 (C.A.); and Nagle v. Feilden, [1966] 2 Q.B. 633, [1966] 2 W.L.R. 1027, [1966] 1 All
E.R. 689 (C.A.). Lord Justice Fletcher Moulton‘s observations in Dyson, at pp. 418-19, are particularly instructive:

              Now it is unquestionable that, both under the inherent power of the Court and also under a
         specific rule to that effect made under the Judicature Act, the Court has a right to stop an action at
         this stage if it is wantonly brought without the shadow of an excuse, so that to permit the action to
         go through its ordinary stages up to trial would be to allow the defendant to be vexed under the
         form of legal process when there could not at any stage be any doubt that the action was baseless.
         But from this to the summary dismissal of actions because the judge in chambers does not think
         they will be successful in the end lies a wide region, and the Courts have properly considered that
         this power of arresting an action and deciding it without trial is one to be very sparingly used, and
         rarely, if ever, excepting in cases where the action is an abuse of legal procedure. They have laid
         down again and again that this process is not intended to take the place of the old demurrer by
         which the defendant challenged the validity of the plaintiffs claim as a matter of law. Differences
         of law, just as differences of fact, are normally to be decided by trial after hearing in Court, and
         not to be refused a hearing in Court by an order of the judge in chambers. Nothing more clearly
         indicates this to be the intention of the rule than the fact that the plaintiff has no appeal as of right
         from the decision of the judge at chambers in the case of such an order as this. So far as the rules
         are concerned an action may be stopped by this procedure without the question of its justifiability
         ever being brought before a Court. To my mind it is evident that our judicial system would never
         permit a plaintiff to be “driven from the judgment seat” in this way without any Court having
         considered his right to be heard excepting in cases where the cause of action was obviously and
         almost incontestably bad. [emphasis added]

          A more recent and no less instructive discussion of these principles may be found in Lord Pearson‘s
reasons in Drummond-Jackson v. Br. Medical Assn., [1970] 1 W.L.R. 688, [19701 1 All E.R. 1094 (C.A.). I note
that in Drummond-Jackson the Court of Appeal dealt with Rules of the Supreme Court, O. 18, r. 19 (the provision
that replaced R.S.C., O. 25, r. 4, in 1962), a provision very similar to the rules that now govern the striking out of
pleadings in Canada:

             19.-(1) The Court may at any stage of the proceedings order to be struck out or amended any
         pleading or the indorsement of any writ in the action, or anything in any pleading or in the
         indorsement, on the ground that -

             (a) it discloses no reasonable cause of action or defence, as the case may be; or

             (b) it is scandalous, frivolous or vexatious; or

             (c) it may prejudice, embarrass or delay the fair trial of the action; or

             (d) it is otherwise an abuse of the process of the court;

         and may order the action to be stayed or dismissed or judgment to be entered accordingly as the case may
         be.

             (2) No evidence shall be admissible on an. application under paragraph (1)(a).

         Responding to Lord Denning‘s suggestion that the potential length and complexity of a trial should be
taken into account when considering whether to strike out a statement of claim, Lord Pearson (with whom Sir.
Gordon Willmer concurred in separate reasons) reaffirmed the proposition that Lord Justice Lindley had advanced
some 80 years earlier in A.G. of Duchy of Lancaster: length and complexity were not appropriate factors to consider
when deciding whether a statement of claim should be struck out. Lord Pearson said at pp. 1101-1102:




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              Over a long period of years it has been firmly established by many authorities that the power
         to strike out a statement of claim as disclosing no reasonable cause of action is a summary power
         which should be exercised only in plain and obvious cases . . .

              In my opinion the traditional and hitherto accepted view - that the power should only be used
         in plain and obvious cases - is correct according to the evident intention of the rule for several
         reasons. First, there is in r 19(1)(a) the expression ―reasonable cause of action‖, to which Sir
         Nathaniel Lindley MR called attention in Hubbuck d Sons Ltd v. Wilkinson, Heywood and Clark
         Ltd. No exact paraphrase can be given, but I think ―reasonable cause of action‖ means a cause of
         action with some chance of success, when (as required by r 19(2)) only the allegations in the
         pleading are considered. If when those allegations are examined it is found that the alleged cause
         of action is certain to fail, the statement of claim should be struck out. In Nagle v. Feilden
         Danckwerts LJ said:

             ―The summary remedy which has been applied to this action is one which is only to be
         applied in plain and obvious cases, when the action is one which cannot succeed or is in some way
         an abuse of the process of the court‖.

         Salmon LJ said:

             ―It is well settled that a statement of claim should not be struck out and the plaintiff driven
         from the judgment-seat unless the case is unarguable‖.

              Secondly, r 19(1)(a) takes some colour from its context in r 19(1)(b) - scandalous, frivolous
         and vexatious‖ - r 19(1)(c) – ―prejudice, embarrass or delay the fair trial of the action‖ - and r
         19(1)(d) - ―otherwise an abuse of the process of the court‖. The defect referred to in r 19(1)(a) is
         a radical defect ranking with those referred to in the other paragraphs. Thirdly, an application
         for the statement of claim to be struck out under this rule is made at a very early stage of the action
         when there is only the statement of claim without any other pleadings and without any evidence at
         all. The plaintiff should not be “driven from the judgment seat” at this very early stage unless it is
         quite plain that his alleged cause of action has no chance of success. [emphasis added]

Lord Pearson concluded at p. 1102:

         That is the basis of the rule and practice on which one has to approach the question whether the
         plaintiff‘s statement of claim in the present case discloses any reasonable cause of action. It is not
         permissible to anticipate the defence or defences - possibly same very strong ones - which the
         defendants may plead and be able to prove at the trial, nor anything which the plaintiff may plead
         in reply and seek to rely on at the trial. [emphasis added]

          In England, then, the test that governs an application under R.S.C., O. 18, r. 19, has always been and
remains a simple one: assuming that the facts as stated in the statement of claim can be proved, is it ―plain and
obvious‖ that the plaintiffs statement of claim discloses no reasonable cause of action? Is there a defect in the
statement of claim that can properly be characterized as a ―radical defect‖ ranking with the others listed in 0.18,
r.19? If it is plain and obvious that the action is certain to fail because it contains some such radical defect, then the
relevant portions of the statement of claim may properly be struck out. To allow such an action to proceed, even
although it was certain to fail, would be to permit the defendant to be ―vexed‖ and would therefore amount to the
very kind of abuse of the court‘s process that the rule was meant to prevent. But if there is a chance that the plaintiff
might succeed, then that plaintiff should not be ―driven from the judgment seat‖. Neither the length and complexity
of the issues of law and fact that might have to be addressed nor the potential for the defendant to present a strong
defence should prevent a plaintiff from proceeding with his or her case. Provided that the plaintiff can present a
―substantive‖ case, that case should be heard.




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(b)      Canada

         (i)         Ontario and British Columbia Courts of Appeal

          In Canada, provincial courts of appeal have long had to grapple with the very same issues concerning the
rules with respect to statements of claim that courts in England have dealt with for over a century. As noted earlier,
the rules of practice in this country are to a large extent modelled on England‘s rules of practice. It comes as no
surprise, therefore, that the test Canadian courts of appeal have adopted is in essence the same one that the courts in
England favour.

         Ontario

         In Ontario, for example, the Court of Appeal dealt with R. 124 (the predecessor to R. 21.01) in Ross v.
Scottish Union and National Ins. Co. (1920), 47 O.L.R. 308, 53 D.L.R. 415 (C.A.). The rule followed closely the
wording of England‘s R.S.C. 1883, O. 25, r. 4, and read as follows:

             124. A judge may order any pleading to be struck out on the ground that it discloses no
         reasonable cause of action or answer, and in any such case, or in case of the action or defence
         being shown to be frivolous or vexatious, may order the action to be stayed or dismissed, or
         judgment to be entered accordingly.

         In Ross, Magee J.A. embraced the ―plain and obvious‖ test developed in England, stating at p. 316:

         That inherent jurisdiction is partly embodied in our Rule 124, which allows pleadings to be struck
         out as disclosing no reasonable cause of action or defence, and thereby, in such case, or if the
         action or defence is shown to be vexatious or frivolous, the action may be stayed or dismissed or
         judgment be entered accordingly. The Rule has only been acted upon in plain and obvious cases,
         and it should only be so when the Court is satisfied that the case is one beyond doubt, and that
         there is no reasonable cause of action or defence. [emphasis added]

Magee J.A. went on to note at p. 317:

         To justify the use of Rule 124, a statement of claim should not be merely demurrable, but it should
         be manifest that it is something worse, so that it will not be curable by amendment: Dadswell v.
         Jacobs (1887), 34 Ch. D. 278, 281; Republic of Peru v. Peruvian Guano Co. (1887), 36 Ch. D.
         489; and it is not sufficient that the plaintiff is not likely to succeed at the trial: Boaler v. Holder
         (1886), 54 T.L.R. 298.

          At an early date, then, the Ontario Court of Appeal had modelled its approach to R 124 on the approach
that had been consistently favoured in England. And over time the Ontario Court of Appeal has gone on to show the
same concern that statements of claim not be struck out in anything other than the clearest of cases. As Laidlaw J.A.
put it in R. v. Clark, [1943] OR 501 at 515, [1943] 3 D.L.R. 684 (C.A.):

               The power to strike out proceedings should be exercised with great care and reluctance.
         Proceedings should not be arrested and a claim for relief determined without trial, except in cases
         where the Court is well satisfied that a continuation of them would be an abuse of procedure:
         Evans v. Barclay‟s Bank et al., [1924] W.N. 97. But if it be made clear to the Court that an action
         is frivolous or vexatious, or that no reasonable cause of action is disclosed, it would be improper
         to permit the proceedings to be maintained.

         More recently, in Gilbert Surgical Supply Co. v. F. W. Homer Ltd., [1960] O.W.N. 289 at 289-90, 34
C.P.R. 17 (C.A.), Aylesworth J.A. observed that the fact that an action might be novel was no justification for
striking out a statement of claim. The court would still have to conclude that ―the plaintiff‘s action could not
possibly succeed or that clearly and beyond all doubt, no reasonable cause of action had been shown‖.




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          Thus, the Ontario Court of Appeal has firmly embraced the ―plain and obvious‖ test and has made clear
that it too is of the view that the test is rooted in the need for courts to ensure that their process is not abused. The
fact that the case the plaintiff wishes to present may involve complex issues of fact and law or may raise a novel
legal proposition should not prevent a plaintiff from proceeding with his action.

         British Columbia

          In British Columbia the Court of Appeal has approached the matter in a similar way. The predecessor to
the rule that Carey Canada invokes in this appeal was worded in exactly the same way as England‘s R.S.C. 1883, O.
25, r. 4. Not surprisingly the British Columbia Court of Appeal‘s treatment of that rule has been similar to that
taken in England and Ontario. For example, in Minnes v. Minnes (1962), 39 W.W.R. 112 at 122-23,34 D.L.R. (2d)
497 (B.C.C.A.), Tysoe J.A, observed

             In my respectful view it is only in plain and obvious cases that recourse should be had to the
         summary process under O. 25, R. 4, and the power given by the Rule should be exercised only
         where the case is absolutely beyond doubt. So long as the statement of claim, as it stands or as it
         may be amended, discloses some question fit to be tried by a judge or jury, the mere fact that the
         case is weak or not likely to succeed is no ground for striking it out. If the action involves
         investigation of serious questions of law or questions of general importance, or if the facts are to
         be known before rights are definitely decided, the Rule ought not to be applied. [emphasis added)

For his part Norris J.A. noted at p.116 (agreeing with Tysoe LA.):

              I might add that upon the motion, with respect, it was not for the learned trial judge as it is
         not for this court to consider the issues between the parties as they would be considered on trial.
         All that was requited of the plaintiff on the motion was that she should show that on the statement
         of claim; accepting the allegations therein made as true, there was disclosed from that pleading
         with such amendments as might reasonably be made, a proper case to be tried. [emphasis added]

The law as stated in Minnes v. Minnes was recently reaffirmed in McNaughton v Baker, [1988] 4 W.W.R. 742, 25
B.C.L.R. (2d) 17 at 23, 28 C.P.C. (2d) 49 (C.A.), per McLachlin J.A. Similarly, Anderson and Esson M.A. relied on
Minnes v. Minnes in this appeal.

         Once again then the ―plain and obvious‖ test has been firmly embraced. The British Columbia Court of
Appeal has confirmed that the summary proceedings available under the rule in question do not afford an
appropriate forum in which to engage in a detailed examination of the strengths and weaknesses of the plaintiff‘s
case. The sole question is whether, assuming that all the facts the plaintiff alleges are true, the plaintiff can present
‗a question ―fit to be tried‖. The complexity or novelty of the question that the plaintiff wishes to bring to trial
should not act as a bar to that trial taking place.

(ii)     Supreme Court of Canada

         While this court has had a some-what limited opportunity to consider how the rules regarding the striking
out of a statement of claim are to be applied, it has nonetheless consistently upheld the ―plain and obvious‖ test.
Justice Estey, speaking for the court in A.G. Can. v. Inuit Tapirisat of Can., [1980] 2 S.C.R. 735 at 740, 115 D.L.R
(3d) 1, 33 N.R. 304 [Fed.], stated:

              As I have said, all the facts pleaded in the statement of claim must be deemed to have been
         proven. On a motion such as this a count should, of course, dismiss the action or strike out any
         claim made by the plaintiff only in plain and obvious cases and where the court is satisfied that
         ―the case is beyond doubt‖: Ross v. Scottish Union and National Insurance Co.

         I had occasion to affirm this proposition in Operation Dismantle Inc. v. R., [1985] 1 S.C.R. 441,12 Admin.
L.R. 16, 13 C.R.R. 287, 18 D.L.R. (4th) 481, 59 N.R. 1 [Fed.]. At pp. 486-87 I provided the following summary of
the law in this area (with which the rest of the court concurred):



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              The law then would appear to be clear. The facts pleaded are to be taken as proved. When so
         taken, the question is do they disclose a reasonable cause of action, i.e. a cause of action ―with
         some chance of success‖ (Drummond-Jackson v. British Medical Association, [1970] 1 All E.R.
         1094) or, as Le Dain J. put it in Dowson v. Government of Canada (1981), 37 N.R. 127 (F.C.A.),
         at p. 138, is it ―plain and obvious that the action cannot succeed?‖

And at p. 477 I observed:

              It would seem then that as a general principle the Courts will be hesitant to strike out a
         statement of claim as disclosing no reasonable cause of action. The fact that reaching a
         conclusion on this preliminary issue requires lengthy argument will not be determinative of the
         matter nor will the novelty of the cause of action militate against the plaintiffs. [emphasis added]

        Most recently, in Dumont v. Can. (A.G.), [1990] 1 S.C.R. 279, [1990] 4 W.W.R. 127, 67 D.L.R. (4th) 159, I
made clear at p, 280 that it was my view that the test set out in Inuit Tapirisat was the correct test. The test
remained whether the outcome of the case was ―plain and obvious‖ or ―beyond reasonable doubt‖.

          Thus, the test in Canada governing the application of provisions like R. 19(24)(a) of the British Columbia
Rules of Court is the same as the one that governs an application under R.S.C., O. 18, r. 19: assuming that the facts
as stated in the statement of claim can be proved, is it ―plain and obvious‖ that the plaintiff‘s statement of claim
discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the
plaintiff should not be ―driven from the judgment seat‖. Neither the length and complexity of the issues, the novelty
of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff
from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ranking
with the others listed in R. 19(24) of the British Columbia Rules of Court should the relevant portions of a plaintiff s
statement of claim be struck out under R. 19(24)(a).

         The question therefore to which we must now turn in this appeal is whether it is ―plain and obvious‖ that
the plaintiffs claims in the tort of conspiracy disclose no reasonable cause of action or whether the plaintiff has
presented a case that is ―fit to be tried‖, even though it may call for a complex or novel application of the tort of
conspiracy.

(2)      Should Mr. Hunt‟s Allegations Based on the Tort of Conspiracy Be Struck from his Statement of Claim?

…

         Not surprisingly, the defendants contend that it would be equally inappropriate to extend the tort of
conspiracy to cover the facts of this case. The difficulty I have, however, is that in this appeal we are asked to
consider whether the allegations of conspiracy should be struck from the plaintiffs statement of claim, not whether
the plaintiff will be successful in convincing a court that the tort of conspiracy should extend to cover, the facts of
this case. In other words, the question before us is simply whether it is ―plain and obvious‖ that the statement of
claim contains a radical defect.

         Is it plain and obvious that allowing this action to proceed amounts to an abuse of process? I do not think
so. While there has clearly been judicial reluctance to extend the scope of the tort beyond the commercial context, I
do not think this court has ever suggested that the tort could not have application in other contexts. While Estey J.
expressed the view in Can. Cement LaFarge Ltd., supra, at p. 473, that the action had lost much of its usefulness,
and while I noted in Frame v. Smith, at pp. 124-25, that some have even suggested that consideration should be
given to abolishing the tort entirely (see Burns, ―Civil Conspiracy: An Unwieldy Vessel Rides a Judicial Tempest‖
(1982), 16 U.B.C. L. Rev. 229, at p. 254), we both affirmed the ongoing existence of the tort at the date of these
judgments. In my view, it would be highly inappropriate for this court to deny a litigant who is capable of fitting his
allegations into Estey J.‘s two-pronged summary of the law on civil conspiracy the opportunity to persuade a court
that the facts are as alleged and that the tort of conspiracy should be held to apply on these facts. While courts
should pause before extending the tort beyond its existing confines, careful consideration might conceivably lead to
the conclusion that the tort has a useful role to play in new contexts.



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          I note that in Frame v. Smith, at p. 126, I was not prepared to extend the tort of conspiracy to the custody
and access context both because such an extension was not in the best interests of children and because such an
extension would not have been consistent with the rationale that underlies the tort of conspiracy: ―namely that the
tort be available where the fact of combination creates an evil which does not exist in the absence of combination‖
[p. 125]. But in the appeal now before us it seems to me much less obvious that a similar conclusion would
necessarily be reached. If the facts as alleged by the plaintiff are true, and for the purposes of this appeal we must
assume that they are, then it may well be that an agreement between corporations to withhold information about a
toxic product might give rise to harm of a magnitude that could not have arisen from the decision of just one
company to withhold such information. There may, accordingly, be good reason to extend the tort to this context.
However, this is precisely the kind of question that it is for the trial judge to consider in light of the evidence. It is
not for this court on a motion to strike out portions of a statement of claim to reach a decision one way or the other
as to the plaintiffs chances of success. As the law that spawned the ―plain and obvious‖ test makes clear, it is
enough that the plaintiff has some chance of success.

          The issues that will arise at the trial of the plaintiffs action in conspiracy will unquestionably be difficult.
The plaintiff may have to make complex submissions about whether the evidence establishes that the defendants
conspired either with a view to causing him harm or in circumstances where they should have known that their
actions would cause him harm. He may well have to make novel arguments concerning whether it is enough that the
defendants knew or ought to have known that a class of which the plaintiff was a member would suffer harm. The
trial judge might conclude, as some of the defendants have submitted, that the plaintiff should have sued the
defendants as joint tortfeasors rather than alleging the tort of conspiracy. But this court‘s statements in Inuit
Tapirisat and Operation Dismantle Inc., as well as decisions such as Dyson and Drummond-Jackson, make clear
that none of these considerations may be taken into account on an application brought under R 19(24) of the British
Columbia Supreme Court Rules.

          In my view, Anderson and Esson JJ.A. were entirely correct in suggesting that it should be left to the trial
judge to ascertain whether the plaintiff can establish that the predominant purpose of the alleged conspiracy was to
injure the plaintiff. It seems to me that they were also correct in suggesting that it should be left to the trial judge to
consider the merits of any arguments that may be advanced to the effect that the ―predominant purpose‖ test should
be modified in the context of this case. Similarly, it seems to me that the argument that some of the defendants
advanced, to the effect that Quebec‘s Business Concerns Records Act, R.S.Q. 1977, c. D-12, might limit the range of
information that the defendants could produce at trial, is a matter that is not relevant to the question whether the
plaintiff‘s statement of claim discloses a reasonable claim.

          The fact that a pleading reveals ―an arguable, difficult or important point of law‖ cannot justify striking out
part of the statement of claim. Indeed, I would go so far as to suggest that where a statement of claim reveals a
difficult and important point of law, it may well be critical that the action be allowed to proceed. Only in this way
can we be sure that the common law in general, and the law of torts in particular, will continue to evolve to meet the
legal challenges that arise in our modern industrial society.

…

          In my view, there are at least two problems with this submission. First, while it may be arguable that if one
succeeds under a distinct nominate tort against an individual defendant, then an action in conspiracy should not be
available against that defendant, it is far from clear that the mere fact that a plaintiff alleges that a defendant
committed other torts is a bar to pleading the tort of conspiracy. It seems to me that one can only determine whether
the plaintiff should be barred from recovery under the tort of conspiracy once one ascertains whether he has
established that the defendant did in fact commit the other alleged torts. And while on a motion to strike we are
required to assume that the facts as pleaded are true, I do not think that it is open to us to assume that the plaintiff
will necessarily succeed in persuading the court that these facts establish the commission of the other alleged
nominate torts. Thus, even if one were to accept the appellants‘ (defendants‘) submission that ―[u]pon proof of the
commission of the tortious acts alleged‖ in para. 20 of the plaintiff s statement of claim ―the conspiracy merges with
the tort‖, one simply could not decide whether this ―merger‖ had taken place without first deciding whether the
plaintiff had proved that the other tortious acts had been committed.




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           This brings me to the second difficulty I have with the defendants‘ submission. It seems to me totally
inappropriate on a motion to strike out a statement of claim to get into the question whether the plaintiffs allegations
concerning other nominate torts will be successful. This is a matter that should be considered at trial where
evidence with respect to the other torts can be led and where a fully informed decision about the applicability of the
tort of conspiracy can be made in light of that evidence and the submissions of counsel. If the plaintiff is successful
with respect to the other nominate torts, then the trial judge can consider the defendants‘ arguments about the
unavailability of the tort of conspiracy. If the plaintiff is unsuccessful with respect to the other nominate torts, then
the trial judge can consider whether he might still succeed in conspiracy. Regardless of the outcome, it seems to me
inappropriate at this stage in the proceedings to reach a conclusion about the validity of the defendants‘ claims about
merger. I believe that this matter is also properly left for the consideration of the trial judge.

         In the result the appellants have not demonstrated that those portions of the respondent‘s statement of claim
which allege the tort of conspiracy fail to disclose a reasonable claim. They should not therefore be struck out under
R 19(24)(a) of the British Columbia Rules of Court

5.       DISPOSITION

         The appeal should be dismissed with costs.

                                                                                                      Appeal dismissed




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                                  National Leasing Group Inc. v. Top West Ventures Ltd.

2001 BCSC 111

1.       MASTER BOLTON: - This is an application by the defendant by counterclaim to dismiss the
counterclaim on the ground that it discloses no reasonable claim.

2.       The plaintiff‘s action against the defendants is for a debt alleged due for a computer system and
accessories. It is difficult to describe the nature of the defence or counterclaim.

3.       The counterclaim consists of 97 paragraphs, over 26 pages. It was apparently drafted by a friend of the
defendant Mr. Shandler who has a somewhat idiosyncratic approach to English grammar. For instance, he has
deconstructed the outline of the defendant by counterclaim prepared for this hearing, breaking it down into its
constituent parts of speech. According to the helpful code he endorsed on the outline, the three personal names
forming the title of the defendant law firm, Douglas Symes & Brissenden, are respectively an adjective, a pronoun
and another pronoun.

4.       On the face of the document, I had difficulty discerning any cause of action while the matter was being
spoken to in chambers, but in view of its length and complexity, I concluded that I should reserve my decision in
order to consider it in more detail.

5.       The first paragraph reads:

         1.          For the [DE]FENDANT with the knowledge of the David-Wynn:Miller; Language-Procedures
                     (http://www.dwmlawprocedures.com; http://brucestellar.tsx.org) is with the damage: damage by
                     the utilization of the fictitious-language/scribble as the foundation for the authority for the
                     action/claim against the DE[FENDANT] damage by the criminal-rate of the interest [section: 347:
                     Criminal-Code of the Canada]; damage by the false-statements [section: 397.1(a); Criminal-Code
                     of the Canada]; damage by the completion of a fraud: constructive or actual [section: 380.1 of the
                     Criminal Code of the Canada]; damage by the completion of a mail-fraud [section: 381 of the
                     Criminal-Code of the Canada; damage by the bad-faith; by the PLAINTIFF and DEFENDANT by
                     the COUNTER-CLAIM.

This is not too bad. It does not disclose a cause of action, because the nature of the transaction, the parties, and the
date, are not set out. But there is some general indication of an intention to plead fraud, misrepresentation and the
levying of a criminal rate of interest. If properly particularized it might form the basis of an arguable defence or
cause of action against the plaintiff.

6.      But unfortunately the counterclaim does not give anything I can recognize as particulars in any of its
remaining 96 paragraphs. A selection of other pleadings, chosen not entirely at random, follows:

         5.          For the SUPREME-COURT of the BRITISH-COLUMBIA, with the possession of this Counter-
                     claim-vessel is, as the holder in the due-course of this Counter-claim-vessel, with the
                     knowledge/claim with this Counter-claim-vessel.

         ….

         14.         For the establishment of the Truth with the noun-subject-matter-language with this Counter-claim
                     in the now-tense is with the now-tense-seizure/salvage of the fiction-jurisdiction, in the use by the
                     PLAINTIFF and DEFENDANT by the COUNTER-CLAIM, by the [DE]FENDANT.

         ….




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         17.         For the utilization/operation of the fictitious-language/scribble/scribble-procedures of the English-
                     language by the PLAINTIFF and DEFENDANT by the COUNTER-CLAIM is with the creation
                     of the fictitious-language/scribble by the PLAINTIFF and DEFENDANT by the COUNTER-
                     CLAIM.

         …

         21.         For the use of the word: OF, in the phrase/claim:

                     STATEMENT OF CLAIM(sic), with the absence of an article in the immediate-next-position, is
                     with the use of the word: OF, as the adverb for the modification of the immediate-next-word:
                     CLAIM, as a verb, by a procedure of the English-language.

         …

         38.         For the use of the pre-fix: De, with the word:

                     De-fendant, is with the use of the pre-fix for the negation of the root-word, fendant, by the
                     attachment and modification of the pre-fix of the negation: De, by a procedure of the English-
                     language.

         …

         46.         For the use of the word: Plaintiff, as a verb in the phrase/claim is with the lack of the
                     certification/authentication of the subject-matter-noun-Plaintiff with the CLAIM.

         …

         74.         For the lack of the joinder and jurisdiction in the now-tense is with the lack of the now-tense-
                     statement/claim: incorporation, registration, entrance, containment, charge, calculation, expiration,
                     placement, assignment, deliverance, acknowledgment, fault, attempt, retrieval, refusal, suffering,
                     enrichment, entitlement, conversion, estimation and negligence, by the PLAINTIFF and
                     DEFENDANT by the COUNTER-CLAIM, for the now-tense-adjudication of a past-tense-
                     statement/claim by the SUPREME-COURT of the BRITISH-COLUMBIA.

         …

         89.         FOR THE [DE]FENDANT-CLAIMS, THAT THE LEASE, BY THE PLAINTIFF AND
                     DEFENDANT BY THE COUNTER-CLAIM, IS WITH THE LACK OF THE SUBJECT-
                     MATTER, FOR THE FOUNDATION OF A CLAIM AGAINST THE [DE]FENDANT, AND AS
                     A RESULT, WITH THE VOID.

         …

         94.         FOR THE [DE]FENDANT-CLAIMS, THAT THE LEASE IS WITH A PROVISION FOR A
                     CRIMINAL-RATE OF THE INTEREST, [SECTION: 337 OF THE CRIMINAL-CODE OF THE
                     CANADA], AND AS A RESULT, WITH THE REASON FOR THE FORFEITURE OF THE
                     PLAINTIFF‘S-DEFENDANT‘S BY THE COUNTER-CLAIM-LOCUS-STANDI IN THE
                     SUPREME-COURT OF THE BRITISH COLUMBIA FOR THE SEEKING OF A REMEDY.

         95.         OR IN THE ALTERNATIVE, FOR THE [DE]FENDANT-CLAIMS, ORDER OF THE COURT
                     FOR AN ACCOUNTING, BY AN INDEPENDENT-ACCOUNTANT, OF THE PLAINTIFF‘S-
                     BOOKS FOR A DETERMINATION OF THE AMOUNT-OF-MONEY, WITH THE
                     PLAINTIFF, BY THE WAY OF AN EARNING IN THE FORM-OF-MONEY FROM A
                     CRIMINAL-RATE OF THE INTEREST, FROM ALL LEASE-AGREEMENTS, FOR A



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                     CALCULATION OF THE EXEMPLARY-DAMAGES, EQUAL WITH THE AMOUNT-
                     FOUND, FOR THE BENEFIT OF THE [DE]FENDANT.

         96.         :ANIMUS-MININIS EST ANIMA-SCRIPTI

         FOR THE INTENTION OF A PARTY IS WITH THE SOUL OF THE INSTRUMENT.

         97.         :RATIO-LEGIS EST ANIMA-LEGIS

         FOR THE REASON OF THE LAW IS WITH THE SOUL OF THE LAW.

The document concludes with this stirring declamation:

By the [DE]FENDANT:

In the City of the Vancouver
in the Province/State of the British-Columbia in the
Land of the Canada with the Law of the Flag and with
the right of the contract.

Date: 2000-Anno-Domini/10/25

In the Good-faith, with the God as the Witness;
Autograph of the [DE]FENDANT
SEAL

―Aerock:Shandler: 2000-ANNO-DOMINI/10/25‖ :Aerock: Shandler

The signature of Mr. Shandler is sealed with a single fingerprint.

7.       There are a couple of paragraphs where a glimmering of a defence against the plaintiff can be
discerned. Paragraphs 78 and 94 raise a question of a criminal rate of interest, but give no particulars amounting to a
cause of action. Paragraph 89 is an unparticularized assertion that the lease forming the basis of the plaintiff‘s claim
is void. Paragraph 95 requests an accounting of the amount due under the lease. These allegations, if fleshed out
with particulars, might conceivably amount to a defence against the plaintiff‘s claim. But even with any imaginable
particulars, they could not possibly form the basis for a claim against the defendant by way of counterclaim.

8.       In the result, I am satisfied that the counterclaim does disclose no cause of action and must be dismissed,
with costs.

9.       If Mr. Shandler genuinely believes he has a defence against the plaintiff‘s claim, I would respectfully
suggest that, without sacrificing his friendship with Mr. Naudi, he might seek advice from someone whose theories
of pleadings and grammar are rather more attuned to traditional usage. It is certainly thought-provoking to consider
the ―de‖ in ―defendant‖ as a negation of a root word ―fendant‖, and ―plaintiff‖ as a verb. (If the OED is watching,
Mr. Naudi said it first, not I.) But the judges and masters of the Supreme Court of British Columbia are required to
be somewhat conservative, if not downright pedantic, when it comes to pleadings. Our scribble/scribble-procedures
are not inflexible, but they do require that counterclaims disclose a comprehensible, arguable cause of action, and I
am afraid that this one does not.




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                          Bank of British Columbia v. CBC
                               (Statement of Claim)




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                                       Canadian Bar Association v. British Columbia

2008 BCCA 92

Reasons for Judgment of the Honourable Madam Justice Saunders:

 [1]          In this action, the Canadian Bar Association challenges the legal aid system in British Columbia. On
 a preliminary motion, Chief Justice Brenner dismissed the action on the dual bases that the Association lacks
 standing to bring the claims and that the statement of claim should be struck under Rule 19(24) of the Rules of
 Court as disclosing no reasonable claim.

 [2]           The action commenced by the Association is far-reaching. Broadly speaking, the Association claims
 that the legal aid system is so inadequate as to offend the Constitution of Canada, written and unwritten, as well as
 international human rights instruments. It seeks declarations to that effect, an order directing the Federal and
 Provincial Crowns to establish and maintain legal aid consistent with the norms it says have been breached, and an
 order that the court retain ongoing supervisory jurisdiction to ensure compliance.

 [3]          The Association is the national bar organization. It does not have a direct interest in the action.
 Rather, success in the action, in addition to enhancing legal aid to members of the community, would increase the
 quantum of legal fees paid to lawyers, many if not most of whom are members of the Association.

 [4]          The action is against Her Majesty the Queen in Right of British Columbia and the Attorney General of
 Canada, between them said by the Association to have responsibility for the inadequate funding. It has joined as
 well the Legal Services Society. The Legal Services Society is responsible for administering the legal aid scheme
 in the province. As the real issues raised are between the Association and the two levels of government, the Legal
 Services Society made no submissions on the appeal.

 …

 Discussion

[36]        Rule 19(24)(a) of the Rules of Court states:

         19(24) At any stage of a proceeding the court may order to be struck out or amended the whole
         or any part of an endorsement, pleading, petition or other document on the ground that
                     (a)   it discloses no reasonable claim or defence as the case may be, […]

[37]        In considering whether a reasonable claim is alleged under Rule 19(24)(a), the court considers the case
on the basis the facts alleged are true. That is, this enquiry does not engage any of the evidence adduced by the
parties, and the case is taken at its highest for the plaintiff: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959.

 [38]        On this appeal, the Association contends that Chief Justice Brenner erred in the conclusions relating to
 the unwritten and written constitution. It says it is not plain and obvious that its claim, based on unwritten
 constitutional norms, is not justiciable. On the alleged Charter breaches the Association says that particular
 claimants and particular circumstances are not essential for judicial review of government action. As to its claim
 under s. 36 of the Constitution Act, 1982, the Association agrees that its claim is novel, but says that such
 character does not mean it is doomed to fail. As well, the Association emphasizes the systemic nature of its claim,
 and says that as a systemic claim, it is not easily amenable to review through individual cases.

…




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 [42]       The first pleaded claim of the Association is based upon unwritten constitutional principles said by the
 Association, in para. 73 of its statement of claim, to be violated:

         (a)     directly, by interfering with [Poor People‘s] access to courts and tribunals; and
         (b      indirectly, by their failure to remove impediments to their access to the courts and
                  tribunals.

[43]         In para. 75, the Association further invokes an unwritten constitutional principle, judicial independence,
saying it is violated by:

         (a)     drawing judges and tribunals into assisting unrepresented or under-represented Poor
                  People in a way that undermines the appearance of judicial impartiality;
         (b)     compromising the adversarial system; and
         (c)     creating a conflict between the duty to ensure a fair hearing and the duty to ensure
                  impartiality.

 [44]        It is a valid argument to say that unwritten constitutional principles may give rise to substantive legal
 obligations or legal remedy. Such was the case in the landmark decision of Roncarelli, and is affirmed in
 Reference re Secession of Quebec.

 [45]        However, the invocation of unwritten constitutional principles in this case is in the context of a dispute
 over the funding of legal aid. In this, the statement of the Supreme Court of Canada in British Columbia
 (Attorney General) v. Christie, [2007] 1 S.C.R. 873, 2007 SCC 21 [―Christie (SCC)‖] rules out, in my view, a
 broad-based systemic claim to greater legal services based on unwritten principles:

         [23]     The issue, however, is whether general access to legal services in relation to court and
         tribunal proceedings dealing with rights and obligations is a fundamental aspect of the rule of law.
         In our view, it is not. Access to legal services is fundamentally important in any free and
         democratic society. In some cases, it has been found essential to due process and a fair trial. But
         a review of the constitutional text, the jurisprudence and the history of the concept does not
         support the respondent‘s contention that there is a broad general right to legal counsel as an aspect
         of, or precondition to, the rule of law.
         […]
         [26]    Nor has the rule of law historically been understood to encompass a general right to have a
         lawyer in court or tribunal proceedings affecting rights and obligations. The right to counsel was
         historically understood to be a limited right that extended only, if at all, to representation in the
         criminal context: M. Finkelstein, The Right to Counsel (1988), at pp. 1-4 to 1-6; W. S.
         Tarnopolsky, ―The Lacuna in North American Civil Liberties — The Right to Counsel in Canada‖
         (1967), 17 Buff. L. Rev. 145; Comment, ―An Historical Argument for the Right to Counsel During
         Police Interrogation‖ (1964), 73 Yale L.J. 1000, at p. 1018.
         [27]    We conclude that the text of the Constitution, the jurisprudence and the historical
         understanding of the rule of law do not foreclose the possibility that a right to counsel may be
         recognized in specific and varied situations. But at the same time, they do not support the
         conclusion that there is a general constitutional right to counsel in proceedings before courts and
         tribunals dealing with rights and obligations.
                                                                                       [Emphasis in original.]

 [46]       Whether there are unwritten principles that may be invoked in an individual case, I leave to another
 day. This statement of claim does not purport to advance individual cases that may resonate more loudly on the
 issues mentioned.



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 …

 [50]         This statement of claim, devoid of particulars of individuals, their cases, and their jeopardy, does not
 raise a justiciable issue on s. 7. The pleading is simply too general to permit the enquiry sought or the relief
 contended for.

 [51]          I have come to the same conclusion on the other allegations of breach of the Charter. In particular, a s.
 15 enquiry requires the court to not only review the particular deficiency alleged, but to do so in the context of a
 comparator group that is chosen bearing in mind the characteristics of the individual. Although the Association
 contends that it is for the trial judge to determine whether there is a Charter breach justifying the relief sought, the
 plaintiff is still required to plead material facts that warrant the court‘s enquiry into the matter. This means there
 must be a pleading that, if all facts are taken as true, can lead to the relief sought. Such is not the case here.

 [52]        The third claim in issue before us is brought under s. 36(1)(c) of the Constitution Act, 1982. Section
 36, not often mentioned in jurisprudence, provides:

         36. (1) Without altering the legislative authority of Parliament or of the provincial legislatures,
         or the rights of any of them with respect to the exercise of their legislative authority, Parliament
         and the legislatures, together with the government of Canada and the provincial governments, are
         committed to
                     (a)   promoting equal opportunities for the well-being of Canadians;
                     (b)   furthering economic development to reduce disparity in opportunities;
                            and
                     (c)   providing essential public services of reasonable quality to all
                            Canadians.
         (2)     Parliament and the government of Canada are committed to the principle of making
         equalization payments to ensure that provincial governments have sufficient revenues to provide
         reasonably comparable levels of public services at reasonably comparable levels of taxation.

[53]        I accept that ―a reasonable argument might be advanced that the section could possibly have been
intended to create enforceable rights‖ (Manitoba Keewatinowi Okimakanak at para. 10), but more than that is
required of a statement of claim. Material facts must be pleaded to create an informed environment for
consideration of that question. The statement of claim in this case does not accomplish that end. On these
pleadings, this claim is not justiciable — there is no reasonable claim to try.

…

 [59]       The purpose of pleadings was described by Smith J. in Homalco Indian Band v. British Columbia
 (1998), 25 C.P.C. (4th) 107 (B.C.S.C.):

         [5]      The ultimate function of pleadings is to clearly define the issues of fact and law to be
         determined by the court. The issues must be defined for each cause of action relied upon by the
         plaintiff. That process is begun by the plaintiff stating, for each cause, the material facts, that is
         those facts necessary for the purpose of formulating a complete cause of action: Troup v.
         McPherson (1965), 53 W.W.R. 37 (B.C.S.C.) at 39.

[60]        The history of pleadings is well described by Parrett J. in Keene v. British Columbia (Ministry of
Children and Family Development), 2003 BCSC 1544, 20 B.C.L.R. (4th) 170. The rules on pleading are not overly
technical. Pleadings prevent expansion of the issues, give notice of the case required to be met, and provide
certainty of the issues for purposes of appeal. Complexity and confusion that can be created by a moving target is
avoided by pleadings correctly drawn, as are subsequent quarrels in this Court as to the issues before the trial court.
Pleadings are an elegant solution to issue definition and notice and are well-serving of the ultimate purpose of



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efficient resolution of a dispute on its merits (Rule 1(5) of the Rules of Court). Ideally, they avoid the ―loose
thinking‖ decried by Lord Denning in his foreward to I.H. Jacob, Bullen and Leake and Jacob's Precedents of
Pleadings, 12th ed. (London: Sweet & Maxwell, 1975).

[61]          Notwithstanding Lord Denning‘s lament, pleadings do not always display rigour of analysis. Yet the
trial court, in whom is vested responsibility for its own process, is not hasty to strike a claim under Rule 19(24) of
the Rules of Court. Only where, as here, it is plain and obvious the claim cannot succeed is that step taken. That
this test results in dismissal of this action is germane to the issue of costs. A case that cannot survive the application
of Rule 19(24)(a) rests upon the weakest of foundations for an order of costs.

[62]       I see no error in the approach taken to costs of the proceedings in the Supreme Court of British
Columbia, and I see no valid basis to depart from the order, as is usual in this Court, that the successful parties
should have their costs.

Summary

[63]        I would dismiss the appeal with costs to the respondents.




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                                                  Blank v. Canada (Minister of Justice)

2006 SCC 39
FISH J.

1         This appeal requires the Court, for the first time, to distinguish between two related but conceptually
distinct exemptions from compelled disclosure: the solicitor-client privilege and the litigation privilege. They often
co-exist and one is sometimes mistakenly called by the other‘s name, but they are not coterminous in space, time or
meaning.

2        More particularly, we are concerned in this case with the litigation privilege, with how it is born and when
it must be laid to rest. And we need to consider that issue in the narrow context of the Access to Information Act,
R.S.C. 1985, c. A-1 (―Access Act‖), but with prudent regard for its broader implications on the conduct of legal
proceedings generally.

3        This case has proceeded throughout on the basis that ―solicitor-client privilege‖ was intended, in s. 23 of
the Access Act, to include the litigation privilege which is not elsewhere mentioned in the Act. Both parties and the
judges below have all assumed that it does.

4         As a matter of statutory interpretation, I would proceed on the same basis. The Act was adopted nearly a
quarter-century ago. It was not uncommon at the time to treat ―solicitor-client privilege‖ as a compendious phrase
that included both the legal advice privilege and litigation privilege. This best explains why the litigation privilege
is not separately mentioned anywhere in the Act. And it explains as well why, despite the Act‘s silence in this
regard, I agree with the parties and the courts below that the Access Act has not deprived the government of the
protection previously afforded to it by the legal advice privilege and the litigation privilege: In interpreting and
applying the Act, the phrase ―solicitor-client privilege‖ in s. 23 should be taken as a reference to both privileges.

5        In short, we are not asked in this case to decide whether the government can invoke litigation privilege.
Quite properly, the parties agree that it can. Our task, rather, is to examine the defining characteristics of that
privilege and, more particularly, to determine its lifespan.

6        The Minister contends that the solicitor-client privilege has two ―branches‖, one concerned with
confidential communications between lawyers and their clients, the other relating to information and materials
gathered or created in the litigation context. The first of these branches, as already indicated, is generally
characterized as the ―legal advice privilege‖; the second, as the ―litigation privilege‖.

7        Bearing in mind their different scope, purpose and rationale, it would be preferable, in my view, to
recognize that we are dealing here with distinct conceptual animals and not with two branches of the same tree.
Accordingly, I shall refer in these reasons to the solicitor-client privilege as if it includes only the legal advice
privilege, and shall indeed use the two phrases — solicitor-client privilege and legal advice privilege —
synonymously and interchangeably, except where otherwise indicated.

8         As a matter of substance and not mere terminology, the distinction between litigation privilege and the
solicitor-client privilege is decisive in this case. The former, unlike the latter, is of temporary duration. It expires
with the litigation of which it was born. Characterizing litigation privilege as a ―branch‖ of the solicitor-client
privilege, as the Minister would, does not envelop it in a shared cloak of permanency.

9        The Minister‘s claim of litigation privilege fails in this case because the privilege claimed, by whatever
name, has expired: The files to which the respondent seeks access relate to penal proceedings that have long
terminated. By seeking civil redress for the manner in which those proceedings were conducted, the respondent has
given them neither fresh life nor a posthumous and parallel existence.

10       I would therefore dismiss the appeal.




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                                                           II

11        The respondent is a self-represented litigant who, though not trained in the law, is no stranger to the courts.
He has accumulated more than ten years of legal experience first-hand, initially as a defendant and then as a
petitioner and plaintiff. In his resourceful and persistent quest for information and redress, he has personally
instituted and conducted a plethora of related proceedings, at first instance and on appeal, in federal and provincial
courts alike.

12       This saga began in July 1995, when the Crown laid 13 charges against the respondent and Gateway
Industries Ltd. (―Gateway‖) for regulatory offences under the Fisheries Act, R.S.C. 1985, c. F-14, and the Pulp and
Paper Effluent Regulations, SOR/92-269. The respondent was a director of Gateway. Five of the charges alleged
pollution of the Red River and another eight alleged breaches of reporting requirements.

13      The counts relating to reporting requirements were quashed in 1997 and the pollution charges were quashed
in 2001. In 2002, the Crown laid new charges by way of indictment — and stayed them prior to trial. The
respondent and Gateway then sued the federal government in damages for fraud, conspiracy, perjury and abuse of its
prosecutorial powers.

14       This appeal concerns the respondent‘s repeated attempts to obtain documents from the government. He
succeeded only in part. His requests for information in the penal proceedings and under the Access Act were denied
by the government on various grounds, including ―solicitor-client privilege‖. The issue before us now relates solely
to the Access Act proceedings. We have not been asked to decide whether the Crown properly fulfilled, in the
criminal proceedings, its disclosure obligations under R. v. Stinchcombe, [1991] 3 S.C.R. 326. And in the record
before us, we would in any event be unable to do so.…

                                                           III

21       Section 23 of the Access Act provides:

         The head of a government institution may refuse to disclose any record requested under this Act
         that contains information that is subject to solicitor-client privilege.

22      The narrow issue before us is whether documents once subject to the litigation privilege remain privileged
when the litigation ends.

23        According to the appellant, this Court has determined that litigation privilege is a branch of the solicitor-
client privilege and benefits from the same near-absolute protection, including permanency. But none of the cases
relied on by the Crown support this assertion. The Court has addressed the solicitor-client privilege on numerous
occasions and repeatedly underlined its paramount significance, but never yet considered the nature, scope or
duration of the litigation privilege.

24        Thus, the Court explained in Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, and has since then reiterated,
that the solicitor-client privilege has over the years evolved from a rule of evidence to a rule of substantive law.
And the Court has consistently emphasized the breadth and primacy of the solicitor-client privilege: see, for
example, Geffen v. Goodman Estate, [1991] 2 S.C.R. 353; Smith v. Jones, [1999] 1 S.C.R. 455; R. v. McClure,
[2001] 1 S.C.R. 445, 2001 SCC 14; Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209,
2002 SCC 61; and Goodis v. Ontario (Ministry of Correctional Services), [2006] 2 S.C.R. 32, 2006 SCC 31. In an
oft-quoted passage, Major J., speaking for the Court, stated in McClure that ―solicitor-client privilege must be as
close to absolute as possible to ensure public confidence and retain relevance‖ (para. 35).

25       It is evident from the text and the context of these decisions, however, that they relate only to the legal
advice privilege, or solicitor-client privilege properly so called, and not to the litigation privilege as well.

26       Much has been said in these cases, and others, regarding the origin and rationale of the solicitor-client
privilege. The solicitor-client privilege has been firmly entrenched for centuries. It recognizes that the justice



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system depends for its vitality on full, free and frank communication between those who need legal advice and those
who are best able to provide it. Society has entrusted to lawyers the task of advancing their clients‘ cases with the
skill and expertise available only to those who are trained in the law. They alone can discharge these duties
effectively, but only if those who depend on them for counsel may consult with them in confidence. The resulting
confidential relationship between solicitor and client is a necessary and essential condition of the effective
administration of justice.

27        Litigation privilege, on the other hand, is not directed at, still less, restricted to, communications between
solicitor and client. It contemplates, as well, communications between a solicitor and third parties or, in the case of
an unrepresented litigant, between the litigant and third parties. Its object is to ensure the efficacy of the adversarial
process and not to promote the solicitor-client relationship. And to achieve this purpose, parties to litigation,
represented or not, must be left to prepare their contending positions in private, without adversarial interference and
without fear of premature disclosure.

28       R. J. Sharpe (now Sharpe J.A.) has explained particularly well the differences between litigation privilege
and solicitor-client privilege:

         It is crucially important to distinguish litigation privilege from solicitor-client privilege. There
         are, I suggest, at least three important differences between the two. First, solicitor-client privilege
         applies only to confidential communications between the client and his solicitor. Litigation
         privilege, on the other hand, applies to communications of a non-confidential nature between the
         solicitor and third parties and even includes material of a non-communicative nature. Secondly,
         solicitor-client privilege exists any time a client seeks legal advice from his solicitor whether or
         not litigation is involved. Litigation privilege, on the other hand, applies only in the context of
         litigation itself. Thirdly, and most important, the rationale for solicitor-client privilege is very
         different from that which underlies litigation privilege. This difference merits close attention. The
         interest which underlies the protection accorded communications between a client and a solicitor
         from disclosure is the interest of all citizens to have full and ready access to legal advice. If an
         individual cannot confide in a solicitor knowing that what is said will not be revealed, it will be
         difficult, if not impossible, for that individual to obtain proper candid legal advice.

         Litigation privilege, on the other hand, is geared directly to the process of litigation. Its purpose is
         not explained adequately by the protection afforded lawyer-client communications deemed
         necessary to allow clients to obtain legal advice, the interest protected by solicitor-client privilege.
         Its purpose is more particularly related to the needs of the adversarial trial process. Litigation
         privilege is based upon the need for a protected area to facilitate investigation and preparation of a
         case for trial by the adversarial advocate. In other words, litigation privilege aims to facilitate a
         process (namely, the adversary process), while solicitor-client privilege aims to protect a
         relationship (namely, the confidential relationship between a lawyer and a client).

         (―Claiming Privilege in the Discovery Process‖, in Special Lectures of the Law Society of Upper
         Canada (1984), 163, at pp. 164-65)

29       With the exception of Hodgkinson v. Simms (1988), 33 B.C.L.R. (2d) 129, a decision of the British
Columbia Court of Appeal, the decisions of appellate courts in this country have consistently found that litigation
privilege is based on a different rationale than solicitor-client privilege: Liquor Control Board of Ontario v. Lifford
Wine Agencies Ltd. (2005), 76 O.R. (3d) 401; Ontario (Attorney General) v. Ontario (Information and Privacy
Commission, Inquiry Officer) (2002), 62 O.R. (3d) 167 (―Big Canoe‖); College of Physicians & Surgeons (British
Columbia) v. British Columbia (Information & Privacy Commissioner) (2002), 9 B.C.L.R. (4th) 1, 2002 BCCA 665;
Gower v. Tolko Manitoba Inc. (2001), 196 D.L.R. (4th) 716, 2001 MBCA 11; Mitsui & Co. (Point Aconi) Ltd. v.
Jones Power Co. (2000), 188 N.S.R. (2d) 173, 2000 NSCA 96; General Accident Assurance Co. v. Chrusz (1999),
45 O.R. (3d) 321.

30      American and English authorities are to the same effect: see In re L. (A Minor), [1997] A.C. 16 (H.L.);
Three Rivers District Council v. Governor and Company of the Bank of England (No. 6), [2004] Q.B. 916, [2004]
EWCA Civ 218, and Hickman v. Taylor, 329 U.S. 495 (1947). In the United States communications with third


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parties and other materials prepared in anticipation of litigation are covered by the similar ―attorney work product‖
doctrine. This ―distinct rationale‖ theory is also supported by the majority of academics: Sharpe; J. Sopinka, S. N.
Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at pp. 745-46; D. M. Paciocco and L.
Stuesser, The Law of Evidence (3rd ed. 2002), at pp. 197-98; J.-C. Royer, La preuve civile (3rd ed. 2003), at pp. 868-
71; G. D. Watson and F. Au, ―Solicitor-Client Privilege and Litigation Privilege in Civil Litigation‖ (1998), 77 Can.
Bar Rev. 315. For the opposing view, see J. D. Wilson, ―Privilege in Experts‘ Working Papers‖ (1997), 76 Can.
Bar Rev. 346, and ―Privilege: Watson & Au (1998) 77 Can. Bar Rev. 346: REJOINDER: ‗It‘s Elementary My Dear
Watson‘‖ (1998), 77 Can. Bar Rev. 549.

31       Though conceptually distinct, litigation privilege and legal advice privilege serve a common cause: The
secure and effective administration of justice according to law. And they are complementary and not competing in
their operation. But treating litigation privilege and legal advice privilege as two branches of the same tree tends to
obscure the true nature of both.

32        Unlike the solicitor-client privilege, the litigation privilege arises and operates even in the absence of a
solicitor-client relationship, and it applies indiscriminately to all litigants, whether or not they are represented by
counsel: see Alberta (Treasury Branches) v. Ghermezian (1999), 242 A.R. 326, 1999 ABQB 407. A self-
represented litigant is no less in need of, and therefore entitled to, a ―zone‖ or ―chamber‖ of privacy. Another
important distinction leads to the same conclusion. Confidentiality, the sine qua non of the solicitor-client privilege,
is not an essential component of the litigation privilege. In preparing for trial, lawyers as a matter of course obtain
information from third parties who have no need nor any expectation of confidentiality; yet the litigation privilege
attaches nonetheless.

33      In short, the litigation privilege and the solicitor-client privilege are driven by different policy
considerations and generate different legal consequences.

34       The purpose of the litigation privilege, I repeat, is to create a ―zone of privacy‖ in relation to pending or
apprehended litigation. Once the litigation has ended, the privilege to which it gave rise has lost its specific and
concrete purpose — and therefore its justification. But to borrow a phrase, the litigation is not over until it is over: It
cannot be said to have ―terminated‖, in any meaningful sense of that term, where litigants or related parties remain
locked in what is essentially the same legal combat.

35      Except where such related litigation persists, there is no need and no reason to protect from discovery
anything that would have been subject to compellable disclosure but for the pending or apprehended proceedings
which provided its shield. Where the litigation has indeed ended, there is little room for concern lest opposing
counsel or their clients argue their case ―on wits borrowed from the adversary‖, to use the language of the U.S.
Supreme Court in Hickman, at p. 516.

36        I therefore agree with the majority in the Federal Court of Appeal and others who share their view that the
common law litigation privilege comes to an end, absent closely related proceedings, upon the termination of the
litigation that gave rise to the privilege: Lifford; Chrusz; Big Canoe; Boulianne v. Flynn, [1970] 3 O.R. 84 (H.C.J.);
Wujda v. Smith (1974), 49 D.L.R. (3d) 476 (Man. Q.B.); Meaney v. Busby (1977), 15 O.R. (2d) 71 (H.C.J.); Canada
Southern Petroleum Ltd. v. Amoco Canada Petroleum Co. (1995), 176 A.R. 134 (Q.B.). See also Sopinka,
Lederman and Bryant; Paciocco and Stuesser.

37        Thus, the principle ―once privileged, always privileged‖, so vital to the solicitor-client privilege, is foreign
to the litigation privilege. The litigation privilege, unlike the solicitor-client privilege, is neither absolute in scope
nor permanent in duration.

38        As mentioned earlier, however, the privilege may retain its purpose — and, therefore, its effect — where
the litigation that gave rise to the privilege has ended, but related litigation remains pending or may reasonably be
apprehended. In this regard, I agree with Pelletier J.A. regarding ―the possibility of defining . . . litigation more
broadly than the particular proceeding which gave rise to the claim‖ (para. 89); see Ed Miller Sales & Rentals Ltd. v.
Caterpillar Tractor Co. (1988), 90 A.R. 323 (C.A.).




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39       At a minimum, it seems to me, this enlarged definition of ―litigation‖ includes separate proceedings that
involve the same or related parties and arise from the same or a related cause of action (or ―juridical source‖).
Proceedings that raise issues common to the initial action and share its essential purpose would in my view qualify
as well.

40       As a matter of principle, the boundaries of this extended meaning of ―litigation‖ are limited by the purpose
for which litigation privilege is granted, namely, as mentioned, ―the need for a protected area to facilitate
investigation and preparation of a case for trial by the adversarial advocate‖ (Sharpe, at p. 165). This purpose, in the
context of s. 23 of the Access Act must take into account the nature of much government litigation. In the 1980s, for
example, the federal government confronted litigation across Canada arising out of its urea formaldehyde insulation
program. The parties were different and the specifics of each claim were different but the underlying liability issues
were common across the country.

41         In such a situation, the advocate‘s ―protected area‖ would extend to work related to those underlying
liability issues even after some but not all of the individual claims had been disposed of. There were common issues
and the causes of action, in terms of the advocate‘s work product, were closely related. When the claims belonging
to that particular group of causes of action had all been dealt with, however, litigation privilege would have been
exhausted, even if subsequent disclosure of the files would reveal aspects of government operations or general
litigation strategies that the government would prefer to keep from its former adversaries or other requesters under
the Access Act. Similar issues may arise in the private sector, for example in the case of a manufacturer dealing with
related product liability claims. In each case, the duration and extent of the litigation privilege are circumscribed by
its underlying purpose, namely the protection essential to the proper operation of the adversarial process.

                                                          IV

42        In this case, the respondent claims damages from the federal government for fraud, conspiracy, perjury and
abuse of prosecutorial powers. Pursuant to the Access Act, he demands the disclosure to him of all documents
relating to the Crown‘s conduct of its proceedings against him. The source of those proceedings is the alleged
pollution and breach of reporting requirements by the respondent and his company.

43       The Minister‘s claim of privilege thus concerns documents that were prepared for the dominant purpose of
a criminal prosecution relating to environmental matters and reporting requirements. The respondent‘s action, on
the other hand, seeks civil redress for the manner in which the government conducted that prosecution. It springs
from a different juridical source and is in that sense unrelated to the litigation of which the privilege claimed was
born.

44      The litigation privilege would not in any event protect from disclosure evidence of the claimant party‘s
abuse of process or similar blameworthy conduct. It is not a black hole from which evidence of one‘s own
misconduct can never be exposed to the light of day.

45        Even where the materials sought would otherwise be subject to litigation privilege, the party seeking their
disclosure may be granted access to them upon a prima facie showing of actionable misconduct by the other party in
relation to the proceedings with respect to which litigation privilege is claimed. Whether privilege is claimed in the
originating or in related litigation, the court may review the materials to determine whether their disclosure should
be ordered on this ground.

46        Finally, in the Court of Appeal, Létourneau J.A., dissenting on the cross-appeal, found that the
government‘s status as a ―recurring litigant‖ could justify a litigation privilege that outlives its common law
equivalent. In his view, the ―[a]utomatic and uncontrolled access to the government lawyer‘s brief, once the first
litigation is over, may impede the possibility of effectively adopting and implementing [general policies and
strategies]‖ (para. 42).

47      I hesitate to characterize as ―[a]utomatic and uncontrolled‖ access to the government lawyer‘s brief once
the subject proceedings have ended. In my respectful view, access will in fact be neither automatic nor
uncontrolled.



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48       First, as mentioned earlier, it will not be automatic because all subsequent litigation will remain subject to a
claim of privilege if it involves the same or related parties and the same or related source. It will fall within the
protective orbit of the same litigation defined broadly.

49       Second, access will not be uncontrolled because many of the documents in the lawyer‘s brief will, in any
event, remain exempt from disclosure by virtue of the legal advice privilege. In practice, a lawyer‘s brief normally
includes materials covered by the solicitor-client privilege because of their evident connection to legal advice sought
or given in the course of, or in relation to, the originating proceedings. The distinction between the solicitor-client
privilege and the litigation privilege does not preclude their potential overlap in a litigation context.

50       Commensurate with its importance, the solicitor-client privilege has over the years been broadly interpreted
by this Court. In that light, anything in a litigation file that falls within the solicitor-client privilege will remain
clearly and forever privileged.

51       I hasten to add that the Access Act is a statutory scheme aimed at promoting the disclosure of information in
the government‘s possession. Nothing in the Act suggests that Parliament intended by its adoption to extend the
lifespan of the litigation privilege when a member of the public seeks access to government documents.

52        The language of s. 23 is, moreover, permissive. It provides that the Minister may invoke the privilege.
This permissive language promotes disclosure by encouraging the Minister to refrain from invoking the privilege
unless it is thought necessary to do so in the public interest. And it thus supports an interpretation that favours more
government disclosure, not less.

53        The extended definition of litigation, as I indicated earlier, applies no less to the government than to private
litigants. As a result of the Access Act, however, its protection may prove less effective in practice. The reason is
this. Like private parties, the government may invoke the litigation privilege only when the original or extended
proceedings are pending or apprehended. Unlike private parties, however, the government may be required under
the terms of the Access Act to disclose information once the original proceedings have ended and related
proceedings are neither pending nor apprehended. A mere hypothetical possibility that related proceedings may in
the future be instituted does not suffice. Should that possibility materialize — should related proceedings in fact
later be instituted — the government may well have been required in the interim, in virtue of the Access Act, to
disclose information that would have otherwise been privileged under the extended definition of litigation. This is a
matter of legislative choice and not judicial policy. It flows inexorably from Parliament‘s decision to adopt the
Access Act. Other provisions of the Access Act suggest, moreover, that Parliament has in fact recognized this
consequence of the Act on the government as litigator, potential litigant and guardian of personal safety and public
security.

54        For example, pursuant to s. 16(1)(b) and (c), the government may refuse to disclose any record that
contains information relating to investigative techniques or plans for specific lawful investigations or information
the disclosure of which could reasonably be expected to be injurious to law enforcement or the conduct of lawful
investigations. And, pursuant to s. 17, the government may refuse to disclose any information the disclosure of
which could reasonably be expected to threaten the safety of individuals. The special status of the government as a
―recurring litigant‖ is more properly addressed by these provisions and other legislated solutions. In addition, as
mentioned earlier, the nature of government litigation may be relevant when determining the boundaries of related
litigation where multiple proceedings involving the government relate to common issues with closely related causes
of action. But a wholesale expansion of the litigation privilege is neither necessary nor desirable.

55        Finally, we should not disregard the origins of this dispute between the respondent and the Minister. It
arose in the context of a criminal prosecution by the Crown against the respondent. In criminal proceedings, the
accused‘s right to discovery is constitutionally guaranteed. The prosecution is obliged under Stinchcombe to make
available to the accused all relevant information if there is a ―reasonable possibility that the withholding of
information will impair the right of the accused to make full answer and defence‖ (p. 340). This added burden of
disclosure is placed on the Crown in light of its overwhelming advantage in resources and the corresponding risk
that the accused might otherwise be unfairly disadvantaged.




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56         I am not unmindful of the fact that Stinchcombe does not require the prosecution to disclose everything in
its file, privileged or not. Materials that might in civil proceedings be covered by one privilege or another will
nonetheless be subject, in the criminal context, to the ―innocence at stake‖ exception — at the very least: see
McClure. In criminal proceedings, as the Court noted in Stinchcombe:

         The trial judge might also, in certain circumstances, conclude that the recognition of an existing
         privilege does not constitute a reasonable limit on the constitutional right to make full answer and
         defence and thus require disclosure in spite of the law of privilege. [p. 340]

57       On any view of the matter, I would think it incongruous if the litigation privilege were found in civil
proceedings to insulate the Crown from the disclosure it was bound but failed to provide in criminal proceedings
that have ended.

                                                            V

58      The result in this case is dictated by a finding that the litigation privilege expires when the litigation ends. I
wish nonetheless to add a few words regarding its birth.

59       The question has arisen whether the litigation privilege should attach to documents created for the
substantial purpose of litigation, the dominant purpose of litigation or the sole purpose of litigation. The dominant
purpose test was chosen from this spectrum by the House of Lords in Waugh v. British Railways Board, [1979] 2 All
E.R. 1169. It has been adopted in this country as well: Davies v. Harrington (1980), 115 D.L.R. (3d) 347
(N.S.C.A.); Voth Bros. Construction (1974) Ltd. v. North Vancouver School District No. 44 Board of School
Trustees (1981), 29 B.C.L.R. 114 (C.A.); McCaig v. Trentowsky (1983), 148 D.L.R. (3d) 724 (N.B.C.A.); Nova, an
Alberta Corporation v. Guelph Engineering Co. (1984), 5 D.L.R. (4th) 755 (Alta. C.A.); Ed Miller Sales & Rentals;
Chrusz; Lifford; Mitsui; College of Physicians; Gower.

60        I see no reason to depart from the dominant purpose test. Though it provides narrower protection than
would a substantial purpose test, the dominant purpose standard appears to me consistent with the notion that the
litigation privilege should be viewed as a limited exception to the principle of full disclosure and not as an equal
partner of the broadly interpreted solicitor-client privilege. The dominant purpose test is more compatible with the
contemporary trend favouring increased disclosure. As Royer has noted, it is hardly surprising that modern
legislation and case law

         [TRANSLATION] which increasingly attenuate the purely accusatory and adversarial nature of
         the civil trial, tend to limit the scope of this privilege [that is, the litigation privilege]. [p. 869]

Or, as Carthy J.A. stated in Chrusz:

         The modern trend is in the direction of complete discovery and there is no apparent reason to
         inhibit that trend so long as counsel is left with sufficient flexibility to adequately serve the
         litigation client. [p. 331]

61        While the solicitor-client privilege has been strengthened, reaffirmed and elevated in recent years, the
litigation privilege has had, on the contrary, to weather the trend toward mutual and reciprocal disclosure which is
the hallmark of the judicial process. In this context, it would be incongruous to reverse that trend and revert to a
substantial purpose test.

62       A related issue is whether the litigation privilege attaches to documents gathered or copied — but not
created — for the purpose of litigation. This issue arose in Hodgkinson, where a majority of the British Columbia
Court of Appeal, relying on Lyell v. Kennedy (1884), 27 Ch. D. 1 (C.A.), concluded that copies of public documents
gathered by a solicitor were privileged. McEachern C.J.B.C. stated:

                   It is my conclusion that the law has always been, and, in my view, should continue to be,
         that in circumstances such as these, where a lawyer exercising legal knowledge, skill, judgment



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         and industry has assembled a collection of relevant copy documents for his brief for the purpose of
         advising on or conducting anticipated or pending litigation he is entitled, indeed required, unless
         the client consents, to claim privilege for such collection and to refuse production. [p. 142]

63       This approach was rejected by the majority of the Ontario Court of Appeal in Chrusz.

64       The conflict of appellate opinion on this issue should be left to be resolved in a case where it is explicitly
raised and fully argued. Extending the privilege to the gathering of documents resulting from research or the
exercise of skill and knowledge does appear to be more consistent with the rationale and purpose of the litigation
privilege. That being said, I take care to mention that assigning such a broad scope to the litigation privilege is not
intended to automatically exempt from disclosure anything that would have been subject to discovery if it had not
been remitted to counsel or placed in one‘s own litigation files. Nor should it have that effect.

                                                          VI

65       For all of these reasons, I would dismiss the appeal. The respondent shall be awarded his disbursements in
this Court.…

                                                                                                     Appeal dismissed




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                                                    Peter Kiewit Sons Co. v. B.C. Hydro

British Columbia Supreme Court
Vancouver, B.C.

Judgment: March 26, 1982

MCEACHERN C.J.: - The Plaintiffs entered into a contract with the Defendant British Columbia Hydro & Power
Authority (B.C. Hydro) for the construction of Segment 5 of a transmission line comprising 189 steel towers
between Ringsvale and the Giant Mascot Mine. This project was part of the Mica Creek transmission line.

         At the same time B.C. Hydro had let contracts for other segments of the same transmission line, and for
portions of the Kootenay Canal transmission line.

         It was a term of the Plaintiffs‘ contract that B.C. Hydro would furnish the required structural steel for this
project on a timely basis at its Kidd Steelyard in Richmond, B.C. The Plaintiffs contracted with the Defendant
Columbia Hydro Constructors Ltd. that the latter would furnish all labour required by the Plaintiffs for the
performance of their contract. The contractors on the other projects mentioned above had similar contractual
arrangements for the timely supply of steel and labour for their projects.

          The Plaintiffs and the contractors on the other projects employed a common trucking contractor, Pe Ben
Indus-tries Company Limited (Pe Ben) to take delivery, at the Kidd Steelyard, of any steel the contractors required
for transportation to various locations.

          The Plaintiffs‘ job did not go well, and one of the principal allegations against B.C. Hydro is that it did not
properly manage the supply of steel. Amongst other things, the Plaintiffs say steel was not available as required; that
steel intended for one contract was diverted to other jobs with the squeaky contractor getting the steel; and other
shortcomings on the part of B.C. Hydro. The Defendant Columbia Hydro Constructors Ltd. is not directly involved
in this application.

         The foregoing is a brief but sufficient description of the scope of one part of this case.

         It is clear that these were major projects requiring much planning and organization. The Plaintiffs claim
substantial damages on a number of grounds for the failure of the Defendants properly to supply steel, designs, and
labour; and there are also claims in deceit and negligent misstatement. On this application I am concerned only with
the question of steel.

          In my view it is appropriate to describe this case as major litigation of a type which is not uncommon in our
courts. I do not suggest that this case is necessarily comparable to Morrison-Knudsen Co. Inc. et al. v. B.C. Hydro et
al., (1978] 4 W.W.R. 193 (C.A.) (which lasted over 400 days at trial), but the conduct of this case is a very
substantial undertaking. It is estimated by counsel to require 20 days for trial.

         B.C. Hydro has furnished about 30,000 documents for inspection by the Plaintiffs and, just before the
hearing of this motion, B.C. Hydro tendered a further 12-page inventory of documents it is prepared to make
available for inspection.

         The Plaintiffs now seek an order:

         ―(1)     pursuant to Rule 27(10) of the Rules of Court that the Defendant, British Columbia
         Hydro and Power Authority produce the documents referred to in the Schedule to this Notice of
         Motion for inspection and copying by the Plaintiff at such time, place and manner as the Court
         thinks just.




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         (2)      pursuant to Rule 27(4) of the Rules of Court that the Defendant, British Columbia Hydro
         and Power Authority deliver an Affidavit stating whether the documents or class of documents
         specified or described in the Schedule to this Notice of motion is or has been in the possession or
         control of that Defendant and, if not then in the possession or control of the Defendant, when that
         Defendant parted with it and what has become of it.‖

         Attached to these Reasons is the Schedule to the Notice of Motion which sets out what the Plaintiffs seek
on both branches of its application.

          One of the matters in issue between these parties is the extent to which the Plaintiffs may require
production and inspection of documents relating to this and other contracts which were underway at the same time
as the contract in question. The Plaintiffs say documents relating to these contracts may contain statements
(described, hopefully, by counsel for the Plaintiffs as ―confessions‖) which may assist the Plaintiffs to prove their
case or, possibly, impeach the case of the Defendants.

         B.C. Hydro says it has now produced all documents relating to the operation of the Kidd Steelyard in
connection with this and the other contracts, including Pe Ben‘s ―pullsheets‖ which record all steel ordered for the
project and removed from the Kidd Steelyard. B.C. Hydro declines to produce all its other ―mountains of
documents‖ which relate to various phases of this and other contracts.

          B.C. Hydro says it has complied with the requirements of Paragraphs IV, VI, and VII of the Schedule, and
will produce bar graphs of progress on all its transmission line contracts, but it objects to a search of everything it
has relating to the Mica Creek and Kootenay Canal transmission lines in order to see if anything which may possibly
be relevant is resting there. This, I am sure, would be a very extensive undertaking; and no likelihood has been
established that anything worthwhile will be found.

         The Plaintiffs rely on The Compagnie Financiere et Commerciale du Pacifique v. The Peruvian Guano
Company (1882), 11 Q.B.D. 55 (C.A.), which has been followed and applied in numerous cases in this Court for
many years. The Rule the Court was there considering required discovery of ―a document relating to any matter in
question in the action.‖ Our Present Rule 26(1) is in practically the same terms.

          The Peruvian Guano case, supra, (as it is usually called) indicates (at page 56) that the Plaintiffs made an
affidavit of documents in the usual form, in which they disclosed, inter alia, their minute-book. The Defendant
brought an application for a further affidavit of the following documents, which were described in the minute-book:

         ― .......... first, drafts of arrangement between the Peruvian Guano Company, and the plaintiff
         company, referred to in the board minutes of the plaintiff company, dated the 28th of September,
         1881; secondly, the letter and two telegrams received by the plaintiffs from Mr. Adams, referred to
         in the board minutes of the plaintiff company, dated the 2nd of November, 1881; thirdly, two
         further drafts relating to the form of communication to be made, and the letter from M. de
         Germiny to M. Homberg, respectively referred to in the board minutes, dated the 3rd of
         November, 1881; fourthly, a letter addressed to Mr. Adam, referred to in the board minutes, dated
         the 8th of November, 1881; and, fifthly, several letters written from London by Mr. Adam to the
         plaintiff company, or directors thereof, and the several letters and telegrams sent by the plaintiff
         company, or directors thereof, to Mr. Adam, as referred to in the board minutes, dated the 16th of
         November, 1881. ―

          The Master declined to order a further affidavit. Pearson, J., sitting in chambers, made an order as to the
first class of documents only. An appeal to the Queen‘s Bench Division was dismissed, and a further appeal was
taken to the Court of Appeal.

         Baggallay, L.J, at page 59 said:

         ―I assent to the suggestion made by Brett, L.J., in the course of the argument, that a document,
         which, it is not unreasonable to suppose, may tend either to advance the case of the party seeking



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         discovery, or to damage the case of his adversary, should be regarded as a document relating to a
         matter in question in the action. I proceed to apply these tests to the documents in respect of which
         this appeal is brought. As regards No. 3, the objection taken by the plaintiffs, that it does not
         appear from the affidavit already sworn that it is in the possession or power of the plaintiffs, must
         I think prevail; but as regards Nos. 2, 4 and 5, I am of opinion that it appears from the minutes that
         they are in the possession or power of the plaintiffs, and that it is not unreasonable to suppose that
         they may contain information, directly or indirectly, enabling the defendants to advance their own
         case or to damage the case of their adversaries ..........‖

         Brett, L.J. in the locus classicus on this question said at page 63:

         ―It seems to me that every document relates to the matters in question in the action, which not only
         would be evidence upon any issue, but also which, it is reasonable to suppose, contains
         information which may--not which must--either directly or indirectly enable the party requiring
         the affidavit either to advance his own case or to damage the case of his adversary. I have put in
         the words ‗either directly or indirectly,‘ because, as it seems to me, a document can properly be
         said to contain information which may enable the party requiring the affidavit either to advance
         his own case or to damage the case of his adversary, if it is a document which may fairly lead him
         to a train of inquiry, which may have either of these two consequences..........‖

         It appears from the foregoing that the documents in question in the Peruvian Guano case were probably not
as extensive as the record of pleadings in this case.

        It also appears that a literal reading of Rule 26(1) and the application of the Peruvian Guano case leads
inexorably to the conclusion that the Plaintiffs should succeed on this application.

         I hesitate to disturb an authority as ancient and well-established as the Peruvian Guano case which has
stood unchallenged in Britain and in this province for 100 years. But Lord Diplock said that all judicial reasoning
must be considered ―secundum subjectam materiam‖ (Mutual Life and Citizens‟ Assurance Co. Ltd. et al. v. Evatt,
[1971] 1 All E.R. 150 at 161). The Rules of Court are our servants, not our masters.

         I respectfully decline to follow the Peruvian Guano case, supra, or slavishly to apply Rule 26(1) in a case
such as this, where thousands or possibly hundreds of thousands of documents of only possible relevance are in
question. I do not intend to suggest, however, that the Peruvian Guano case does not correctly state the law in most
cases. That question does not arise for consideration here.

         It does not follow that this motion should be dismissed because, notwithstanding the foregoing, every
reasonable effort must be made to enable the Plaintiffs to locate any documents which may assist the parties to
ascertain the truth. What is not permissible, or reasonable, in my view, is to require a party, in a case such as this, to
incur enormous expense in what may be a futile search for something which may not exist.

         One solution would be to permit the most extensive possible search and inquiry to be made at the Plaintiffs‘
nonrecoverable expense; or alternatively, to require the Plaintiffs to post security for the cost of the search, with the
cost thereof being assessed ultimately by the Court when the results of both the search and the action are known.

         Another suggestion might be to try an issue, if one could be defined, which might resolve this question
without the kind of search which the Plaintiffs‘ motion requires. Rule 26(15) provides for such an order. In this
connection the Plaintiffs‘ claim is that they did not directly, or by their agent Pe Ben, obtain steel in the manner
required by the contract. If that question could be resolved objectively, it might not be necessary to go any further. I
suspect, however, that the Plaintiffs would wish to have the information they seek on the trial of even a limited
issue.

         I would give consideration to any reasonable proposal the parties may make regarding the foregoing. If
they cannot agree, then, in order to make an effective order, I would direct only that the Plaintiffs may apply again
for an affidavit, and subsequent inspection, of documents which may be uncovered by a search of greatly reduced



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scope. To put it differently, the Plaintiffs must choose a smaller target within B.C. Hydro. As is well known, B.C.
Hydro is the largest enterprise in the Province, and the Plaintiffs must define a more manageable area for enquiry. In
addition, the Plaintiffs must establish a prima facie case that something relevant will be uncovered before a further
affidavit and further inspection will be ordered.

         Upon any such further application I would expect a senior responsible officer of B.C. Hydro to verify on
oath the extent of its production to date, the magnitude and estimated expense of the search required to satisfy the
further production which is being sought, and such further circum-stances as may be necessary to enable the Court
to decide whether a further search will be fruitful. In addition, I would expect such deponent to verify, upon grounds
which are stated, what his belief is regarding the likelihood of further relevant documents being uncovered.

          I hesitate to make pronouncements such as this which carry the risk of being misunderstood. I therefore
wish it to be known that what I say in these Reasons applies particularly to discovery of documents in cases of this
kind. The production of documents made by B.C. Hydro up to this stage is entirely appropriate, and,
notwithstanding anything I have said, I would have ordered production at least of all the Defendant‘s documents
relating to the operation of the Kidd Steelyard--for all contractors. I do not, however, foreclose the right of any party
to major litigation to apply at any stage for directions regarding discovery of documents. 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.




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                                                                     Desgagne v. Yuen et al.

British Columbia Supreme Court
Vancouver, BC
Judgment: May 8 & 9, 2006

Myers J.

[1]          This is a motion by the defendants seeking production of electronic evidence. Although brought under
Rules 26, 30, 46(1) and 57, in argument counsel for the defendants relied almost exclusively on Rule 26.

[2]         The defendants seek production of the hard drive from the plaintiff‘s home computer for analysis by an
expert. The defendants also seek production of the plaintiff‘s Palm Pilot and video game unit.

[3]          Apart from digital photos that might be stored in electronic form, and therefore subsumed within the
motion for production of electronic evidence, the defendants also seek production of hard copies of the plaintiff‘s
photos taken after the accident.

[4]           I describe what the plaintiff is seeking, and why, in greater detail in the following section. Before
doing so, I set out the background of the motion.

[5]          The plaintiff claims damages for personal injury suffered as a result of a collision when she was riding
her bicycle.

[6]         As a result of the collision the plaintiff claims that she has suffered brain injury, chronic pain and
fibromyalgia, overwhelming fatigue, and soft tissue injuries. She alleges impairments in her cognitive abilities
including memory, concentration and attention. She also alleges disabling fatigue, low mood, significant pain,
changes in her vision and tinnitus. She says that she has disordered sleep.

[7]          The plaintiff alleges that as a result of her symptoms she can no longer work at her former job as a
systems analyst at Telus. In the last four years she has not attempted to return to work. She relies on medical
reports indicating that she is permanently disabled from competitive employment, even on a part time basis. She is
only 44 years old and therefore her claim for future income loss will be substantial.

THE GROUNDS FOR SEEKING THE EVIDENCE

[8]          The type of information sought from the hard drive can be broadly categorized into three separate
categories. The rationale of the defendants for seeking production is different for each.

         (a)     The first category is the actual document files (including documents that appear deleted)
                  contained on the drive. The defendants seek this information because, they say, the
                  plaintiff may have written to friends describing her condition as better than she has
                  testified to in discoveries. In other words, they hope to obtain admissions against
                  interest.

         (b)     The second category of information is the metadata relating to computer usage. Each file
                  on a computer has metadata associated with it. This metadata logs information such as
                  the time the file was created, which user was logged on to the system when the file was
                  created, and how long the file was open. The defendants wish to obtain this information
                  in order to enable them to assess the plaintiff‘s computer functionality after the accident.

         (c)     The third category is the history of the web sites the plaintiff has visited. The defendants
                  allege that the plaintiff may be exaggerating her symptoms and level of impairment; she
                  may be representing herself to physicians and other examiners as suffering from a post-



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                     traumatic brain injury and psychological trauma, having learned the diagnostic criteria of
                     these from external sources. The defendants want to review the web sites the plaintiff has
                     visited to see whether she may have obtained information on brain injury from those
                     sites.

[9]           The ground for seeking the Palm Pilot is different. The plaintiff says that as a result of the accident she
requires a Palm Pilot as a memory aid. One of the plaintiff‘s experts has factored replacement devices into his cost
of future care analysis. The defendants say that the plaintiff‘s evidence on her use of the Palm Pilot is different in
her discovery from that given in a statement to a medical expert. The defendants seek production of the Palm Pilot
in order to determine the extent of its usage by the plaintiff and, therefore, to determine whether she will use one in
the future.

[10]         The game unit is sought by the defendants for similar reasons as the metadata, namely to show the usage
the plaintiff has made of the unit in order to assess her cognitive abilities post-accident.

[11]        Finally, the defendants seek production of the hard copies of the plaintiff‘s post-accident photos because,
they say, they are relevant to showing what quality of life the plaintiff is able to enjoy. In particular, the defendants
want to see photos from a vacation which the plaintiff took after the accident.

[12]        The mechanics proposed by the defendants for the delivery of the electronic evidence is as follows. The
hard drive, game unit and Palm Pilot would be delivered to the defendants' expert, who would prepare reports
showing the information being sought. Those reports would be delivered to the plaintiff‘s counsel, who would
review them for privilege. The reports and data, less anything in respect of which privilege was being claimed,
would be disclosed to defence counsel in the form of a supplementary list of documents.

[13]        When in the course of argument I raised the concern that the defendants' expert would have access to
privileged information before it was reviewed by plaintiff‘s counsel, Ms. Stevens, counsel for the defendants, said
that she would be content for the electronic evidence to be handled by an expert chosen by the plaintiff. I will
therefore base this decision on that premise.

ANALYSIS

[14]         Although I analyze each of the elements of the defendants' motion discretely, I cannot help but observe
at the outset the breadth of what is being sought when looked at as a whole. The defendants are seeking disclosure
of all available information to show virtually every element of the plaintiff‘s activities for all her waking hours. In a
sense the disclosure would be even more intrusive than that obtained from an electronic monitoring bracelet, which
only records physical location.

1.     The Hard Drive

         (a)     The Electronic Documents

[15]        The plaintiff says that the hard drive has been examined by her former counsel, and all relevant
documents contained on it have been disclosed. Therefore the order being sought would allow the defendants to
search through the hard drive, as if it were a filing cabinet, and to make their own assessment as to what is relevant
and what is not. The plaintiff also argues that the production of the information sought would violate the privacy
rights of her friends, who have access to her computer from time to time.

[16]        A similar application was brought in Park v. Mullen, 2005 BCSC 1813. In that case, Dorgan J. referred
to the Court of Appeal‘s decision in Privest Properties Ltd. v. W. R. Grace & Co. - Conn (1992), 74 B.C.L.R. (2d)
353 (C.A.), where counsel for the plaintiff sought access to a document repository set up by the defendant for the
purposes of litigation in the United States because issues in the U.S. litigation and the Canadian litigation
overlapped. In that case, after reviewing Rule 26, and the duties imposed by it, Southin J.A. stated:




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         But these rules do not empower a judge to require a party to give access to his opponent to
         documents which are neither in his list nor in an affidavit required to be made under sub-rule 4 nor
         referred to in one of the documents listed in sub-rule 8.

         Sub-rule 10 confers no power to make the order under appeal which is really authorization for a
         search.

         If the court had power to make this order then it would also have the power to permit a litigant
         access to all places in which his opponent might keep documents to see if there is there anything
         "relating to any matter in question".

         It would require much different rules to give the court such an extraordinary invasive power in
         circumstances such as these. However, if the fact which the respondents at one time wrongly
         believed to exist - that is to say, a deliberate concealment of documents - was proven to exist, it
         may be that an order of the sort made here could be made for the purpose of redressing dishonesty
         in the course of litigation. That issue can be determined if, as and when it arises. (paras. 37-40).

[17]        Dorgan J. found that the request for the hard drive was equivalent to what was sought in the Privest
Properties case, and denied the defendant‘s motion for its production. With the exception of the defendants'
argument regarding ―deleted‖ documents (which I discuss below), there are no facts in this case which meaningfully
distinguish it from Park. I am bound to follow that decision and also agree with it.

[18]       Furthermore, there is no evidence that the files contain statements as to the plaintiff‘s condition or
health. The files are being sought because admissions may have been made.

[19]        Former counsel for the plaintiff visited the plaintiff‘s home, examined the documents on her computer,
and advised counsel for the defendants that nothing was found. If the documents being sought were hard copies, in
the ordinary case that would be the end of the matter. I do not think the fact that the defendants are seeking
electronic evidence should make a difference.

[20]        It is true that documents contained in electronic form present new challenges. That does not mean,
however, that the Court should lose sight of the underlying principles regarding document production. For the
purposes of this part of the motion (as opposed to the request for the metadata, which I discuss below) the
documents stand in no different light than paper documents, and the hard drive is the digital equivalent to a filing
cabinet or document repository. A request to be able to search a party‘s filing cabinets in the hopes that there might
be found a document in which an admission against interest is made would clearly not be allowed. Its digital
equivalent should also not be allowed.

[21]        The foregoing should not be taken to say that hard drives should never be ordered to be produced so that
a party may have access to electronic documents. But different rules and principles govern those situations, such as
those pertaining to the requirements of obtaining an Anton Piller order.

[22]        The aspect of the defendants' argument not addressed by Privest Properties and Park is the claim that
turning the hard drive over to a computer expert will enable the retrieval of deleted documents. In this regard, the
analogy to a filing cabinet is less apt, as only electronic storage devices retain a document‘s data after it appears it
has been ―deleted‖.

[23]        There is no allegation that the plaintiff deleted files (i.e., documents) from her computer with an
improper motive or purpose. Rather, any deletions were made in the ordinary course. The deleted files are being
sought for the same rationale as the files which were not deleted, namely that they might contain possible admissions
against interest. As I stated above, the existence of files that contain such admissions is speculative with respect to
the documents which have not been deleted. It is more so with respect to deleted files. I do not think that the
defendants should be given access to the plaintiff‘s hard drive under these circumstances.




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[24]        In addition to what I have outlined in this section, I also rely on my reasoning in the following section
regarding the metadata at para. 40.

[25]        Accordingly, this part of the motion is dismissed.

          (b)    The Metadata

[26]         The request for the metadata stands in a different light. In applying for the metadata, it is not the
contents of the documents that the defendants are seeking, rather it is information which shows the use to which the
plaintiff puts her computer. The defendants wish to obtain this information in order to enable them to assess the
plaintiff‘s computer functionality after the accident. This is not, therefore, a situation where there exists a repository
of documents some of which might be relevant and some not, to which a party wants to gain access. At the level of
the metadata, if the defendants are correct, all of the recorded information would be relevant. This issue therefore
requires separate analysis from the preceding one.

[27]        The first question to be addressed is whether the metadata is a document. The plaintiff does not appear
to take issue with the defendants' position that the metadata is a document.

[28]        The definition of document in the Rules of Court is given an expansive meaning by Rule 1(8), which
states:

          'document' has an extended meaning and includes a photograph, film, recording of sound, any
          record of a permanent or semi-permanent character and any information recorded or stored by
          means of any device.

[29]         The information being sought does not fit the ordinary or intuitive concept of a document, electronic or
otherwise. What is being sought by the defendants is a report of recorded data (i.e., the metadata) that is generated
by computer software. That data is not something created by the user, but it is based on what the user does with her
software. It is not something that has content in the same sense as a document file generated by the user, for
example, a word processing document or spreadsheet. Nor is it something which is printed out or emailed in the
ordinary course. The assistance of an expert is required to generate the metadata report. In spite of this, it appears
clear that the metadata is ―information recorded or stored by means of [a] device‖ and is therefore a document under
Rule 1(8).

[30]        Should the metadata be produced? Once again, Park is instructive. While the term ―metadata‖ was not
used in the Judgment, the motion in Park appears to have been cast in nearly identical terms to the case at bar. The
defendants in that case applied under Rule 26 for, among other things, the production of records of the frequency
and duration of computer use.

[31]        Dorgan J. refused to order production of the data, finding it had limited, if any, probative value. She
stated:

          I am satisfied that the defendant's request is entirely too broad. The application is based on the
          premise that there is some way to delve into a multi-user computer and extract from it information
          relevant to an issue at trial. The defendant offers no plausible evidence or submission relating to
          how such evidence might be used or interpreted by the triers of fact. I fail to see how the types of
          documents requested would provide any measure, let alone an objective measure, of the plaintiff's
          cognitive functioning. Evidence which goes to the plaintiff's level of cognitive functioning may
          be gained by an assessment of the plaintiff by those who are expert in the field, or by the
          examination at trial of witnesses, including the plaintiff. The types of documents the defendant
          seeks would, in my view, have little if any probative value in that context. I simply do not see
          how the types of documents sought would help the defendant advance his case or destroy the
          plaintiff's case. (Para. 22).




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[32]         While the defendants acknowledge that Park is a case very similar to the one at bar, they say the above
reasoning is distinguishable because of the evidence from their computer expert filed in this motion. The
defendants' computer expert provided evidence of what information can be collected from a hard drive and how it
can be collected. But he did not, nor could he, attest to the probative value of that information (the plaintiff‘s usage
patterns and daily time spent on the computer), to an assessment of the plaintiff‘s sleep patterns, level of functioning
and ability to use a computer or her ability to focus, concentrate, reason, manipulate images and data, and stay on
task. That could only be attested to by a medical or other appropriate expert. The medical experts for both the
plaintiff and defendants include a psychiatrist, occupational therapist, psychologist and neurologist. None of them
suggested in their reports that the plaintiff‘s computer metadata would assist in assessing her cognitive functioning
or ability to work, nor did they swear an affidavit to that effect.

[33]         The defendants say that no such medical evidence is needed. Ms. Stevens submitted that it is clear that
the information would be of assistance to cross-examining the plaintiff on her use of the computer and that it
therefore meets the test of relevance for the purposes of discovery. But that begs the same question as dealt with in
the prior paragraph, namely the probative value of such questioning. Once again, in the absence of further expert
evidence, I cannot find that such questioning would be relevant. For example, it is not at all apparent to me how a
series of questions as to how long particular computer files may have been open on the plaintiff‘s computer would
assist in elucidating the issue of cognitive ability or ability to work on a computer. This is in part because – as was
attested to by the plaintiff‘s expert - how long a file was opened may bear no relation to how much work was done
on it during the time it was opened: the plaintiff could have had a file open and left it open to do other things.

[34]        Accordingly I find that the defendants have not demonstrated that the metadata is relevant.

[35]         That is sufficient to dismiss this portion of the motion, but even if I were able to find that the metadata
had some marginal probative value I would reach the same result. It is true that the test of relevance for the
purposes of discovery is extremely broad. Nevertheless the Courts have used common sense in determining the
permissible scope of discovery. In Peter Kiewit Sons Co. of Canada Ltd. v. British Columbia Hydro & Power
Authority (1982), 36 B.C.L.R. 58 (S.C.), McEachern C.J. held that Rule 26 should not be slavishly applied in a case
of major litigation. There, although the defendant had already furnished some 30,000 documents for inspection, the
plaintiff sought an additional order for production of documents relating to the defendant‘s other contracts.
McEachern C.J. acknowledged that on a literal reading of Rule 26(1) and the application of The Compagnie
Financiere et. Commerciale du Pacifique v. The Peruvian Guano Company (1882), 11 Q.B.D. 55 (C.A.), the
plaintiff would succeed. However, he went on to state at para. 22 to 23:

         I respectfully decline to follow the Peruvian Guano case, supra, or slavishly to apply R. 26(1) in
         a case such as this, where thousands or possibly hundreds of thousands of documents of only
         possible relevance are in question. I do not intend to suggest, however, that the Peruvian Guano
         case does not correctly state the law in most cases. That question does not arise for consideration
         here.

         It does not follow that this motion should be dismissed because, notwithstanding the foregoing,
         every reasonable effort must be made to enable the plaintiffs to locate any documents which may
         assist the parties to ascertain the truth. What is not permissible, or reasonable, in my view, is to
         require a party, in a case such as this, to incur enormous expense in what may be a futile search for
         something which may not exist.

[36]         In Peter Kiewit, McEachern C.J. adopted what might be termed a ―cost benefit analysis‖ which focussed
on the time and expense of locating the documents being sought. The costs of producing the hard drive are not
substantial, but later cases have taken considerations other than time and expense into account, primarily privacy
and confidentiality. In United Services Funds v. Carter (1986), 5 B.C.L.R. (2d) 222 (S.C.), Gibbs J. declined to
order that interrogatories relating to a defendants‘ personal finances be answered where it was argued that the
information was material because the plaintiff sought exemplary damages. He found that compelling this disclosure
before liability was established had the potential to be abusive and coercive. Leave to appeal that order was
dismissed: (1986), 5 B.C.L.R. (2d) 379 (C.A.). Seaton J.A. cast the issue as a balancing act, holding Courts retain
the jurisdiction to refuse disclosure where information is only of minimal importance to the litigation, but may
constitute a serious invasion of a privacy:


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         The appellant's position is that if evidence is relevant to an issue, the chambers judge is bound to
         require answers. I do not agree to that proposition. I think that there is an element of discretion in
         these matters. If, as here, the answer is only of minimal importance to the litigation and may
         constitute a serious invasion of the parties' privacy, I think it open to a chambers judge to decline
         to require that the questions be answered. That seems to be an entirely appropriate disposition in
         this case. I think that the Court would not interfere with the decision. The answers are of very
         limited importance to this litigation and no importance to other litigation. Consequently, I refuse
         leave to appeal. (Para. 6).

[37]         The issue was addressed again by the Court of Appeal in M(A) v. Ryan (1994), 98 B.C.L.R. (2d) 1
(C.A.), aff‘d [1997] 1 S.C.R. 157. In that case, the defendant psychiatrist appealed a chamber judge‘s order for
production of her records of visits with the plaintiff patient. Southin J.A. held that the records were not privileged,
but identified the competing interests at issue:

         In considering whether to make an order compelling disclosure of private documents, whether in
         possession of a party or a non-party, the Court ought to ask itself whether the particular invasion
         of privacy is necessary to the proper administration of justice and, if so, whether some terms are
         appropriate to limit that invasion. There need not be a privilege against testimony in the classic
         sense for this to be a relevant question. By "private documents" I mean documents which are not
         public documents. I do not limit this question to what might be thought of as personally
         embarrassing documents.

         On the one hand, a person who has been injured by the tort or breach of fiduciary duty of another
         ought not to be driven from the judgment seat by fear of unwarranted disclosure -- a sort of
         blackmail by legal process. If such a thing were to happen, the injured person would be twice a
         victim.

         But, on the other hand, a defendant ought not to be deprived of an assessment of the loss he
         actually caused, founded on all relevant evidence. It would be as much a miscarriage of justice for
         him to be ordered to pay a million dollars when, if all the relevant evidence were before the court,
         the award would be for one-tenth that sum, as it would be for the injured person to feel compelled
         to retire from the field of battle because of a demand for documents containing intensely personal
         matters of little relevance. (Paras. 51-3).

In the result, the Court limited the extent of the disclosure.

[38]        In Goldman, Sachs & Co. v. Sessions, 2000 BCSC 67 at 32, Smith J. (as he then was) declined to make
an order for production of documents because they did not have significant probative value, and the value of
production was outweighed by competing interests, which included not only the time and expense of production but
also confidentiality: see also Park at para. 15.

[39]       The Courts have balanced these considerations in requests similar to this one. A request for a computer
hard drive was made in Ireland v Low, 2006 BCSC 393. Joyce J. relied on Goldman, Sachs & Co. and declined to
order production of the hard drive because, in part, of the competing value of the plaintiff‘s privacy interest.

[40]        In my opinion, competing concerns for the plaintiff‘s privacy and confidentiality arise in the context of
this application. Even if I were able to find that the metadata had some marginal probative value, that value would
be offset by these interests.

[41]         As noted by Humphries J. in Baldwin Janzen Insurance Services (2004) Ltd. v. Janzen, 2006 BCSC
554, it is not appropriate to order the production of a hard drive because there is interesting technology that one
might apply to it. I would add that neither is it appropriate to produce a hard drive for the sole reason that
information can be relatively easily obtained from it.




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[42]      Once again, I do not mean to say that hard drives and other electronic documents need never be
produced under Rule 26. However in this case, the threshold of relevance has not been met.

         (c)     The Internet Browser History

[43]         I turn now to the last category of electronic information the defendants seek from the hard drive: the
plaintiff‘s internet browser histories.

[44]       In Park the defendant also sought production of internet browser and instant messaging histories. In that
case, Dorgan J. declined production because she found that it, like the metadata, was not relevant to matters in
issue. A motion for discovery of internet searches was also before the Court in Pritchard v. Crosfield, 2005
Carswell BC 3312. In that case, Master Patterson characterized the request as a fishing expedition. (Para. 15).

[45]        The defendants say that the plaintiff‘s internet history is relevant because she may be learning the
diagnostic criteria for the injuries she complains of from brain injury sites. There are, however, so many other
plausible reasons why the plaintiff might consult these sources that I do not see how her internet history will assist
the defendants. I conclude that this information is not relevant. Alternatively, even if the information was of
tangential relevance, I would decline to order its production for the same reasons set out above in relation to the
metadata, namely the intrusive nature of the order in comparison to the probative value of the information.

2.     The Photographs

[46]        The defendants seek copies of the plaintiff‘s photographs in hard copy and electronic form because, they
say, the photographs are relevant to showing what quality of life the plaintiff is able to enjoy. The plaintiff says that
the photographs are not relevant to matters in issue, and therefore, need not be produced.

[47]         Whether photographs of this nature should be disclosed under Rule 26 appears to have been first
addressed in Tupper v. Holding, 2003 BCSC 153. There, Master Scarth ordered that the plaintiff produce
photographs from a number of vacations she had taken because they were relevant to her claim for loss of enjoyment
of life. A similar order was sought in Gasior v. Bayes, 2005 BCSC 1828 and Watt v. Meier, 2005 BCSC 1834. In
Gasior, Master Caldwell declined the order, finding that the photographs were ―snapshots in time … taken at best
out of context‖ (para. 4). He held that ―[t]he production of photographs taken on a personal basis is … far more
invasive than probative …‖ (para. 7). In Watt, Master Bolton declined to order production because they were not
found to be relevant to the cognitive injuries pleaded.

[48]        Relevance is defined by the pleadings and the pleadings in this case do claim a loss of enjoyment of life.
However, in my opinion this is a situation, like the cases cited in the section above dealing with the metadata, where
the value of production should be compared to competing interests.

[49]        This is not a case where the plaintiff seeks damages arising out of an inability to undergo physical
activity and the defendants suspect that the plaintiff may have been engaging in vigorous physical activity on
vacation. Rather, the plaintiff‘s predominant injury is cognitive, and the loss of enjoyment of life stems largely from
that aspect of her injury. I do not see, nor have the defendants shown, how photographs of the plaintiff on vacation,
or with her friends and family, may shed any light on these cognitive abilities. In my opinion, the vacation
photographs (and other photographs relating to the plaintiff‘s family, friends and hobbies) sought have limited - if
any - probative value on this matter. Production of these photographs, however, is invasive of the plaintiff‘s
personal life, because the photographs are largely of moments spent with her family and friends. The limited
probative value considered against the invasiveness of production leads me to conclude that production of the
photographs should not be ordered.




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3.     The Game Unit

[50]       I decline to order production of the game unit for the same reason that I declined production of the
metadata: this information is not relevant to the plaintiff‘s cognitive functioning.

4.     The Palm Pilot

[51]       The plaintiff says that this aspect of the defendants' request is, like the others already discussed,
invasive. The defendants say that the Palm Pilot is relevant to assessing the accuracy of the plaintiff‘s future care
costs.

[52]         The request for the Palm Pilot is novel, in the sense that it does not appear cases have dealt with a similar
request in the past. Neither the plaintiff nor the defendants produced a case on this point, and my research has not
revealed one. That said, the principles discussed in the context of the above requests dispose of this aspect of the
defendants' motion. The Palm Pilot may be, to a limited extent, probative on the issue of the plaintiff‘s future care
costs. Ms. Stevens acknowledged in argument that the cost of such a device is in the range of $200 to $400, which
is relatively insignificant in the context of this claim. Any probative value of the Palm Pilot to the assessment of the
cost of future care is outweighed by the privacy interest of the plaintiff with respect to the Palm Pilot, and the
invasiveness of ordering its production. It therefore need not be produced.

CONCLUSION

[53]       The defendants' motion for production of the hard drive, photographs, game unit and Palm Pilot is
dismissed.




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                                         International Brotherhood of Electrical Workers,
                                                      Local 213 v. Hochstein

Court of Appeal for British Columbia
Date of Judgment: August 13, 2009

Reasons for Judgment of the Honourable Madam Justice Newbury

[1]           By writ and statement of claim filed in November 2002, the plaintiff, Local 213 of the International
Brotherhood of Electrical Workers (the ―Union‖) sued four defendants, including the appellants Mr. Hochstein and
the Independent Contractors and Business Association of British Columbia, for defamation. The Union objected to
certain articles published in the local newspaper concerning its so-called ―job targeting‖ or ―market recovery‖
program, an attempt by the Union to compete more effectively by subsidizing some labour costs of unionized
contractors, using funds received as ―union dues‖. The Union asserted that the publication falsely implied the
program was an illegal tax evasion scheme that defrauded the federal and provincial governments of tax revenue.

[2]          Prior to trial, various court orders were made regarding the production of documents by the Union
regarding the market recovery program. One of those orders was appealed: see 2004 BCSC 310 and 2005 BCCA
44. Later, in response to further submissions made on behalf of the Union regarding the confidentiality of the
documents it was required to disclose, the Court of Appeal reminded counsel by memo that ―there is a strict rule
enunciated in a case from this Court, Hunt v. T & N plc (1995), 34 C.P.C. (3d) 133, concerning the duty imposed on
counsel and parties to litigation to preserve confidentiality of material produced in the litigation process. We would
expect this law to be sedulously followed.‖ When providing documents to the defendants thereafter, the Union
reminded counsel for the defendants that it ―insisted upon strict compliance‖ with the undertaking of confidentiality
and that it would ―pursue all available remedies‖ if there was any breach of the undertaking. A written agreement
between counsel concerning documents made no mention of the undertaking.

[3]         The trial began in December 2006 and ended in March 2007. As part of its case, the Union introduced
into evidence the following documents, as described by the chambers judge at para. 7 of his reasons:

(a)      Spreadsheets (Numbers 10 and 11 from Exhibit 3) which identify contractors who applied for and received
funding from the plaintiff‘s market recovery program, the amount of funding the contractors were to receive from
the market recovery fund, the total hours funded and the rate at which those hours were to be funded. The
information contained in the spreadsheets was obtained from confidential letters of commitment prepared by the
plaintiff‘s officers and employees, and delivered to the contractors in respect of the electrical portion of work to be
performed on particular construction projects. All communications between the plaintiff and the union contractors
relating to the market recovery program were made on a confidential basis.

(b)    The plaintiff‘s annual financial statements from 1992 to 2002, which contained the amounts held in the
market recovery fund and the annual expenditures made from the market recovery fund.

(c)     Excerpts from the plaintiff‘s newsletters to its members.

The chambers judge noted that no mention was made of the implied undertaking of confidentiality by counsel at
trial. Nor did the defendants apply to be released from their undertaking, or suggest that upon the documents being
marked as exhibits at trial, the undertaking would somehow expire or cease to have effect.

[4]         Mr. Justice Groberman rendered judgment in the action on October 11, 2007. His Lordship held that the
statements complained of by the plaintiff were not capable of supporting the defamatory meanings alleged by the
Union and he dismissed the action. At the close of his reasons, he commented that it was unfortunate that the case
had reached the Court and that:




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... Discussion of issues of public policy ought to be encouraged. The impugned statements in this case were
primarily about taxation policy rather than about the plaintiff union. It is unseemly for the plaintiff to attempt to
squelch such discussion through resort to a defamation action, even if the defendants have been careless in their
statement of facts. Debates as to the correctness or falsity of the defendants‘ assertions were properly a matter for
public discourse. [At para. 37.]

No appeal was taken from the dismissal of the action.

[5]          A few weeks later, the defendants advised counsel for the Union of their wish to ―publicize‖
information contained in exhibits that had been filed at trial. Mr. Grant on behalf of the defendants invited Mr.
McGrady to advise if he believed there was any basis in law for objecting to the proposed use of the material, so that
the defendants could apply to the Court for directions. The Union did object, and in due course, the defendants
applied in this action for a declaration that the exhibits described above (referred to as the ―Documents‖) had not
been sealed and that public use of the Documents had not been restricted, and for an order releasing the defendants
from any undertakings restricting disclosure of the Documents.

[6]         The motion was not heard until May 20, 2008 – by which time the Supreme Court registry had notified
the Union that the exhibits filed at trial would be destroyed at the end of the one-year statutory retention period if
they were not claimed. Counsel for the Union picked up the Documents promptly upon receiving this notice.

The Implied Undertaking

[7]         The implied, or court-imposed, undertaking of confidentiality precludes a party who has obtained
documents on discovery, from using them otherwise than for purposes of the litigation in which they were obtained.
The undertaking has been a settled aspect of the law of this province since this court‘s decision in Hunt v. T & N plc
(1995) 4 B.C.L.R. (3d) 110. Hunt has been followed in other provinces, including Ontario (see Goodman v. Rossi
(1995) 125 D.L.R. (4th) 613 (Ont. C.A.)), Saskatchewan (see Laxton Holdings Ltd. v. Madill, [1987] 3 W.W.R. 570
(Sask. C.A.)), and New Brunswick (see Rocca Enterprises Ltd. v. University Press of New Brunswick Ltd., (1989)
103 N.B.R. (2d) 224 (Q.B.)), and was recently cited with approval in Juman v. Doucette 2008 SCC 8, [2008] 1
S.C.R. 157, at para. 27. In the latter case, Binnie J. for the Court noted two primary rationales for the implied
undertaking. First, he said, a proper trial discovery is ―essential to prevent surprise or ‗litigation by ambush‘, to
encourage settlement once the facts are known, and to narrow issues even where settlement proves unachievable.‖
Thus the rules of court of most jurisdictions compel litigants to answer all relevant questions posed on discovery,
opening the gate to investigate what may be confidential documents in pursuit of allegations that may ultimately be
found to have no merit at all. (Para. 24.) Second, Binnie J. noted:

A litigant who has some assurance that the documents and answers will not be used for a purpose collateral or
ulterior to the proceedings in which they are demanded will be encouraged to provide a more complete and candid
discovery. This is of particular interest in an era where documentary production is of a magnitude (―litigation by
avalanche‖) as often to preclude careful pre-screening by the individuals or corporations making production. See
Kyuquot Logging Ltd. v. British Columbia Forest Products Ltd. (1986), 5 B.C.L.R. (2d) 1 (C.A.), per Esson J.A.
dissenting, at pp. 10-11. [At para. 26.]

Both rationales, then, are aimed at ensuring full disclosure of all relevant documents is made prior to trial. Again in
the words of Binnie J. in Doucette, disclosure of all relevant documents is required because the public interest in
―getting at the truth‖ in a civil action outweighs the examinee‘s privacy interest; but since discovery is compelled,
the undertaking ensures that the invasion of privacy is generally limited to that purpose alone. (Para. 25.)

[8]           Even so, the law also recognizes that there may be exceptional circumstances in which the public
interest in full disclosure may be outweighed by some more compelling public interest, as discussed in Doucette at
paras. 30-8. At para. 34, Binnie J. suggested that the following rule of court in force in Manitoba, Ontario and
Prince Edward Island reflects the common law more generally:




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If satisfied that the interest of justice outweighs any prejudice that would result to a party who disclosed evidence,
the court may order that [the implied or ―deemed‖ undertaking] does not apply to the evidence or to information
obtained from it, and may impose such terms and give such directions as are just. [At para. 34.]

[9]          The law as to whether and when the implied undertaking comes to an end has been less discussed and
has therefore been less clear – at least until recently. Since counsel on this appeal focussed on the state of the law on
this point as at the commencement of the trial (December 2006), a brief review of the cases to which they referred us
may be in order. Although the law on this point goes back much further (see the review of English and Canadian
cases beginning at para. 18 of Goodman v. Rossi, supra), counsel took as their starting-point the decision of the
House of Lords in Home Office v. Harman [1982] 1 All E.R. 532 (H.L.). It clearly and dramatically framed the
debate concerning the use, for ―extraneous‖ purposes, of confidential documents disclosed in pre-trial proceedings
and introduced into evidence at trial. The plaintiff in the underlying action was a prisoner who was suing the Home
Office in connection with his treatment in prison. The Home Office produced several documents prior to trial and
warned the plaintiff‘s solicitor, Ms. Harman, that it did not wish them to be used for general purposes of the
prisoners‘ rights organization to which she belonged. She replied that she was very well aware of the obligation not
to use them for purposes other than the matter at hand. Over the first several days of trial, counsel for the plaintiff
read out the material parts of 800 pages of the documents in court. The solicitor then proceeded to show the
―bundles‖ of documents to a reporter, who published a newspaper article highly critical of the prison authorities.
The Home Office sought relief, other than committal to prison, for contempt of court against the solicitor. The Court
of Appeal upheld her conviction and certified the issue for the House of Lords as follows:

... whether a litigant‘s obligation or undertaking implied by law in respect of the use which may be made of his
opponent‘s documents disclosed on discovery in the action is correctly defined as terminating if and when and to the
extent that any such document is read out in open court in the course of proceedings in that action or is otherwise
affected by such reading out. [At 310-11.]

[10]        The majority of the House of Lords dismissed the solicitor‘s appeal, with Lords Simon and Scarman
dissenting. All three members of the majority gave separate speeches. Lord Diplock stated that the case was ―not
about freedom of speech, freedom of the press, openness of justice or documents coming into the public domain‖,
but was rather about ―an aspect of the law of discovery of documents in civil actions in the High Court.‖ (At 299.)
He noted, however, that the reason for the principle that civil actions must be heard in open court had been
expressed by Lord Shaw of Dunfermline in Scott v. Scott [1913] A.C. 417 as a ―spur to exertion‖ that ―keeps the
judge himself, while trying, under trial.‖ One ―side-effect‖ of this principle, Lord Diplock noted, was that any
document read out orally in court could be taken down in shorthand by anyone, even though it might later be ruled
inadmissible. (At 303.) Lord Diplock observed ‒ with some regret, it appears ‒ the advent of ―mechanical
recording equipment‖ switched on as soon as a trial begins, although Ms. Harman, he said, had not sought to obtain
a transcript of counsel‘s five-day opening speech in the underlying case. Allowing counsel to read 800 documents
out to the court was in his Lordship‘s view indicative of ―judicial turpitude‖. He emphasized the failure of the trial
judge to conduct the trial efficiently as the basis for concluding that the reading of a document in open court should
not affect the implied undertaking. In his words:

… the judge who has control of the trial of the action and whose duty, as a member of the judiciary, is owed not
only to the litigants in that particular action but also to litigants in other actions that are waiting to come on has a
duty to see that time is not wasted. He ought to be chary of allowing written documents which he (or a witness) can
read for himself much more quickly silently to be read aloud by counsel in their entirety instead of confining counsel
to oral references to the most material parts of them. The reason for the rule in Scott v. Scott [1913] A.C. 417 is not
to encourage such judicial turpitude; as Bentham put it one of the reasons for the rule is just the contrary. I would
myself add this as a reason (additional to those based on the desirability of encouraging full and unreserved
discovery of documents before trial that were given in the courts below) why public policy requires that the implied
undertaking given by a solicitor to the court, on obtaining production of discovery of documents belonging to his
own client‘s adversary, that he will not take advantage of his possession of copies of those documents to sue them or
to enable others to use them for some collateral purpose, does not terminate as respects each individual document at
the very moment that that document, whether admissible or not, is actually read out in court. [At 306; emphasis
added.]




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[11]       Lord Keith discussed wider reasons of public policy in his concurring reasons. The implied obligation
not to make ―improper use‖ of discovered documents, he said, is directed not to the enforcement of the law relating
to confidentiality but to the maintenance of the proper administration of justice. In his analysis:

There is good reason to apprehend that, if the argument for the appellant were accepted, there would be substantially
increased temptation to a litigant to destroy or conceal the existence of relevant documents which would fall
properly within the ambit of discovery. There is also reason to apprehend the introduction into proceedings of
tactical manoeuvrings on either side designed to secure that discovered documents are or are not read out in full.
Both these developments would be undesirable from the point of view of the proper administration of justice. [At
309.]

Lord Roskill, also concurring, noted that the principle of open courts admitted of no doubt, but that it was
amply safeguarded by hearing in open court, ―without the subsequent making available of any documents
read in open court for a purpose which had no immediate connection with the litigation in question.‖ In his
analysis, the notion that the undertaking terminates once a document is so read, militated against full and
frank discovery. (At 326.)

[12]        Lord Scarman on the other hand, speaking for himself and Lord Simon, questioned whether it could be
good law ―that the litigant and his solicitor are alone excluded from the right to make that use of the documents
which everyone else may now make, namely to treat them as matters of public knowledge? In our view, this is not
the law. We do not think that a system of law which recognizes the right of freedom of communication in respect of
matters of public knowledge can decently or rationally permit any such exception.‖ (At 312.) In the minority‘s
view, the ―general requirement of public justice and the right to freedom of communication‖ were overriding
factors, and the anomaly of focussing on whether the documents had been read out in open court could be obviated
by a rule under which documents would lose their confidentiality once they were exhibited as part of the public
record at trial. (At 319.)

[13]        I note that following the House of Lords‘ decision, Ms. Harman applied to the European Commission of
Human Rights to have the law in England changed. The government ultimately agreed to seek to amend the law to
accord with the minority‘s view, and in 1987, the English rules on disclosure and inspection of documents were
revised to provide that the undertaking as to confidentiality ceases to apply to a document ―after it has been read to
or by the Court, or referred to, in open court, unless the Court for special reasons has otherwise ordered ...‖. (See
Bibby Bulk Carriers Ltd. v. Cansulex Ltd. et al. [1988] 2 All E.R. 820 (Q.B.) at 823-25.)

[14]       Turning to British Columbia, this court in Hunt v. T & N plc, supra, did not refer specifically to whether
or when the undertaking of confidentiality terminates. In 1997, in Discovery Enterprises Inc. v. Ebco Industries Ltd.
[1998] 5 W.W.R. 435, 42 B.C.L.R. (3d) 192 (B.C.S.C.), Chief Justice Williams raised the question of whether in a
chambers application the filing of a document or disclosure in court should be a ―rationale for ending an implied
undertaking which came about to protect the disclosing party from these documents being used for extraneous
purposes.‖ He suggested that these and related questions should be fully considered by appropriate committees of
the bench and bar rather than determined by a judge. In the absence of a rule of court, he said he would follow
Harman. (At para. 31.)

…

[17]        In May 2006, a few months before the trial began in the case at bar, the question arose in Doucette
(Litigation Guardian of) v. Wee Watch Day Care Systems Inc. 2006 BCCA 262, 55 B.C.L.R. (4th) 66 whether the
implied undertaking of confidentiality in a civil action could or should be varied to allow disclosure of discovery
transcripts to the police, who were investigating a possible criminal offence. The civil action was being brought on
behalf of a child who had allegedly suffered injury as a result of negligence on the part of a childcare worker. The
childcare worker was to be examined for discovery. She sought an order restricting disclosure of the transcript and
invoked the protection of the Canada Evidence Act, the British Columbia Evidence Act and the Charter at her
discovery. A judge in chambers granted the Attorney General‘s motion to vary the implied undertaking of
confidentiality to allow her discovery evidence to be shown to the police. This court on appeal ruled that the
chambers judge‘s various rulings on the motions were premature and that if and when the childcare worker was
charged with a criminal offence, it would be for the criminal court to decide whether ―evidence obtained from the


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civil process can be admitted at her criminal trial.‖ In the course of her reasons, however, Kirkpatrick J.A. for the
Court noted, also in obiter, that ―the confidentiality of the discovery process in British Columbia evaporates once the
evidence is tendered in court. The principle of open court, including … open court files, renders the confidentiality
rule limited to the pre-trial process.‖ (Para. 80.)

[18]        In Litton v. Braithwaite 2006 BCSC 1481, 61 B.C.L.R. (4th) 146, decided in October 2006, Halfyard J.
expressed the view that this court‘s statement of the law at para. 80 of Doucette had changed the law as held in
Discovery and that accordingly, the implied undertaking of confidentiality did not apply to documents introduced at
trial. (At para. 34.)

[19]      Finally in this review of the law leading up to December 2006, in Xu v. Foo 2006 BCCA 525, 62
B.C.L.R. (4th) 132, Huddart J.A. expressed uncertainty on the point in obiter at para. 58 of her reasons dated
November 23, 2006.

[20]        Subsequent to the commencement of trial in the case at bar, any uncertainty as to whether the undertaking
of confidentiality disappears once documents are adduced into evidence was largely dissipated by the Supreme
Court of Canada‘s judgment on the appeal in Doucette, reported as Juman v. Doucette, supra. The Supreme Court
allowed the childcare worker‘s appeal from this court‘s order, concluding that it would be wrong for the police to be
able to take advantage of statutorily-compelled testimony in civil litigation, thus undermining her right to silence
and the protection against self-incrimination. Although the Court said that a non-party engaged in other litigation
would have standing to seek to obtain a modification of the implied undertaking, the Attorney General‘s application
was rejected. The Court characterized his application as intended to ―sidestep the appellant‘s silence in the face of
police investigation of her conduct. The authorities should not be able to obtain indirectly a transcript which they
are unable to obtain directly through a search warrant in the ordinary way because they lack the grounds to justify
it.‖ (Para. 58.)

[21]        More importantly for purposes of this case, the Court in its discussion of the implied undertaking stated at
para. 25 that the ―general idea, metaphorically speaking‖ is that ―whatever is disclosed in the discovery room stays
in the discovery room unless eventually revealed in the courtroom or disclosed by judicial order.‖ Further, the Court
wrote at para. 51 that ―When an adverse party incorporates the answers or documents obtained on discovery as part
of the court record at trial, the undertaking is spent ...‖ (my emphasis), citing Lac d‟Amiante, supra, and Shaw Estate
v. Oldroyd 2007 BCSC 866 at paras. 20-2. The Court continued:

It follows that decisions to the contrary, such as the decision of the House of Lords in Home Office v. Harman ...
should not be followed in this country. The effect of the Harman decision has been reversed by a rule of change in
its country of origin. [At para. 51.]

In Doucette itself, since the civil action had settled in 2006, the undertaking was said to continue to bind the
respondent, thus preserving the appellant‘s privacy interest indefinitely.

…

ON APPEAL

[25]       On appeal, the defendants submit that the chambers judge erred in holding that the law with respect to the
implied undertaking was uncertain at the time of trial; in holding that the Court retained jurisdiction to impose a
―new‖ undertaking on the defendants after the undertaking had come to an end; and in imposing an undertaking in
the circumstances of this case. The defendants say that at the time of commencement of trial in this case, the law
was not uncertain, having been clearly stated in Lac d‟Amiante, Re Down, Doucette and Litton. Those cases relied
upon by the Union to illustrate uncertainty are, counsel says, distinguishable. In Discovery, the proceedings were
interlocutory; in Xu v. Foo, the documents in question had never been tendered at trial, and in both cases the Court‘s
comments regarding the termination of the obligation of confidentiality were entirely obiter.

[26]       Mr. McGrady for the defendants naturally relied on Discovery and the cases cited therein by Williams
C.J.S.C. – Wirth Ltd. v. Acadia Pipe and Supply Corp., (1991) 79 Alta. L.R. (2d) 345 (Q.B.), where it was said that



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whether or not the undertaking ends when the information is read out in open court ―has not been determined‖;
Lubrizol Corp. v. Imperial Oil Ltd., (1990) 39 F.T.R. 43 (Prothonotary), which relied heavily on Harman, supra;
and Sezerman v. Youle (1996) 135 D.L.R. (4th) 226 (N.S.C.A.), where the Court was not prepared to ―follow the
rule-makers in England‖ who had overruled Harman. As well, Mr. McGrady notes that I denied leave to appeal
Chief Justice Williams‘ decision in Discovery: see [1998] B.C.J. No. 183, 103 B.C.A.C. 261.

[27]        All of these cases, of course, pre-dated Lac d‟Amiante, Re Down and Doucette (C.A.). Had they been
examined, they would have suggested that the weight of authority ‒ albeit mostly obiter dicta ‒ by late 2006
supported the proposition that the deemed undertaking ―evaporated‖ once the documents or transcripts were
adduced into evidence at trial. Although an argument might have been made to the effect that Lac d‟Amiante was
restricted to the province of Quebec and that this court in Doucette did not refer to Lac d‟Amiante in any event, the
better view would have been that this court correctly stated the law in Doucette, and was followed in Litton. At the
very least, the law was such that a party relying on the continuation of the implied undertaking after trial would have
been alerted to the advisability of seeking a sealing order when the documents were tendered into evidence. All of
this, of course, is in addition to the usual rule, referred to earlier, that courts do not change the law but declare it.
The conclusion therefore seems inescapable that at all material times in this proceeding, the deemed undertaking
was one that would likely terminate upon the entry of the Documents as exhibits in the trial record.

[28]       But there is more a fundamental reason why the deemed undertaking cannot in my view now be relied on
by the Union – the fact that it was not the ‗adverse party‘, but the Union itself, who introduced the Documents into
evidence as part of its own case at trial. None of the authorities to which we were referred supports the continuation
of the undertaking, binding on the party against whom the documents were used (here, the defendants), in such
circumstances. The policy rationales that found the obligation – the prevention of surprise at trial, the
encouragement of settlements, the desirability of narrowing issues prior to trial and generally the public interest in
―complete and candid‖ disclosure – become irrelevant once the party asserting confidentiality elects to enter the
Documents as exhibits in an open courtroom, even if he or she did also disclose them in discovery. Using the facts
in Harman as an illustration, suppose that no discovery of documents had taken place but the Home Office had itself
put the records into evidence. There would be no issue of continued confidentiality – the Documents would have
become public by the act of the party who previously asserted a privacy interest in them. Similarly here, the Union
elected to make the Documents public and cannot be said to be prejudiced if the defendants, like any other member
of the public, use them for other purposes. The fact the Union disclosed the Documents prior to trial does not, in my
respectful view, alter this fact. What happened in the discovery room is superseded by what the Union did in the
courtroom.

[29]        In the result, I consider that the chambers judge exercised his discretion on the basis of a
misapprehension of principle – that the defendants in this case continued to be bound by the deemed undertaking in
respect of Documents adduced into evidence by the Union itself the party claiming a privacy interest. Furthermore,
even if the defendants had entered the Documents into evidence, the obligation would have terminated at that time in
accordance with the law reviewed above.

[30]       In the result, I would allow the appeal and grant a declaration in the terms sought by the defendants in the
notice of motion dated December 14, 2007.

                                                                           ―The Honourable Madam Justice Newbury‖

I Agree:
―The Honourable Mr. Justice Low‖
I Agree:
―The Honourable Mr. Justice K. Smith‖




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                                                                  Hodgkinson v. Simms

British Columbia Court of Appeal
Judgment: December 13, 1988

The judgment of the Court was delivered by McEachern C.J.B.C., allowing the appeal; concurred in by
Taggart J.A. Dissenting reasons for judgment delivered by Craig J.A.

MCEACHERN C.J.B.C.: - This appeal is concerned with an important practice question relating to the privilege of
a solicitor‘s brief, particularly whether photocopies of documents collected by the Plaintiff‘s solicitor from third
parties and now included in his brief are privileged even though the original documents were not created for the
purpose of litigation.

         The Plaintiff alleges that he invested substantial funds in MURB projects on the advice of the Defendant
accountants. The investments not having turned out as expected, the Plaintiff alleges various breaches of duty
including the acceptance by the Defendants of secret commissions from the MURB developers, and negligence in
the advice upon which the Plaintiff says he relied. These investments were made in 1980 and 1981.

       The Defendants have moved their offices four times since these investments were made and there have
been mergers with other firms and departures of accountants within this firm, as a consequence of which the
Defendants say they do not have complete files on some or all of these transactions.

          The Plaintiff‘s solicitor, however, has conducted investigations in the course of which he has obtained
photocopies of numerous documents said to be relevant to the issues in the action for which he claims privilege. The
Plaintiff says the Defendants could find these documents for themselves but the Defendants, without making very
serious investigations, say they are entitled to see the documents the Plaintiff‘s solicitor has ―ingathered‖ into his
brief as they are not privileged.

         These documents have been mentioned in the Plaintiff‘s Supplementary List of Documents in the following
terms:

         ― Documents obtained by the Solicitor for the Plaintiff after this litigation arose for the dominant
         purpose of preparing for this litigation and forming a part of the Plaintiff Solicitor‘s brief ..........‖

         Following the above are 31 separate items which may be illustrated by quoting just a few:

         ―1. 80 06 12 to 84 01 15 64 photocopied documents

         2 Undated          2 photocopied documents

         3. Undated         4 handwritten documents (photocopies)

                                                          ..........

         80 09 02 to 85 12 03        15 photocopied documents

                                                          ..........

         26. Various        7 photocopied documents‖

         It is apparent that a serious question of practice arises. The Defendants say there is no privilege for copies
of unprivileged documents and for that reason, and for the further reason that there is said to be a general trend
toward full disclosure and the avoidance of ambush, the Plaintiff must disclose these documents.




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         The Plaintiff says such copies are privileged and that great mischief will result if, in an adversarial system,
counsel of one party is entitled to ―dip‖ into the solicitor‘s brief of opposing counsel.

        The learned Chambers judge, in a careful judgment, applied the dominant purpose theory. He concluded (at
Appeal Book pp. 57-9):

         ― For a ‗communication‘ from a third party to attract the privilege, he who has caused it to come
         into being (its genesis) must have done so with the dominant purpose of its being used by the
         solicitor in the matter of his forming an opinion with respect to an issue or issues arising in
         litigation already underway or of litigation of which there is a reasonable prospect of becoming
         underway. Shaughnessy Golf & Country Club v. Uniguard Services Ltd. (1986), 1 B.C.L.R. (2d)
         309 (C.A.) and Lust v. Lewis, [1987] B.C.J. No. 2480 (Vancouver Registry CA008155, November
         27, 1987). ..........

         It is manifest that whoever was the author of the original documents whose existence Mr. Walsh
         has uncovered, and of which he holds copies, that author did not create them with the dominant
         purpose of their being used in this litigation. Mr. Walsh ingathered them with that dominant
         purpose, but he was not their creator. Accordingly, they do not satisfy the dominant purpose test
         and were it not for certain authorities to which I am about to refer, I would not hesitate to hold that
         these copies held by Mr. Walsh are not entitled to the protection of the privilege.‖

         The Chambers judge went on to discuss a number of authorities, particularly Lyell v. Kennedy (1884), 27
Ch.D. 1 (C.A.); Re Hoyle Industries Ltd. et al., [1980] C.T.C. 501, 80 D.T.C. 6363, (F.C.T.D.); Crown Zellerbach v.
Deputy Attorney General of Canada, [1982] C.T.C. 121, 82 D.T.C. 6116 (B.C.S.C.), which appear to support the
claim to privilege but nevertheless concluded there is a material distinction between collections of documents which
were in issue in those cases and the copies of documents in dispute in this case. At p. 61 he said:

         ―It seems to me that there is a material distinction between the ‗documents‘ collected in these tax
         cases and the copies of the ‗documents‘ (other than the ‗Communications‘ referring to these
         ‗documents‘) in gathered by Mr. Walsh. The former were ‗Communications‘, properly speaking,
         as described by Esson, J. in Crown Zellerbach, supra, at p. 123, whereas the latter never were.‖

         I do not find it helpful to approach this question of privilege just from the perspective of
―communications.‖ Privilege attaches in proper cases to conventional communications where information is
transferred from a client to his solicitor and vice versa by letter or conversation, but other documents such as
cheques, invoices, legal bills and many other commercial or non-commercial documents may also be privileged
even though they convey information or ideas indirectly. For example, a cheque may be evidence of a secret
commission, or it may be completely innocent, but it is not a conventional communication. For that reason, I would
not support the distinction which apparently found favour with the Chambers judge.

         Similarly, I do not find it helpful to attempt a distinction between solicitor privilege and the ―lawyer‘s work
product‖ that was recognized by the United States Supreme Court in the leading case of Hickman v. Taylor (1946),
329 U.S. 495, and which distinction some commentators attempt to extract from some of the cases: ―Civil Litigation
Trial Preparation in Canada,‖ Neil J. Williams, 1980, 58 C.B.R. 1 at p.50. ―Lawyer‘s work product‖ is a convenient
term to describe the kinds of material that, subject to controlling authorities such as Voth, infra, are protected by
privilege, but I see no need to recognize a separate category of immunity against production.

        The learned Chambers judge also perceived a policy, said to be approved by this Court, of moving ―..........
from privilege to complete disclosure.‖ This is said to arise from two unreported decisions of this Court which are
mentioned in Wipfli et al. v. Britten et al., which is also unreported, C781186, Vancouver Registry, May 15, 1979
(B.C.S.C.).

        The first of these decisions, Gergely et al. v. Ellington, CA1978/747, September 11, 1978, was a case
where the defendant driver, who had vision difficulties, was ordered to submit to a medical examination and to
submit his eyeglasses for inspection and analysis.



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         The second case was Blackstock v. Patterson et al., CA780814, November 3, 1978, where there was a
question about who was driving a vehicle, and certain portions of a damaged motor vehicle, which carried signs of
human blood and hair, were ordered produced for inspection and analysis.

         The Wipfli case related to an application to have the plaintiff, a birth-damaged child, examined by a
physician appointed by the defendants.

          In each of these three decisions there are pronouncements about the advantages of full disclosure. In
Gergely the Court stated that the modern philosophy is that trials by ambush should be avoided and there should be
full disclosure. It is said that both sides should be fully informed of the other‘s case for two purposes: (1) to prevent
ambush if a trial does take place; and (2) to facilitate settlement before proceeding to trial on known facts.

          I pause to say that I have difficulty with the word ―ambush‖ in connection with this case. Documents to be
relevant would have to relate to the transactions in question and the Defendants are just as able as the Plaintiff to
make the enquiries necessary to discover these documents. One who seeks to ambush another does not disclose that
fact in advance.

         While I have no hesitation associating myself with the fullest possible disclosure, it seems to me with
respect that the cases cited are not authority for the proposition that privilege must give way to disclosure. In fact,
the cases cited do not deal with solicitor‘s privilege at all. There are strong and valid reasons for privilege which
should not lightly be diluted, and conflicting policies, even where they collide head-on, often co-exist, with one
subject to the other. While I favour full disclosure in proper circumstances it will be rare, if ever, that the need for
disclosure will displace privilege.

         In my view it is highly desirable to maintain the sanctity of the solicitor‘s brief which has historically been
inviolate. The cases are replete with explanations for such a privilege. In Susan Hosiery v. M.N.R., [1969] 2 Ex. C.R.
27 (F.C.T.D.) at pp. 33-34, Jackett, P., in a much quoted passage, said:

         ―Turning to the ‗lawyer‘s brief‘ rule, the reason for the rule is, obviously, that, under our adversary
         system of litigation, a lawyer‘s preparation of his client‘s case must not be inhibited by the
         possibility that the materials that he prepares can be taken out of his file and presented to the court
         in a manner other than that contemplated when they were prepared. What would aid in
         determining the truth when presented in the manner contemplated by the solicitor who directed its
         preparation might well be used to create a distortion of the truth to the prejudice of the client when
         presented by someone adverse in interest who did not understand what gave rise to its preparation.
         If lawyers were entitled to dip into each other‘s briefs by means of the discovery process, the
         straightforward preparation of cases for trial would develop into a most unsatisfactory travesty of
         our present system.‖

          With respect, I do not think the learned President has fully explained the reason for a solicitor‘s privilege
and I would place possible misunderstandings of context at the lower end of the scale of importance. More to the
point, in my view, is the statement of Cotton, L.J. in Lyell v. Kennedy (1881), 27 Ch.D. 1 at pp. 18-19 where he said:

         ―Now the only privilege which can be claimed, and such as here the Defendant desires to claim, is
         what is called ‗professional privilege,‘ that is to say, that if a man does not employ a solicitor he
         cannot protect that which, if he had employed a solicitor, would be protected; the reason for this
         privilege being, as has frequently been stated, that the English law being technical, the greatest
         facilities ought to be afforded to every one who is involved in litigation to consult a solicitor and
         to receive from his solicitor communications which shall be privileged, and to enable the legal
         adviser of the party employing him to make a sufficient investigation, and so obtain the fullest
         means of ascertaining what advice he shall give as to the course to be adopted, without affording
         the opportunity to an opponent of prying into those communications, those searches, those
         responses, which are according to English law all of a confidential character …‖

         To the same effect are the judgments in Anderson v. Bank of B.C. (1875) 2 Ch.D. 644 (C.A.) as follows:



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         ―Again, the solicitor‘s acts must be protected for the use of the client. The solicitor requires further
         information, and says, I will obtain it from a third person. That is confidential. It is obtained by
         him as solicitor for the purpose of the litigation, and it must be protected upon the same ground,
         otherwise it would be dangerous, if not impossible, to employ a solicitor. You cannot ask him
         what the information he obtained was. it may be information simply for the purpose of knowing
         whether he ought to defend or prosecute the action, but it may be also obtained in the shape of
         collecting evidence for the purpose of such prosecution or defence. All that, therefore, is
         privileged.‖ (per Jessel, M.R. at p.p. 649-650)

         ―Looking at the dicta and the judgments cited, they might require to be fully considered, but I
         think they may possibly all be based upon this, which is an intelligible principle, that as you have
         no right to see your adversary‘s brief, you have no right to see that which comes into existence
         merely as the materials for the brief.‖ (per James, L.J. at p. 656)

         In my view the purpose of the privilege is to ensure that a solicitor may, for the purpose of preparing
himself to advise or conduct proceedings, proceed with complete confidence that the protected information or
material he gathers from his client and others for this purpose, and what advice he gives, will not be disclosed to
anyone except with the consent of his client.

…

          It is obvious, however, that everything a client says to a solicitor and everything a solicitor does or collects
cannot be privileged and it is important to define, with as much precision as possible, what falls within and what
falls outside the privilege.

         There are really two overlapping questions here. The first problem relates to the dominant purpose rule and
the second is whether solicitor‘s privilege extends to the kind of documents in question on this application.

1.       THE DOMINANT PURPOSE RULE

          In Voth Bros. Construction (1974) Ltd. v. North Vancouver School District (1981) 29 B.C.L.R. 114 and
Shaughnessy Golf & Country Club v. Uniguard Services Ltd. et al. (1986), 1 B.C.L.R. (2d) 309, this Court adopted
the dominant purpose rule described in Waugh v. British Railways Board, [1980] A.C. 521 (H.L.) . That rule is
stated in the following terms:

         ―..........a document which was produced or brought into existence either with the dominant
         purpose of its author, or of the person or authority under whose direction, whether particular or
         general, it was produced or brought into existence, of using it or its contents in order to obtain
         legal advice or to conduct or aid in the conduct of litigation, at the time of its production in
         reasonable prospect, should be privileged and excluded from inspection.‖

         It is conceded by Plaintiff‘s counsel that the original documents he discovered in his investigation, being
documents which were created before litigation was anticipated, and not for the purpose of litigation, are not
privileged and he asserts no claim in that behalf.

         It is also apparent in my view that the photocopies of these unprivileged documents, resting in Mr. Walsh‘s
brief, were produced or brought into existence with the dominant purpose of being used in the conduct of litigation.

        Mr. Urquhart argues that a copy of a pre-existing unprivileged document cannot become privileged by
being added to counsel‘s brief. Mr. Walsh disagrees. It is necessary to turn to the second question.

2.       DOES SOLICITOR’S PRIVILEGE EXTEND TO THESE COPY DOCUMENTS?

        The starting point in any discussion of solicitor‘s privilege is Lyell v. Kennedy (No. 1), supra, the facts of
which are significantly close to the facts of this case. It was a pedigree action where the solicitor for a party procured



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copies and extracts from certain entries in public registers and also photographs of certain tombstones and houses,
for all of which privilege was claimed.

           This claim to privilege was challenged but the Court of Appeal upheld the privilege. Cotton, L.J. at pp. 25-
26 said:

           ―What ought we to do here? Here is a litigation about pedigree and the heirship to a lady who died
           many years ago; and it is sworn by the Defendant that for the purpose of defending himself against
           various claimants he has made inquiries, and that he has obtained every one of those documents
           for the purpose of protecting himself, and that he has got them, not himself personally, but that his
           solicitors have got them, for the purpose of his defence, for the purpose of instructing his counsel,
           and for the purpose of conducting this litigation on his behalf. Now no case has been quoted where
           documents obtained under such circumstances have been ordered to be produced. In my opinion it
           is contrary to the principle on which the Court acts with regard to protection on the ground of
           professional privilege that we should make an order for their production; they were obtained for
           the purpose of his defence, and it would be to deprive a solicitor of the means afforded for
           enabling him to fully investigate a case for the purpose of instructing counsel if we required
           documents, although perhaps juris in themselves, to be produced because the very fact of the
           solicitor having got copies of certain burial certificates and other records, and having made copies
           of the inscriptions on certain tombstones, and obtained photographs of certain houses, might show
           what his view was as to the case of his client as regards the claim made against him.‖

          Mr. Walsh argues that there is no proper distinction between a photograph of an unprivileged tombstone
and a photocopy of an unprivileged document, provided of course that they are both obtained for the purposes of
litigation.

           In the same case, Bowen, L.J. at p. 31 said:

           ―Then comes the point as to documents, and as to the documents, I agree with everything that has
           been said by the Lord Justice. We are not dealing now with documents which the party has
           procured himself; we are dealing with documents which have been procured at the instigation of a
           solicitor; and, bearing in mind, the rule of privilege which the law gives in respect of information
           obtained by a solicitor, it seems to me we cannot make the order asked for by Mr. MacClymont
           without doing very serious injustice in this case. A collection of records may be the result of
           professional knowledge, research, and skill, just as a collection of curiosities is the result of the
           skill and knowledge of the antiquarian or virtuoso, and even if the solicitor has employed others to
           obtain them, it is his knowledge and judgment which have probably indicated the source from
           which they could be obtained. It is his mind, if that be so, which has selected the materials, and
           those materials, when chosen, seem to me to represent the result of his professional care and skill,
           and you cannot have disclosure of them without asking for the key to the labour which the
           solicitor has bestowed in obtaining them. I entirely agree, therefore, with what has been said, and
           without saying what ought to be done in another case, I am satisfied that in this case we could not
           make the order asked for without infringing the principle on which the Court acts, nor is it
           necessary to say what would be done as to any particular document if a right to inspection were
           made out.‖

…

          It is my conclusion that the law has always been, and in my view should continue to be, that in
circumstances such as these, where a lawyer exercising legal knowledge, skill, judgment and industry has assembled
a collection of relevant copy documents for his brief for the purpose of advising on or conducting anticipated or
pending litigation he is entitled, indeed required, unless the client consents, to claim privilege for such collection and
to refuse production.

        I reach this conclusion because of the authorities cited which state the law accurately and authoritatively
and because this does no violence to the dominant purpose rule established by Waugh and Voth, both supra. This


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conclusion merely extends the application of that rule to copies made for the dominant purpose of litigation. It
follows that the copies are privileged if the dominant purpose of their creation as copies satisfies the same test
(Voth) as would be applied to the original documents of which they are copies. In some cases the copies may be
privileged even though the originals are not.

         I would not wish it thought that the foregoing applies only to collections of copies. It could apply also to a
single copy-document, or to a number of unrelated copies if they meet the test of Voth as I have described it.

          Mr. Walsh adds a further argument with which I respectfully agree. He says that what the Defendants seek
is not just to look at these copy-documents but also to look into counsel‘s mind to learn what he knows, and what he
does not know, and the direction in which he is proceeding in the preparation of his client‘s case. That, in my view,
would be a mischief that should be avoided.

         I turn to another question which was argued before us. There is no doubt the onus of establishing privilege
rests with the party claiming or alleging that a document is privileged: Steeves v. Rapanos [1982] 6 W.W.R. 244
(B.C.C.A.).

         In this case the claim to privilege was made in the language quoted supra which was taken from Lord
Atkin‘s Court Forms and Precedents in Civil Proceedings, 1941, vol. 8, p. 49.

          In my view the claim is adequately made in the Plaintiff‘s Supplementary List. But the authorities are clear
that the documents for which privilege is claimed must be sufficiently identified so that the Court may make an
effective order for production in a proper case. I do not think the Plaintiff has sufficiently described the documents
in its Supplementary List. The Plaintiff has a difficult problem in this connection because it does not wish to even
hint at the nature or source of the documents. Presumably there is some order in the organization of the documents
on the Supplementary List and I think it would be sufficient if the Plaintiff followed the practice with respect to each
item in its list suggested in Lord Atkin‘s 1983 edition, Vol. 15, p. 115 as follows:

         ―Letters .......... and copies .......... tied up in a bundle marked ‗A.B. 1‘, numbered consecutively
         Nos. 1 - 26, the same being initialled by me.‖

          I do not suggest the documents must be described such as ―letters‖; ―documents‖ would be sufficient. If
this is done the parties will know that documents being produced by an order for production or at trial, if any, have
been disclosed on the list.

        But in the particular circumstances of this case I would not deprive the Plaintiff of its right of privilege
because of an insufficient identification of the documents. The Plaintiff must, however, forthwith deliver an
amended Supplementary List.

        I would allow the appeal and dismiss the Defendants‘ application for production with costs to the Plaintiff
throughout.

MCEACHERN C.J.B.C.

TAGGART J.A.: - I agree.

CRAIG J.A. (dissenting): - The plaintiff appeals from the judgment of a judge in chambers ruling that copies of
certain documents in his possession were not privileged.

         The Chief Justice has set out the facts and circumstances in his reasons for judgment, and I will not repeat
them except to the extent that I feel it necessary to illustrate why I have reached a different conclusion from my
colleagues. I would dismiss this appeal. I would rigidly circumscribe the ambit of the lawyer brief privilege.

         Rule 26(1) requires a party to an action to deliver, on demand, a list of documents which are or have been
in his possession or control relating to any matter in question in the action and produce these documents. The courts



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have universally adopted the judgment of Lord Esher in Compagnie Financiere v. Peruvian Guano C2., (1882), 11
Q.B.D. 55 at 63 as determining when a document relates to a matter in question. Rule 26(2) provides that where a
claim is made that a document is ―privileged from production‖, counsel must claim privilege for a specified
document an .......... a statement of the grounds of the privilege‖.

         Counsel for the plaintiff relies on the case of Susan Hosiery Limited v. The Minister of National
         Revenue, [1969] 2 Ex. C.R. 27. At p. 33, Jackett P. stated that there were two principles involved
         in legal professional privilege. I will refer to them, briefly, as (1) solicitor-client privilege and (2)
         lawyer brief privilege (sometimes referred to as litigation privilege). According to Jackett P. the
         privilege under (2) relates to ―all papers and materials created or obtained specially for the
         lawyer‘s ‗brief‘ for the litigation, whether existing or contemplated . ..........‖

         Although counsel for the plaintiff concedes that the original of the documents obtained from third parties
are not privileged, he submits that the photocopies are privileged because they were obtained in the course of
preparing the lawyer‘s brief. I think that it is appropriate to recall what Wigmore said about solicitor and client
privilege (adopted by the Supreme Court in Baker et al., [1976] 1 S.C.R. 254). In Vol. VII, (McNaughton Revision)
s. 2285 p. 527, Wigmore states:

         Looking .......... upon the principle of privilege, as an exception to the general liability of every
         person to give testimony upon all facts inquired of in a court of justice, and keeping in view that
         preponderance of extrinsic policy which alone can justify the recognition of any such exception
         .........., four fundamental conditions are recognized as necessary to the establishment of a privilege
         against the disclosure of communications:

         (1) The communications must originate in a confidence that they will not be disclosed.

         (2) This element of confidentiality must be essential to the full and satisfactory maintenance of
         the relation between the parties.

         (3) The relation must be one which in the opinion of the community ought to be sedulously
         fostered.

         (4) The injury that would inure to the relation by the disclosure of the communications must be
         greater than the benefit thereby gained for the correct disposal of litigation.

         Only if these four conditions are present should a privilege be recognized.

                                                                                             (author‘s emphasis)

         As the lawyer brief privilege is simply an aspect of solicitor-client privilege, I would circumscribe the
ambit of the lawyer brief privilege by a reference to these four rules.

         McCormick on Evidence (3rd ed) observes at p. 171 that the vast majority of the rules of evidence ―..........
have as their common purpose the elucidation of the truth, ..........‖ He continues at p. 171:

         By contrast the rules of privilege, .......... are not designed or intended to facilitate the fact finding
         process or to safeguard its integrity. Their effect instead is clearly inhibitive; rather than
         facilitating the illumination of truth, they shut out the fight.

         In Waugh v. British Railways Board, [1979] 2 All E.R. 1169, Lord Edmund-Davies observed at p. 1182:

         Justice is better served by candour than by suppression. For, as it was put in the Grant v. Downs
         majority judgment, ―privilege .......... detracts from the fairness of the trial by denying a party
         access to relevant documents or at least subjecting him to surprise‖




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                                                                                                  (my emphasis)

         Rule 1(5) states that ―the object of these rules is to secure the just, speedy and inexpensive
         determination of every proceeding on its merits‖.

         In my view, we may attain this object only if we promote full disclosure and rigidly circumscribe the
concept of privilege, including the lawyer brief privilege. I think that this has been the trend of the decisions of this
court in recent years; Gergely et al. v. Ellingson (September 11, 1978, No. CA780747); Dufault v. Stevens et al.
(1978), 86 D.L.R. (3d) 671; Bates v. Stubbs (1979), 101 D.L.R. (3d) 623; Blackstock v. Patterson et al. (1978), 95
D.L.R. (3d) 362; Voth Bros. Construction (1974) Ltd. v. North Vancouver S. Dist. No. 44 Board of School Trustees
et al. (1981), 29 B.C.L.R. 114; Shaughnessy Golf & Country Club v. Uniguard Services Ltd. et al. (1986), 1
B.C.L.R. (2d) 309.

         In Gergely, Chief Justice Farris gave the judgment of the majority. He said at p. 4 of his judgment:

         I take the position that this Rule is remedial [Rule 30(1)(4)] and it is intended to give litigants the
         right to know each other‘s case in advance. It is part of the modern philosophy that there should
         not be trials by ambush but that there should be full disclosure between the two parties in order (a)
         that the matter may be settled, without going to court, or (b) that, if it goes to court, there will be a
         trial with both sides being fully informed as to the other side‘s case. Therefore, I think this Rule
         should not receive a restricted interpretation.

         Members of this Court have referred to this passage with approval from time to time in the course of
dealing with the object of the rules: see Bates v. Stubbs at pp. 629-30.

          In the Voth Bros. Construction case, this Court adopted the approach of the House of Lords in the Waugh
case, namely, that the test for privilege should be the dominant purpose test. In adopting the dominant purpose test
for privilege, the House of Lords preferred the view of Barwick, C.J., who dissented, in the Australian case of Grant
v. Downs (1976), 135 C.L.R. 674. The majority of the court in Grant v. Downs decided that privilege should only be
granted to documents which were brought into being for the sole purpose of litigation. The House of Lords decided
that the dominant purpose test enunciated by Barwick, C.J. was the more appropriate. The headnote in the report of
Waugh to which I have referred above, accurately sets out what I think is the ratio of the case:

         The court was faced with two competing principles, namely that all relevant evidence should be
         made available for the court and that communications between lawyer and client should be
         allowed to remain confidential and privileged. In reconciling those two principles the public
         interest was, on balance, best served by rigidly confining within narrow limits the privilege of
         lawfully withholding material or evidence relevant to litigation. Accordingly, a document was
         only to be accorded privilege from production on the ground of legal professional privilege if the
         dominant purpose for which it was prepared was that of submitting it to a legal advisor advice and
         use in litigation. Since the purpose of preparing the internal enquiry report for advice and use in
         anticipated litigation was merely one of the purposes and not the dominant purpose for which it
         was prepared, the board‘s claim of privilege failed and the report would have to be disclosed.

                                                                                                  (my emphasis)

         At p. 1172, Lord Wilberforce made certain observations which I consider to be apt in this case:

         . . before I consider the authorities, I think it desirable to attempt to discern the reason why what is
         (inaccurately) cared legal professional privilege exists. It is sometimes ascribed to the exigencies
         of the adversary system of litigation under which a litigant is entitled within limits to refuse to
         disclose the nature of his case until the trial. Thus one side may not ask to see the proofs of the
         other side‘s witnesses or the opponent‘s brief or even know what witnesses will be called: he must
         wait until the card is played and cannot try to see it in the hand.




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         The fact that a party may be required to disclose the memorandum or statement of a prospective witness
does not necessarily mean that person will be called as a witness. It does provide, however, an opportunity for
counsel for the opposite party to investigate circumstances and to be prepared for the eventuality in case that person
does testify.

          Counsel for the defendant concedes that in this case he is not entitled to see the brief of counsel for the
plaintiff but he submits that if the documents are not privileged, initially, they should be produced for discovery if
they relate to a matter in question, otherwise the defendant will be taken by surprise at the trial. I agree with this
submission. I reiterate that the object of the rules is set out in Rule 1(5) and that we can attain this object only by
rigidly circumscribing the concept of lawyer brief privilege. I think that this principle is the essence of the decisions
in the cases of Waugh, Voth Bros. Construction, and Shaughnessy Golf & Country Club.

         There is no case which requires this Court to adopt the lawyer brief rule, to the extent proposed by counsel
for the plaintiff, including the cases of Anderson v. Bank of British Columbia (1876), 2 Ch.D. 644 and Lyell v.
Kennedy (1884), 27 Ch.D.1. The courts decided these cases over one hundred years ago, and they certainly do not
manifest the so-called ―modern‖ approach. I appreciate that in Watson v. Cammell Laird & Co., [1959] 1 W.L.R.
702 the Court of Appeal followed Lyell v. Kennedy, but I think that these decisions are not in accord with the
avowed purpose of our rules as set out in Rule 1(5) and, certainly, are contrary to the decisions in Voth Bros.
Construction and Shaughnessy Golf & Country Club.

         I fail to comprehend how original documents which are not privileged (because they are not prepared with
the dominant purpose of actual or anticipated litigation) can become privileged simply because counsel makes
photostatic copies of the documents and puts them in his ‗brief‖. This is contrary to the intent of the rules and to the
modern approach to this problem. If a document relates to a matter in question, it should be produced for inspection.

         I think that the chambers judge was right in considering that since the documents were not brought into
being for the dominant purpose of getting advice from a lawyer, or for use in litigation (actual or anticipated) they
were not privileged and that the copies should not be privileged even though they were used in the lawyer‘s brief.
Unless the party advancing a claim for privilege is able to depose that the documents owe their origin to the
dominant purpose of obtaining legal advice or to conduct or aid in the conduct of litigation which at the time of its
origin was in reasonable prospect, the court should refuse a claim for privilege: Shaughnessy Golf & Country Club I
am not prepared to accept the proposition that documents which originally were not privileged should become
privileged simply because they have become part of the lawyer‘s brief in his preparation for trial.

         The defendants submit, also, that the plaintiff has not sufficiently identified the documents for which he
claims privilege in the list of documents. I agree with this submission.

         Accordingly, I would dismiss the appeal.

CRAIG J.A.




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                                        Keefer Laundry Ltd. v. Pellerin Milnor Corp. et al.

British Columbia Supreme Court
Vancouver Registry
Judgment: August 2, 2006

GRAY, J.:

I.     INTRODUCTION

[1]           Both the plaintiff and the defendant Pellerin Milnor Corp., which I refer to as Milnor, brought
applications for production of documents. The applications raised practice issues regarding the appropriate evidence
to be filed by a party resisting production of documents on the basis of privilege. The application also raised the
issue of when the court should exercise its discretion under Rule 26(12) to examine a document to decide the
validity of the claim of privilege.

[2]          The plaintiff, which I sometimes refer to as Keefer, operates a commercial laundryfacility. Milnor
manufactured commercial laundry equipment that was installed in Keefer‘s premises. Keefer alleges that the
equipment was unfit. It alleges that the equipment sometimes caused laundry to become torn, rusted, and oil-
stained, and that the equipment failed to segregate the laundry between various batches and customers. Keefer sued
Milnor for alleged breach of contract, including various guarantees and warranties, and breach of the warranties
under the Sale of Goods Act, R.S.B.C. 1996, c. 410. Keefer also alleges that Milnor was negligent and made
negligent representations about the equipment‘s abilities.…

         (b)    Particular Claims of Lawyer-Client Privilege

[55]        Lawyer-client privilege, also termed solicitor-client privilege, is the ―highest privilege‖ recognized by the
courts because communications between lawyers and their clients are essential to the effective operation of the
adversarial justice system. Clients seeking legal advice must be able to communicate with lawyers without fear that
their communications may be disclosed to anyone else. Otherwise they are likely to censor themselves, and their
lawyers will be unable to accurately discern the legal issues involved or provide adequate representation before and
during trial. (Smith v. Jones, [1999] 1 S.C.R. 455, 62 B.C.L.R. (3d) 209 at paras. 44-47).

[56]     Lawyer-client privilege is a rule of evidence, a fundamental civil and legal right, and a principle of
fundamental justice in Canadian law…

[57]       The courts have continually affirmed that the protection of confidentiality provided by lawyer-client
privilege must be as close as possible to absolute to ensure public confidence. As a class privilege, it does not
involve a balancing of interests on a case-by-case basis. Disclosure of information subject to lawyer-client privilege
must be ordered only when it is absolutely necessary to achieve the ends of justice. …

[58]       A party asserting that a document is privileged bears the onus of establishing the privilege. (Hamalainen
v. Sippola, (1991), 62 B.C.L.R. (2d) 254, [1992] 2 W.W.R. 132 (C.A.).)

[59]       The applicable legal test is different for each of the three distinct kinds of lawyer-client privilege: Legal
Advice Privilege, Litigation Privilege, and Lawyer‘s Brief Privilege. Some of the confusion in this area of law
arises from confusion between the different kinds of lawyer-client privileges.

                            (i)     Milnor's claim of Legal Advice Privilege over documents #5, 20, 34, 37, 41-
                            43, 47, 49-52, 54, 58, 82, 86, 94, and 95.

[60]      Not every item of correspondence passing between a lawyer and client is privileged. Privilege can only
be claimed document by document, and each document must meet the following criteria: (i) a communication
between lawyer and client; (ii) that entails the seeking or giving of legal advice; and (iii) that is intended to be



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confidential by the parties. (Solosky v. Canada, supra.) Legal advice is not limited to explanations of law; it
includes advice as to what a client should do in a particular legal context.

[61]         A lawyer is not a safety-deposit box. Merely sending documents that were created outside the solicitor-
client relationship and not for the purpose of obtaining legal advice to a lawyer will not make those documents
privileged. Nor will privilege extend to physical objects or ―neutral‖ facts that exist independently of clients‘
communications. (R. v. Murray, (2000), 48 O.R. (3d) 544, 186 D.L.R. (4th) 125.)

[62]       Some facts that at first appear to be neutral may be held to be privileged. For example, lawyer‘s fees may
remain privileged because the fee charged may disclose information about the nature and extent of the lawyer-client
relationship. (Maranda v. Richer, [2003] 3 S.C.R. 193, 2003 SCC 67.)

[63]         Lawyer-client privilege only protects communications arising from the lawyer-client relationship. Casual
discussions or conversations with someone who happens to be a lawyer are not privileged, nor is information shared
with in-house counsel who is acting in the capacity of a business or policy advisor rather than as legal counsel…
The lawyer must be acting in a professional capacity at the time the information is relayed, although no formal
retainer is required before privilege will attach. …

[64]       To determine whether the lawyer is acting in a professional legal capacity at the relevant time, the court
will consider general evidence of the nature of the relationship, the subject matter of the advice, and the
circumstances in which it was sought or rendered. (R. v. Campbell, supra.) However, lawyers asserting privilege
must be careful to avoid providing so much information that it will constitute a waiver of the very privilege that is
claimed. …

                            (ii)    Milnor's claim of Litigation Privilege over documents #53, 60, 88, and 93.

[91]       Litigation Privilege protects documents and communications made for the ―dominant purpose‖ of
preparing for ongoing or reasonably anticipated litigation, even if those documents are generated by third parties. …

[92]         This Litigation Privilege operates in tandem with the Lawyer‘s Brief Privilege to create a zone of privacy
to facilitate adversarial preparation. Litigation Privilege has a narrower, more limited rationale than the privilege
afforded to Legal Advice Privilege over confidential communications between lawyers and their clients. Although
Litigation Privilege does protect the confidentiality of the lawyer-client relationship to some extent, the thrust of
Litigation Privilege is the proper functioning of the adversarial system. The B.C. Court of Appeal has suggested that
this means that even non-confidential information may be protected by Litigation Privilege if the relevant document
was created for the dominant purpose of litigation. (College of Physicians of British Columbia, supra.)

[93]        Because communications between lawyers and their clients are covered by Legal Advice Privilege, and
communications and documents collected by lawyers from third parties for the purpose of formulating and giving
legal advice to clients are covered by Lawyer‘s Brief Privilege, Litigation Privilege is properly limited to
communications between clients and third parties, and to documents created by clients or third parties, for the
dominant purpose of pursuing litigation. However, communications between lawyers and third parties in the context
of litigation are sometimes considered to be covered by Litigation Privilege, rather than Lawyer‘s Brief Privilege,
because they in fact are covered by both subsets of lawyer-client privilege.

[94]       Reports from third parties are privileged if they are produced for the dominant purpose of furthering
contemplated litigation. The courts will examine the true nature of the relationship of the third party to the litigation
and the services rendered before recognizing privilege in third party communications. (College of Physicians of
British Columbia, supra; Foster Wheeler Power, supra.)

[95]        Rule 40A of the Rules of Court requires disclosure of expert reports sixty days before the report will be
tendered in evidence. The report remains privileged until it is disclosed, even if the party has consented to provide
the report.




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[96]        Litigation Privilege must be established document by document. To invoke the privilege, counsel must
establish two facts for each document over which the privilege is claimed:

                     1.     that litigation was ongoing or was reasonably contemplated at the time the document was
                     created; and

                     2.     that the dominant purpose of creating the document was to prepare for that litigation.

(Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada (2005), 40 B.C.L.R. (4th) 245, 2005 BCCA 4 at
paras. 43-44.)

[97]      The first requirement will not usually be difficult to meet. Litigation can be said to be reasonably
contemplated when a reasonable person, with the same knowledge of the situation as one or both of the parties,
would find it unlikely that the dispute will be resolved without it. (Hamalainen v. Sippola, supra.)

[98]       To establish ―dominant purpose‖, the party asserting the privilege will have to present evidence of the
circumstances surrounding the creation of the communication or document in question, including evidence with
respect to when it was created, who created it, who authorized it, and what use was or could be made of it. Care
must be taken to limit the extent of the information that is revealed in the process of establishing ―dominant
purpose‖ to avoid accidental or implied waiver of the privilege that is being claimed.

[99]         The focus of the enquiry is on the time and purpose for which the document was created. Whether or not
a document is actually used in ensuing litigation is a matter of strategy and does not affect the document‘s privileged
status. A document created for the dominant purpose of litigation remains privileged throughout that litigation even
if it is never used in evidence. …

                             (iii)   Milnor's claim of Lawyer’s Brief Privilege, Documents #3, 55, 57, 59, and 96-
                             114.

[103]     Lawyer‘s Brief Privilege protects the lawyer‘s work product, including any notes and information or
reports collected to prepare for litigation or to give legal advice. If a group of unprivileged documents is collected,
the collection itself becomes privileged. …

[104]     This privilege is based on the theory that no one should be permitted to ―look into the mind‖ of the lawyer
as he or she is preparing a case. The purpose of Lawyer‘s Brief Privilege is to ensure that the lawyer can make all
necessary inquiries so that he or she is able to give the client complete advice and to properly prepare for litigation.
 (Hodgkinson v. Simms, supra.)

[105]   In order for Lawyer‘s Brief Privilege to attach, there must be an exercise of the lawyer's skill and judgment
in assembling the allegedly privileged information.

…




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                        G.W.L. Properties v. W.R. Grace (1992 BCSC)(Documents)

British Columbia Supreme Court

Lowry J. - The Plaintiffs apply to strike out the defence of W.R. Grace & Co. -- Conn. on the ground that Grace has
made misleading representations to the Court in resisting an application made by the Plaintiffs for a further and
better list of documents, and has concealed documents that should have been produced. Alternatively, the Plaintiffs
seek, in the main, an order requiring Grace to deliver, within seven days, a list, enumerating in a convenient order
(including the date, author, recipient and subject matter), all documents in its possession or control that are relevant
to the issues in this action. The application is unique in that Grace claims to have in excess of one million
discoverable documents.

         This is a products liability case. The Plaintiffs own office towers they say contain asbestos-bearing
insulation manufactured or supplied by Grace, and others, that was installed when the towers were built between
1965 and 1974. They say the insulation is hazardous to human health and claim, in negligence, damages, said to
amount to many millions of dollars, relating to the management and removal of the product as well as lost revenue
and property value. The Defendants dispute all aspects of the allegations made by the Plaintiffs. The issues in the
action are many. Fundamental to the production of documents by Grace is the question of the state of the
manufacturers‘ knowledge about the hazards, if any, associated with the use of asbestos in the products installed in
the towers.

          The issues that arise on this application are primarily two: Has Grace deliberately misled the Court, or
concealed producible documents, such that it should be denied its right to defend this action? If not, what, if any,
further list of documents must it deliver?

The Proceedings

         The action was commenced in February 1990. For reasons that are not for present purposes particularly
important, it was not until May 1991 that the Plaintiffs began to press Grace for production of documents. Grace has
delivered three lists of documents. They are said to disclose for discovery the contents of more than 460 boxes (i.e.
more than one million documents) that are stored in a repository in Boston, Massachusetts. The first list was
delivered in June 1991. It consists of 621 documents each of which is itemized by date where possible and each is
briefly described. The second list was delivered in October 1991. It contains a list of 460 boxes. The description of
each box is very similar. The following are a few examples:

         59.         various dates -- ―Bankers Box‖ bearing no. 58 containing documents no. 20127498 to
                     20130527;

         169.        various dates -- ―Bankers Box‖ bearing no. 55 containing documents no. 25096932 to
                     25097180, and invoices no. 35100979 to 35104576;

         342.        various dates -- Box of documents bearing no. 10B, 1 of 2;

         421.        various dates -- Box of documents bearing no. C-2;

         459.        various dates -- Box of documents bearing no. 39;

         460.        various dates -- Box of documents bearing no. C-1;

The third list was delivered in February 1992. It consists of 372 documents individually described in the same way
as the documents in the first list. Grace says that none of the documents described in the first or the third list are
included in the second. There is no duplication.




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          In April 1992, the Plaintiffs made application for a further and better list of documents in relation to the
second list. Grace opposed the application on the ground that a further list was unnecessary and the application was
premature. I was told the repository was established because Grace faced a large volume of asbestos-related
litigation in the United States. The documentation had been inspected by many American counsel; none had been
given a list of what was in the repository, and indeed, as a matter of American litigation practice, Grace was not
required to provide any list of its discoverable documents. Grace said then that its own Vancouver solicitors had
completed extensive reviews of the Boston repository, and all other document sources. The reviews, were said to
have been accomplished without the benefit of a list or catalogue of documents as none existed.

          It was contended that, having regard for the task Grace would face in providing a more detailed list, the
Plaintiffs should at least attend at the repository and inspect the documents assembled there before pursuing their
application. I decided the Plaintiffs‘ application should be adjourned until they had made an assessment of the
documentation in the repository and of what further listing they required to ensure they would be given the
discovery to which they are entitled.

         The following month two of the Plaintiffs‘ solicitors travelled to Boston and spent a full week inspecting
documents in the repository. They say they found the organization of the documents to be practically unworkable
and the integrity of the production in doubt. They managed to work through only 35 of the 460 boxes. They asked
for 6250 pages of the documents they saw to be copied.

         Thereafter the Plaintiffs sought to press their application but Grace has, until now, not been in a position to
respond. The circumstances, however, are such that Grace is not to be criticized for the time which has now elapsed.

          The application has been revised because, through American attorneys who have acted against Grace in
similar litigation, the Plaintiffs have determined that Grace does have some lists of its documents. The Plaintiffs say
Grace misled the Court in suggesting none existed. It is now common ground that the following lists exist:

         (a)         a hand written, 25,000 page list of twelve million documents from which the documents
                     in the 460 boxes in the Boston repository were drawn;

         (b)         a list of 40,000 privileged documents;

         (c)         an incomplete Source Index relating to the Boston repository;

         (d)         an index of some documents at a law firm representing Grace (Goodwin, Proctor &
                     Hoar); and

         (e)         an index to what are referred to as the Grace Notice of Hazard Documents.

          In addition, Grace acknowledges that it has for some period of time, utilized computer assistance for the
retrieval of documents at the Boston repository and it has had some of the relevant documentation reproduced on
microfilm.

          The evidence adduced on this application, now, establishes that in 1983 Robert Murphy, an attorney with
the Boston firm of Castner & Edwards, who represent Grace, was put in charge of overseeing the discovery of
documents to be given in the asbestos-litigation with which Grace was, and has since been, faced. The suits in the
United States against Grace exceed thirty thousand. Mr. Murphy caused a sweep of the forty-five Grace offices and
plants to be made. The documents were collected at the company‘s offices at Cambridge, Massachusetts. The sweep
produced twelve million documents in about 2000 boxes that Mr. Murphy has described as ―generally relevant.‖ I
understand that ―possibly relevant‖ might be a better description. These were documents that, broadly, had anything
to do with asbestos or asbestos-containing products. The twenty-five thousand page list is a record of those
documents. It was prepared by Casner & Edwards‘ paralegal staff under Mr. Murphy‘s direction. The form of the
list shown to me provides for a piece by piece description (file, title, approximate dates) and a determination of
whether an item was considered to be irrelevant, a trade secret, producible, or privileged.




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        The documents were then culled and the paralegals‘ analysis reassessed by attorneys. The twelve million
documents were reduced to one million that were to be produced. Grace says the ultimate determination of what
was considered relevant cannot be ascertained from the paralegals‘ list.

          After the attorneys‘ reassessment, relevant and producible documents were sent to the repository in Boston
(460 boxes). Some relevant documents were retained in a repository at Cambridge (advertising, trade secrets, Grace
employee medical records, and certain offshore sales documents) and some irrelevant documents were retained there
as well (600 boxes). I understand the remaining documents, all considered to be irrelevant, were returned to the
office or plant from which they had been obtained. Grace says that no record was kept of what documents were in
fact sent to the Boston repository.

The Application to Strike the Defence

          In answer to the Plaintiffs‘ contention that the Court was misled, Grace stands by what was said in April
when the original application was adjourned. Grace says there is no list of what is in the Boston repository. It says
the five lists of documents that do exist have not been of any assistance to its Vancouver solicitors. The lists will not
assist the Plaintiffs and, although they are regarded by Grace to be privileged attorney work product, Grace will
consent to an order that they be produced for inspection provided they are kept confidential.

         I do not consider that Grace has been shown to have misled the Court or to have concealed producible
documents. I have not seen the lists of documents that exist and I am in no position to assess the extent to which
they may be at odds with Grace having said no lists that would have assisted their Vancouver solicitors in reviewing
their documents exist. It certainly has not been established that the solicitors made use of any lists, and I understood
that to be the point of the representation that Grace made. Grace maintains that the lists that exist are of no real
assistance in reviewing its documents and there is no basis on which I can conclude otherwise. Further, I have not
been shown any document that can be said to be a document Grace has in fact concealed.

         The application to strike out the Grace defence will accordingly be dismissed. There will, however, be an
order that Grace produce four of the five lists to the Plaintiffs for inspection at Vancouver and the fifth (the Hazard
Documents index) at Boston. It will be a term of the order that the production be kept confidential. The Plaintiffs
contest the privilege claimed and resist an unqualified disclosure but, because the lists are being produced
voluntarily, it is unnecessary to rule on the question of privilege now. It will remain open to the Plaintiffs to
challenge the privilege once they have seen the lists that Grace says are of no real value, and decided what, if any,
use they may wish to make of them.

A Further List of Documents

         I turn to consider the alternative relief the Plaintiffs seek: a further and better list of documents.

         The Plaintiffs contend, in effect, that they are entitled to have all of the documents produced by Grace (i.e.
one million of them) listed and individually described as has been done with respect to the 993 documents itemized
in the first and third list. They say that is necessary to permit them to properly inspect the documents in the
repositories and to ensure they will not be surprised at trial by Grace tendering documented evidence they have not
seen. They rely on the rule governing lists of documents and say Grace should be able to produce a list, in the form
sought, in seven days.

         The Rules of Court provide:

         (1). .......... and [Grace] shall comply with the demand within 21 days by delivering a list, in Form
         93, of the documents that are or have been in [Grace‘s] possession or control relating to every
         matter in question in the action enumerating the documents in a convenient order with a short
         description of the documents.

        Grace adheres to its original position. It contends the lists of documents it has delivered satisfy the rule.
The position is, in my view untenable. The second list Grace delivered is of no real value at all. It discloses almost



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nothing about the documentation produced except that there is a lot of it. Counsel says it is open to the Court in
assessing the adequacy of the list to consider information given to the Plaintiffs‘ solicitors verbally when they went
to inspect the documents in Boston, and information the Plaintiffs can obtain from other sources. I disagree. A list of
documents must meet the requirements of the rule. The second list delivered by Grace falls far short.

         On the authority cited on this application I find the following statements to be particularly instructive:

         1. Where possible, documents should be listed singly and should be numbered to correspond with
         the numbers appearing in the [list] of documents. In cases where groups of documents having to
         do with the same subject matter or coming from the same source or having some other common
         denominator between them are voluminous they may be listed in groups with sufficient detail to
         enable the other party, upon reading the list, to understand generally what they contain, where they
         originated, when they originated and the number of pieces within the group. The whole group
         should then be marked with the identifying number which appears in the [list]: Visa International
         Service Association v. Block Bros. Realty Ltd. (1983), 45 B.C.L.R. 305 at 307 (S.C.).

         2. The decision of what is and what is not relevant must lie initially upon counsel preparing the
         list. Our rules depend upon his or her diligence in searching out from the client what documents
         are or have been in its possession and upon his or her integrity in listing those which are relevant.
         The decision of relevance must not be left to the client even where the client includes upon its staff
         a member of the bar of this or any other country. The decision must be counsel‘s: Visa
         International at 308. See also Boxer v. Reesor (1983), 43 B.C.L.R. 352 at 357 (S.C.).

          I consider these two statements indicative of what compliance with the Rule requires. I do not consider the
Plaintiffs can be denied a list of documents that conforms with the Rule. It requires an ordered enumeration and
some description of all relevant documents.

          There is, of course, some flexibility in the form of list that will be most suitable in any given case.
Generally, the party giving discovery is in the best position to decide on the format that will enable the opposing
party, upon reading the list, to understand what the documents listed are about. It is not always possible, nor
desirable, that documents be listed individually by date as the Plaintiffs wish in this instance. Sometimes, where
large volumes of documents are produced, a more worthwhile description can be achieved by grouping documents,
or files of documents, that relate to a particular subject, or time period, or geographical location of origin, or some
other relevant common ground. Groupings of documents may, in some circumstances, be quite large. What is
important is that the list provide the party seeking discovery with a meaningful, reliable, and complete disclosure as
well as an effective aid to retrieving the documents produced when an inspection is conducted. What is required in
each case depends on the nature of the documentation that must be described. In my view, the ingenuity of counsel
in the approach taken to drawing a list of documents that serves the purpose of the rule is an essential element of the
discovery process, at least in the conduct of complex commercial litigation that involves large volumes of
documents generated from a variety of different sources over a period of many years as in this case.

          In resisting this application, Grace says the task of preparing a further and, more importantly, better list of
documents will be onerous, but it is not said that it cannot for some reason be done and done promptly. The evidence
upon which Grace relies discloses no undue hardship to be faced. Grace and its attorneys have been working with
the documents in the repository at Boston continuously for nine years. They have had the benefit of the continuity in
the production of documents that Mr. Murphy has provided throughout. They have computer assistance for the
retrieval of documents as well as microfilm reproduction. I consider it reasonable to assume a level of familiarity
with the contents of the 460 boxes at Boston sufficient to permit Grace to deliver a meaningful list of documents
without an inordinate delay.

          There will accordingly be an order that Grace deliver a list of all documents relevant to the matters in
question in this action, i.e. all documents that not only would be evidence upon any issue, but also which, it is
reasonable to suppose, contain information which may -- not which must -- either directly or indirectly enable the
Plaintiffs either to advance their own case or to damage the case for Grace: Compangnie Financiere du Pacififque v.
Peruvian Guano Co. (1882), 2 Q.B. 55 at 63 (C.A.). The list will include relevant documents at the Boston
repository and anywhere else. It will specifically include documents in any of the Grace libraries. It will include the


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relevant documents at the Cambridge repository; although, the identity of the individuals whose medical records are
produced need not be disclosed.

          The list will be drawn in a form that meets the requirements of the rule having regard for the comments I
have made. Grace will, within fourteen days, deliver to the Plaintiffs an outline of the format it intends to employ
and a statement of the time it expects to require to deliver the list. The parties will thereafter be at liberty to speak
further to the matter as may be required.

         Grace will deliver an affidavit verifying its list of documents when the list is delivered. Grace will shortly
thereafter make the deponent of the affidavit available to be examined by the Plaintiffs in respect of all aspects of
Grace‘s production of documents.

Costs

         In my view the necessity of this application can be attributed only to a failure on the part of Grace to
deliver a list of documents that meets the requirements of the Rules of this Court governing the conduct of this
action. The Plaintiffs will have their costs of the application in any event of the cause. They seek an indemnity for
agent‘s fees relating to the motion and the expenses associated with their inspecting the documents in Boston in
May. I do not consider an order for such an indemnity on this interlocutory application would be appropriate.




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                                                       Dufault v. Stevens and Stevens

British Columbia Court of Appeal
April 25, 1978

CRAIG, J.A.: - The defendants (appellants) appeal from refusal of the Judge in Chambers on an application by the
plaintiff (respondent) under Rule 26(11) of the Supreme Court Rules to include a provision in the order that the
defendants should have the same rights to production and inspection and the obtaining of copies of the hospital
records as the Judge granted to the plaintiff.

         The respondent commenced an action against the appellants claiming damages for injuries suffered by him
on or about July 15, 1976, as a consequence of the alleged negligence of Susan A. Stevens in the operation of a
motor vehicle which was owned by Evelyn Barbara Stevens. On January 30th of this year, the respondent applied to
a Judge in Chambers for an order that:

         (a) Within three days of delivery by mail of this order Surrey Memorial Hospital do prepare and
         deliver by mail to the Solicitor for the Plaintiff Emile Dufault Three (3) complete clear legible
         certified copies of the hospital records of the Plaintiff excluding x-rays for any admission for
         treatment of the injuries or condition which are the subject of this proceeding and in particular the
         admission on or about the 15th day of July, 1976.

         (b) Within three days of a written request by the Solicitor for the Plaintiff the original of all
         documents in the possession, custody or control of the said Hospital including x-rays and relating
         to the Plaintiff be produced for inspection by the Plaintiff‘s Solicitor and that within three days of
         a further request in writing by the Solicitor for the Plaintiff the said Hospital do make and deliver
         by mail to the Solicitor for the Plaintiff three (3) complete clear legible certified copies of any
         other documents in the possession, control or custody of the said Hospital if reproducible and
         which are identified by the Solicitor for the Plaintiff as relevant to the issues in this proceeding;

         (c) All reasonable and proper costs of preparing, delivering or producing such documents be paid
         promptly after such delivery or production;

         (d) Such certified copies may be used in evidence in this proceeding instead of the original of
         such documents.

         Counsel for the appellants did not oppose the application but submitted that the Chambers Judge should
make the same order with respect to the appellants and submitted, also, that the phrase ―other documents‖ in para.
(b) should read ―of the said documents‖. The Judge did not accede to the appellants‘ submission but granted the
application of the respondent in terms of the notice of motion by endorsing the notice of motion. As the Judge‘s
reasons for rejecting the appellants‘ submission were not recorded, his precise reasons for not making the order
requested by the defendant are not known.

         The appellants‘ grounds of appeal are as follows:

         (1) ..........

         (a) that the learned Chambers Judge failed to exercise his discretion judicially.

         (b) that the learned Chambers Judge exercised his discretion on a wrong principle of law or
         practice.

         (c) that the failure of the learned Chambers Judge to grant the terms sought by the Appellants will
         lead to unnecessary duplication of Chambers‘ applications, and unnecessary expense.




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         (2) ..........

         that the learned Chambers Judge failed to exercise his discretion judicially in omitting to apply the
         correct and guiding principles laid down in Rhoades v. Occidental Life Insurance Company of
         California [1973] 3 W.W.R. 625 (B.C.C.A.).

         Rule 26(11) came into force in February of last year as part of the new Supreme Court Rules, 1976. It
provides:

         (11) Where a document is in the possession or control of a person who is not a party, the Court,
         on notice to the person and all other parties, may order production and inspection of the document
         or preparation of a certified copy that may be used instead of the original.

          Although the wording of the present Rule is somewhat different than O. 31, M.R. 361, 362A, r. 20A,
Supreme Court Rules, 1961, the meaning of the Rule is essentially the same as Rule 26(11). The phrase ―and the
production of the document at a trial might be compelled‖ does not appear in the present Rule but as this Court in
Rhoades v. Occidental Life Ins. Co. of California, [1973] 3 W.W.R. 625, held that this phrase did not mean that the
document had to be admissible at the trial, the omission of the phrase is not significant. Also the former Rule
provided that the Judge could direct the production and inspection of a document ―and may give directions
respecting the preparation of a copy that may be used for all purposes in lieu of the original‖. The present Rule says
that the Judge may order production and inspection of a document ―or preparation of a certified copy that may be
used instead of the original‖. In the context I think that the word ―or‖ must be read as ―and‖. I think that the
reference to the English Rule should be to ER 24/7A, not ER 24/7. However, the wording of this Rule is not the
same as the wording of ER 24/ 7A. The cases relating to ER 24/7A do not assist in the interpretation of Rule 26(11).
The English Rule deals with the applications under ss. 31 or 32 of the Administration of Justice Act, 1970 (U.K.), c.
31, for an order for disclosure of documents by a person who is not a party to the proceedings, but the Rule applies
only to actions and claims for personal injuries.

         Counsel for the appellants submits that if a Judge makes an order under Rule 26(11) for the production,
inspection and preparation of copies which may be used in lieu of the original in favour of a party who makes an
application for such an order he should, as a general rule, grant the same order to any other party who appears on the
application and who requests such an order. He submits that the failure of a Judge to make the order in these terms
without reasonable grounds constitutes an error in principle and that, in this case, the Judge did not have any
reasonable grounds for refusing to grant the appellants the same rights with respect to these hospital records as he
granted to the respondent.

          On the other hand, counsel for the respondent submits that when a plaintiff in a personal injury case applies
under Rule 26(11) for the production and inspection of documents which the hospital has in its possession pertaining
to the plaintiff and for preparation of copies of these documents a Judge should not grant the same order to a
defendant who appears on the application and seeks such an order because this would tend to destroy the
―confidentiality‖ of hospital records. In support of this submission, he relies, principally, on the judgment of Trainor,
J., on an application for the production of hospital records under Rule 26(11) in the case of Bachmann et al. v.
Sandoz (Canada) Ltd. et al. (unreported No. 23112 Vancouver Registry, March 9, 1978 [since reported 6 B.C.L.R.
57]), and the submissions of counsel who appeared on the application on behalf of the association representing a
number of hospitals. Counsel for the respondent concedes that any documents which came into the plaintiff‘s
possession after the representatives had inspected them would have to be produced in the normal way on discovery
if they related to any issue in the case.

          In the Bachmann case, the plaintiff commenced an action against the defendants claiming damages for
injuries alleged to have arisen ―from the use and consumption‖ by the plaintiff of a drug or compound manufactured
by the defendants. Subsequently, the plaintiff applied under the provisions of Rule 26(11) for an order requiring two
hospitals involved ―to prepare and deliver to the plaintiffs certified copies of all the hospitals‘ records relating
directly or indirectly to the past, present or prospective condition of the plaintiff .......... and make the records
available for inspection‖ by him. Counsel for the British Columbia Health Association, to which the hospitals
belong, appeared on the application with leave of the Court. The defendants did not appear on the application nor
were they represented. Counsel for the B. C. Health Association submitted that the order should be restricted to


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―clinical records,‖ that is, records dealing solely with the care and treatment of the patient, not with other aspects of
his relationship with the hospital, such as financial dealings. He submitted that it was the primary duty of the
hospital to maintain ―confidentiality‖ and that if hospital records were subject to scrutiny by persons other than
authorized hospital staff a doctor would tend not to record confidential information which would, in turn, impair the
ability of the hospital or some future hospital to have a full record on the patient. Trainor, J., stated that the patient
had a right to know what was in his records, that this would not in any way affect the doctor/patient relationship and
that the ―general concern expressed by counsel for the hospitals and the association about disclosure of irrelevant
and perhaps embarrassing or even scandalous information is answered if the disclosure is limited to the plaintiff‖.
Although Trainor, J., said that he did not have to decide the rights of litigants other than the plaintiff‘s on the
particular application, he said that he would not make an order that the defendants were entitled to production and
inspection or copies of the records of the hospital, stating that he thought that ―they are limited to discovery in the
usual way of the material which will come into the plaintiff‘s hands as a result of the order‖ which he made. He did,
however, restrict the order in favour of the plaintiff to ―clinical records‖.

          The intent of Rule 26(11) is to provide any party to an action with the means of obtaining the production
and inspection of a document if the applicant is able to satisfy the Judge that the document contains information
which may relate to a matter in issue and of obtaining a copy of the document to use in lieu of the original in the
event that a document does contain information which may relate to a matter in issue. No party has priority to an
order for production and inspection over any other party nor any paramount right to an order for production and
inspection. A party applying for an order under Rule 26(11) must satisfy the Court that the application is not in the
nature of a ―fishing expedition‖: Rhoades v. Occidental Life Ins. Co. of California, supra. He must show that a
person who is not a party to the action has a ―document‖ or ―documents‖ in his possession which relates to a matter
in issue. The comments of Brett, L.J., in Compagnie Financiere et Commerciale du Pacifique v. Peruvian Guano
Co. (1882), 11 Q.B.D. 55 at p. 63, as to what constitutes a document relating to a matter in question, have been
quoted by this Court on several occasions:

         It seems to me that every document relates to the matters in question in the action, which not only
         would be evidence upon any issue, but also which, it is reasonable to suppose, contains
         information which may -- not which must -- either directly or indirectly enable the party requiring
         the affidavit either to advance his own case or to damage the case of his adversary. I have put in
         the words ―either directly or indirectly,‖ because, as it seems to me, a document can properly be
         said to contain information which may enable the party requiring the affidavit either to advance
         his own case or to damage the case of his adversary, if it is a document which may fairly lead him
         to a train of inquiry, which may have either of these two consequences ..........

          It follows from this that an applicant need not show that a document is admissible in evidence at the trial as
the condition of his obtaining an order under this Rule. If a party seeking the order is able to satisfy the Judge that
the document, or information in a document, may relate to a matter in issue, the Judge should make the order unless
there are compelling reasons why he should not make it, e.g., the document is privileged or -- ―grounds exist for re-
fusing the application in the interest of persons, not parties to the action, who might be embarrassed or affected
adversely by an order for production‖ -- per McFarlane, J.A., in Rhoades v. Occidental Life Ins. Co. of California,
supra, at p. 630, including the custodian of the document.

          It seems to me, however, before a Judge refuses an application for production and inspection on the
grounds that it may embarrass or adversely affect a person who is not a party to the action he should be satisfied that
(1) the probative value of the document, or the information in the document, would be slight, and (2) the production
and inspection of the document would cause so much embarrassment to the non-party, or have such an adverse
affect on him, that it would be unjust to require him to produce it for the inspection of the parties to the action.

        In determining whether he should make an order under this Rule, a Judge may require that the document be
produced for his inspection.

         Subject to these considerations, any party is entitled to an order for production and inspection of a
document which may relate to an issue in a trial notwithstanding the fact that the document may contain some
information which is irrelevant or which may contain information which might be embarrassing to one of the
parties.


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         Logically, there is no reason why an application under the Rule relating to hospital records should not be
dealt with on the same basis as an application relating to any other document. I disagree, therefore, with the view
that a defendant in a personal injury case should not have the right to production and inspection of hospital records
pertaining to the plaintiff if they are relevant merely because the records contain information which might embarrass
the plaintiff or because of the concept of confidentiality. The purpose of Rule 26(11) is to provide a litigant with the
means of ascertaining whether documents in the possession of a non-party -- whether they be hospital records or any
other type of documents -- relate to an issue in the action, or contain information which may relate to an issue in the
action, not to provide a plaintiff in a personal injury case with a means of obtaining his hospital records simply
because he would like to have his hospital records.

         In the course of his argument, counsel for the respondent referred to the judgment of the Supreme Court of
Canada in Halls v. Mitchell, [1928] 2 D.L.R. 97, [1928] S.C.R. 125, in which Duff, J., in giving the judgment from
the majority of the Court, discussed the subject of ―professional secrets‖ acquired by a physician from his patient in
the course of his practice and, in particular, referred to the statement of Duff, J., at p. 105 D.L.R., p. 136 S.C.R., as
follows:

         Nobody would dispute that a secret so acquired is the secret of the patient and, normally, is under
         his control, and not under that of the doctor. Prima facie,

         the patient has the right to require that the secret shall not be divulged; and that right is absolute,
         unless there is some paramount reason which overrides it.

         However, Duff, J., went on to point out that such communications ―are not at common law privileged from
disclosure in Courts of Justice‖. Accordingly, that case does not support the proposition that merely because the
document relates to a communication in the nature of a ―professional secret‖ between a patient and his doctor it is
not subject to an order for production and inspection under Rule 26(11).

        Might the hospital records pertaining to the plaintiff relate to a matter in issue in this case? In para. 5 of the
statement of claim, the plaintiff alleges as follows:

         5. As a result of the said collision the Plaintiff has sustained personal injury, and in particular:

         (a) Concussion;
         (b) Contusion of left eye;
         (c) Fractured rib on left side;
         (d) Bruising of both arms;
         (e) Weakness in both legs;

and the effects of the said injuries upon the Plaintiff include headaches, sleeplessness, loss of concentration,
quivering or tremor of forearms and lower legs, veering or loss of balance, visual impairment, tinnitus, marked ready
fatigueability, excessive sleepiness, reduced tolerance to alcohol, and the Plaintiff claims general damages for pain
and suffering, loss of earnings or of earning capacity, loss of enjoyment of life, personality change, loss of physical,
mental or nervous health, post concussions syndrome, loss of resistance to injury, arthritis or disease, vascular
damage, all of which said injury, loss and damage were caused or contributed to by the negligence of the Defendant,
SUSAN A. STEVENS aforesaid.

         The allegations of injuries and the effects of the injuries in the statement of claim are so wide it is difficult
to conceive of any hospital record relating to the plaintiff, whether it be concerned with the accident on July 15,
1976, or some other matter, which might not be relevant in this case. Counsel for the appellants submits that on this
basis the Judge should not have made the order in terms of para. (b) of the notice of motion which provides in part
that the hospital make and deliver to the plaintiff three ―complete clear legible certified copies of any other
documents‖ in the possession of the hospital ―which are identified by the solicitor for the plaintiff as relevant to the




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issues in this proceeding‖, i.e., that the solicitor for the plaintiff should not have the right to determine what is
relevant.

         Rule 1(5) provides:

         1(5) The object of these rules is to secure the just, speedy, and inexpensive determination of every
         proceeding on its merits.

         Rule 1(12) provides:

         (12) When making an order under these rules the Court may impose such terms and conditions
         and give such directions as it thinks just.

         Having regard to the intent of Rule 26(11) and to the intent of Rule 1(5) and (12), a Judge should make an
order for production and inspection in favour of any party who appears in the application and requests such an order
if he decides to make an order for production and inspection unless there are compelling reasons why he should not
do so.

         An order under Rule 26(11) is, of course, discretionary, and an appellate Court should not reverse the order
merely because the appellate Court would have exercised the discretion differently. However, an appellate Court
may reverse the order if it is satisfied that in making the order the Judge did not give any weight or sufficient weight
to relevant considerations: per McDonald, C.J.B.C., in Creasey v. Sweny et al. [1942] 2 D.L.R. 552, [1942] 3
W.W.R. 65, 57 B.C.R. 457, citing C. Osenton & Co. v. Johnston (1941), 110 L.J.K.B. 420.

          Although the Judge‘s reasons for refusing the defendant‘s request were not transcribed, the only basis upon
which counsel for the respondent sought to uphold the Judge‘s refusal was ―confidentiality‖. This is not a ground for
refusing to make the order also applicable to the defendants. In the absence of any other reason, I conclude that the
Judge did not give sufficient weight to the concept that the order should be made in favour of all parties to the
action, particularly bearing in mind that the object of the Rules is to ―secure the just, speedy, and inexpensive
determination of every proceeding on its merits‖. Accordingly, I think the appeal should be allowed in this respect. I
agree, also, with counsel for the appellant that the phrase ―any other documents‖ in para. (b) should read ―of the said
documents‖ because I cannot imagine how counsel for the plaintiff could identify any other documents as ―relevant
to the issues in this proceeding‖ without having made an inspection of the documents. This could not be done, of
course, without an order for inspection.

          The main issue in this appeal was whether the Judge should have made the order in favour of the appellants
as well as the respondent. The only objection to the form of the order related to the phrase ―any other documents‖ in
para. (b) of the notice of motion. In my opinion, there are several other objections to the form of the order which are
fundamental and that, therefore, the form of the order in this case should not be regarded as a precedent.

         Briefly, the respondent sought and obtained an order that

         (a)         The hospital deliver three ―clear legible certified copies of the hospital records of the
                     Plaintiff ..........‖ within three days of receipt of the Order.

         (b)         The hospital produce for inspection the original of all documents in the possession,
                     custody and control of the hospital pertaining to the respondent and that the hospital
                     make ―three .......... clear legible certified copies of any other documents.‖

         (c)         The hospital receive all ―reasonable and proper costs of preparing and producing such
                     documents .......... promptly after such delivery or production.‖

         (d)         Such certified copies should be used in evidence in the proceedings instead of the original
                     of such documents.




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         Paragraph (a) requires the hospital to produce copies of documents in the hospital‘s possession ―which are
the subject of this proceeding and in particular the admission on or about the 15th day of July, 1976‖. Why should
the hospital be required to determine what is the ―subject of this proceeding‖?

         Paragraphs (a) and (b), also, require the hospital to deliver ―three clear legible certified copies‖ of the
documents within ―three days‖ of receipt of demand, and para. (c) states that the hospital shall be paid ―all
reasonable and proper costs of preparing, delivering or producing such documents .......... promptly after such
delivery or production‖. Why should the hospital be required to deliver ―three‖ copies? The Rule contemplates
preparation of ―a‖ copy of the document. Why should a hospital be required to make ―clear legible certified copies‖
of the documents? The documents may be unclear and illegible through no fault of the hospital‘s. Why should the
hospital be required to deliver the copies of the documents within ―three days‖? This is an unreasonably short time.
Why should the hospital be required to incur the costs of preparing and delivering these documents before receiving
payment? Payment should be a condition precedent to delivery.

          Paragraph (d) states that such certified copies may be used ―in evidence in this proceeding instead of the
original of such documents‖. Doubtless, one of the intents of the present Rule, and of the former marginal rule, Rule
362A, is that a certified copy of the document may be used in evidence at the trial, but that does not mean that
regardless of the circumstances a trial Judge is bound to accept a copy of the document ―in evidence‖ simply
because a Judge made an order under Rule 26(11). The Rule provides that the Judge may order ―preparation of a
certified copy that may be used instead of the original‖. The Rule does not state that the Judge may order the
preparation of a certified copy of a document that may be used ―in evidence‖ instead of the original. Generally, a
trial Judge would admit a copy of a document in evidence, if the copy had been made pursuant to an application
under Rule 26(11), but the Rule does not compel him to admit a copy of the document. There may be circumstances
which justify the trial Judge‘s insisting that the original document be produced and entered as an exhibit.

         If a Judge makes an order under Rule 26(11) on the application of a party, he should at the request of any
other party make the order equally applicable to that party, and he should direct that any such party shall be entitled
to be present at the time production is made for the inspection of the applicant. If a party does not choose to appear
on an application under Rule 26(11) after receiving proper notice, then a Judge would be justified in refusing to
make an order in favour of that party if he makes a subsequent application for the production and inspection of the
same documents. In these circumstances, such a party would have to obtain discovery of the documents in the
normal way from the party who has the documents in his possession.

           In my opinion, the appeal should be allowed and the order should be amended in accordance with these
reasons.

           The appellants should have the costs of this appeal.

                                                                                                      Appeal allowed.




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                                                                     A.M. v. Ryan

Supreme Court of Canada
[1997] 1 S.C.R. 157

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

         Evidence -- Disclosure -- Counselling records -- Victim bringing civil action for damage allegedly caused
by defendant‟s sexual conduct -- Defendant seeking production of psychiatrist‟s counselling records and notes --
Whether documents privileged -- Whether records and notes should be produced -- British Columbia Supreme Court
Rules, Rule 26(11).

         When the appellant was 17 years old, she underwent psychiatric treatment from the respondent R. In the
course of treatment, R had sexual relations with her. He also committed acts of gross indecency in her presence. The
appellant asserts that this conduct injured her and has sued R for damages. In order to deal with the difficulties
allegedly caused by the sexual assault and gross indecency as well as other problems, the appellant sought
psychiatric treatment from the respondent P. The appellant was concerned that communications between her and P
should remain confidential, and P assured her that everything possible would be done to ensure that this was the
case. At one point, the appellant‘s concerns led P to refrain from taking her usual notes. At the hearing before the
Master of R‘s motion to obtain disclosure, P agreed to release her reports, but claimed privilege in relation to her
notes. Counsel for the appellant was present. He supported P‘s objections to production, but did not assert a formal
claim to privilege on behalf of the appellant. The Master found that P had no privilege in the documents and ordered
that they all be produced to R. The British Columbia Supreme Court affirmed that decision. P‘s appeal to the Court
of Appeal was allowed in part. The court ordered disclosure of P‘s reporting letters and notes recording discussions
between her and the appellant. The disclosure ordered was protected by four conditions: that inspection be confined
to R‘s solicitors and expert witnesses, and that R himself could not see them; that any person who saw the
documents should not disclose their contents to anyone not entitled to inspect them; that the documents could be
used only for the purposes of the litigation; and that only one copy of the notes was to be made by R‘s solicitors, to
be passed on as necessary to R‘s expert witnesses.

         Held (L’Heureux-Dubé J. dissenting): The appeal should be dismissed.

          Per La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ.: The common law principles
underlying the recognition of privilege from disclosure proceed from the fundamental proposition that everyone
owes a general duty to give evidence relevant to the matter before the court, so that the truth may be ascertained. To
this fundamental duty, the law permits certain exceptions, known as privileges, where it can be shown that they are
required by a public good transcending the normally predominant principle of utilizing all rational means for
ascertaining the truth. The common law permits privilege in new situations where reason, experience and application
of the principles that underlie the traditional privileges so dictate. It follows that the law of privilege may evolve to
reflect the social and legal realities of our time, including the Canadian Charter of Rights and Freedoms. The first
three conditions for privilege for communications between a psychiatrist and the victim of a sexual assault are met
in this case, since the communications were confidential, their confidence is essential to the psychiatrist-patient
relationship, and the relationship itself and the treatment it makes possible are of transcendent public importance.
The fourth requirement is that the interests served by protecting the communications from disclosure outweigh the
interest of pursuing the truth and disposing correctly of the litigation.

          If the court considering a claim for privilege determines that a particular document or class of documents
must be produced to get at the truth and prevent an unjust result, it must permit production to the extent required to
avoid that result. On the other hand, the need to get at the truth and avoid injustice does not automatically negate the
possibility of protection from full disclosure. An order for partial privilege will more often be appropriate in civil
cases where, as here, the privacy interest is compelling. Disclosure of a limited number of documents, editing by the
court to remove non-essential material, and the imposition of conditions on who may see and copy the documents
are techniques which may be used to ensure the highest degree of confidentiality and the least damage to the
protected relationship, while guarding against the injustice of cloaking the truth. While a test for privilege which



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permits the court occasionally to reject an otherwise well-founded claim for privilege in the interests of getting at the
truth may not offer patients a guarantee that communications with their psychiatrists will never be disclosed, the
assurance that disclosure will be ordered only where clearly necessary and then only to the extent necessary is likely
to permit many to avail themselves of psychiatric counselling when certain disclosure might make them hesitate or
decline.

          It is open to a judge to conclude that psychiatrist-patient records are privileged in appropriate
circumstances. In order to determine whether privilege should be accorded to a particular document or class of
documents and, if so, what conditions should attach, the judge must consider the circumstances of the privilege
alleged, the documents, and the case. While it is not essential in a civil case that the judge examine every document,
he or she may do so if necessary to the inquiry. A court, in a case such as this, might well consider it best to inspect
the records individually to the end of weeding out those which were irrelevant to this defence, but the alternative
chosen by the Court of Appeal of refusing to order production of one group of documents and imposing stringent
conditions on who could see the others and what use could be made of them cannot be said to be in error and should
not be disturbed.

         The appellant‘s alleged failure to assert privilege in the records before the Master does not deprive her of
the right to claim it. If the appellant had privilege in the documents, it could be lost only by waiver, and the
appellant‘s conduct does not support a finding of waiver.

           Where the doctrine of privilege applies, it displaces any residual discretion which might otherwise be
thought to inhere in favour of the party claiming privilege. A two-step process which requires a judge to consider
first privilege and then a residual discretion under Rule 26(11) would be redundant and confusing.

          Per L’Heureux-Dubé J. (dissenting): Direct disclosure of all of the information shared in the course of
therapy to defence counsel and professionals who are assisting the defence constitutes a very serious breach of the
plaintiff‘s interests in privacy as regards these communications. While the plaintiff‘s privacy interests in the records
may receive some protection under the doctrine of privilege, this is only to the degree they serve the greater purpose
of promoting relationships sufficiently valued by the public. McLachlin J.‘s approach to partial privilege is agreed
with, but it cannot displace the residual discretion to order production of documents in a manner which effects an
appropriate balance of the Charter values engaged in the appeal. The source of this discretion is a common law
discretionary rule governing the exercise of powers established under the B.C. Rules of Court. Since the appellant
has asserted her privacy interest in private records independently of her claim for privilege, it is necessary to
determine whether this interest has received adequate attention.

          The traditional common law approach to the power conferred upon the courts to order the production of
documents for discovery in civil proceedings holds that all relevant documents which are not privileged must be
produced. An alternative approach, that taken by the Court of Appeal in this case, is one which places an outer limit
on this discretion, a limit which ensures that the discovery procedures not work injustice, even where a claim of
privilege has not been successful and it appears that information in the document is relevant to an issue at trial. The
latter approach is more consistent with the wording of the Rules governing discovery, the origins of the procedure,
the common law discretionary rules governing information regarding non-parties, and the effect of the Charter on
the exercise of common law and statutory discretion in civil proceedings. In any event, the court must ensure that the
approach followed reflects an adequate balance of the values underlying the Charter.

          As the records at issue here are of the same nature as those mentioned in O‘Connor, the appellant has
established a reasonable expectation of privacy in the records. Rather than having waived her right to privacy by
instituting an action, the appellant has engaged a process where her reasonable expectation of privacy must be
balanced against the society‘s need to ensure that such litigation be conducted fairly and effectively. The Charter-
related value of a fair trial for all litigants, as a fundamental principle of justice, is also affected in such cases and
must be balanced with the privacy interests of the appellant. The value of equality must further guide the procedure
of discovery in tort cases involving sexual assault.

         Given the distinguishing and shared features of the criminal and civil contexts for production of private
records, the following procedure seems the appropriate one in the context of civil discovery. The party seeking
production must notify those with an interest in the confidentiality of the records. Before a court may order


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production of private records to the defence for the purposes of discovery, it must first ascertain what documents are
likely to be relevant to an issue at trial. In civil cases the required information will be provided by the affidavit of the
party seeking the order. The court must then order production of the likely relevant documents to the court for
screening and removal of any information which the court deems is not likely relevant or otherwise exempt from
production given the balancing of the interests involved. A number of factors to guide in this evaluation are
suggested. A judge may also ask the guardian of the documents for an inventory of those in his or her possession to
assist in the screening process.

         These additional procedures will not confuse trial judges. In many cases, such as the one before us, the
privilege claim will be settled by the judge on the basis of affidavit evidence. Even where inspection may be
required, the fourth branch of the Wigmore test should be applied to the documents as a whole. Once the privilege
claim has been settled, the judge would then undertake the screening procedures described above to those documents
which are not protected, provided their likely relevance has been established.

          Here the Court of Appeal did not review the documents before ordering their production. By failing to
screen private records in such cases, the court creates an impermissible hierarchy of Charter values, where interests
in privacy and equality may be seriously affected for records or information which may provide very little if any
benefit to the defence or be unnecessary to ensure the fairness of proceedings. The decision of the Court of Appeal
should be set aside, except as regards the notes which were not disclosed, and the matter remitted to the Master for
determination in a manner consistent with these reasons.




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                                                                  WEEK 7: B.C. Lightweight Aggregate Ltd.


                                                   B.C. Lightweight Aggregate Ltd. v.
                                                   Canada Cement LaFarge Ltd. et al.

British Columbia Court of Appeal
May 3, 1978

CRAIG, J.A.:—At the conclusion of the hearing of the appeal, the Court allowed the appeal, stating that reasons
would be delivered later, and directed that the plaintiff be at liberty to examine Olivier LeCerf for discovery at such
place as counsel might agree and, failing such agreement, that he be examined either in Vancouver or in Paris,
France, at the option of the respondent.

In 1975, the plaintiff commenced an action against 33 corporations claiming damages for conspiracy to injure the
plaintiff in its trade and business. With the exception of one defendant, the defendant companies are in two groups,
referred to in this proceeding as the ―LaFarge Group‖ and the ―Ocean Group‖. In January of this year, counsel for
the plaintiff applied for several orders, including an order that ―Olivier LeCerf do attend to be examined for
discovery on behalf of the defendant, Canada Cement LaFarge Ltd. at such place and in such manner as the Court
deems just and convenient pursuant to Rule 27(26)‖.

LeCerf resides in Paris, France. At one time, he was general manager of the respondent Canada Cement LaFarge
Ltd. and is, apparently, a member of the board of directors of the company.

Prior to making this application, counsel for the plaintiff had already commenced to examine James Sinclair for
discovery in his capacity as an executive of one of the defendant LaFarge companies. In addition, all the LaFarge
companies which were defendants in the action had designated Mr. Sinclair as a person to be examined for
discovery on the matters in question on behalf of each of these companies -- presumably, on the basis that they had
the right to do so under the Supreme Court Rules, Rule 27(6).

After hearing some argument, the Chambers Judge adjourned this particular application. Subsequently, he directed
counsel‘s attention to the decision of Meredith, J., in Hartland Holdings Inc. v. Wall & Redekop Corp. (No.
C773785, Vancouver Registry), pronounced December 12, 1977, in which Meredith, J., held that the intent of Rule
27(6) -- which came into force in February of 1977 -- was to alter the practice relating to the examination of a
representative of a corporate party for discovery by permitting the corporation to select the representative who
would be examined, not the party seeking the examination. After receiving written submissions from counsel, the
Chambers Judge applied the reasoning of Meredith, J., in Hartland Holdings Inc. v. Wall & Redekop Corp., and
dismissed the plaintiff‘s application stating that the plaintiff should ―be restricted, in the first instance, to the
examination of Mr. Sinclair‖.

With deference, I think that Rule 27(6) was not meant to have this effect.

The pertinent parts of Rule 27 are as follows:

         27(3) A party to an action may examine for discovery any party adverse in interest. (MR 370c.)

         (4) A person who is or has been a director, officer, employee, agent, or external auditor of a party
         may be examined for discovery. (MR 370cc.)

         (5) No party, after having examined a person referred to in subrule (4), may examine any other
         person referred to in that subrule without leave of the Court. (MR 370ccc.)

         (6) Where a corporation is a party it shall disclose the name of a person to be examined who is
         knowledgeable concerning the matters in question in the action. (New.)
                                                          .....
         (26) So far as is practical, this rule applies to a person residing out of British Columbia, and the
         Court, on application on notice to the person, may order the examination for discovery of the



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         person at such place and in such manner as it thinks just and convenient. Unless the Court
         otherwise orders, delivery of the order and the notice may be made on, and payment of the proper
         fee may be made to, the solicitor for the person. (MR 370t, 370u.)

Meredith, J., considered the former Rules relating to an examination of a representative of a corporate party,
particularly O. 31a, M.R. 370 cc., r. 2, and noted that there was nothing in the former Rules corresponding to the
present Rule 27(6). He said as follows:

There are several changes, I think, significant in the construction of the new Rules. Under M.R. 370 ccc. ―any
person who is or has been an officer or servant of a corporation‖ was subject to oral examination. Marginal Rule
370ccc. made it clear, however, that only one person was subject to examination save by an order of the Court. Thus
it seems that the adverse party had his choice in selecting the appropriate person to be examined. The word ―any‖ in
M.R. 370 cc. permitted the adverse party to select. There is no authority that I know of to the contrary.

In Rule 27(4), the expression now is ―a person‖, not ―any person‖ as before. Then, Rule 27(6), which seems simply
to impose a duty on the corporation to disclose, implies at least that the person disclosed as the ―person to
examined‖ is the person referred to in Rule 27(4).

Is the interpretation which would confer upon the company the right to nominate its director, officer or employee, in
the first instance, reasonable? I think it is to be preferred to the unrestricted right of the adverse party. A corporation
should surely have some voice in the selection of its spokesman, and particularly the spokesman who is called upon
to make admissions on its behalf. And especially where the choice, as matters stand, is amorphous.

The Rules in force prior to February, 1977, have always been interpreted as permitting a party to select a
representative of a corporate party adverse in interest whom he would examine for discovery. After examining this
corporate representative, the adverse party could not examine another corporate representative without leave of the
Court. The former Rules did not require a corporate party to disclose the name of a representative who would be the
appropriate person to examine for discovery, so the adverse party did not have a means of forcing the corporate
party to disclose the name of an appropriate examinee if the adverse party was unsure of who was the appropriate
examinee.

Rule 27(6) now requires a corporate party to ―disclose the name of a person .......... who is knowledgeable
concerning the matters in question in the action‖. It does not take away the right of an adverse party to select a
representative of the corporate party who is to be examined for discovery.

Several decisions in Ontario have held that a party taking out an appointment to examine a representative of a
corporate party has the right to select the representative who is to be examined: Barry v. Toronto & Niagara Power
Co. (1906), 7 O.W.R. 700; Trinity College v. Levinter, [1924] 2 D.L.R. 584, 54 O.L.R. 290; Tyack v. Western
Freight Lines, Ltd., [1942] O.W.N. 143.

In the case of Barry v. Toronto & Niagara Power Co., the Master who made the order said that ―serious injustice
might be done if the right of examination for discovery was in any way to be regulated by the adverse party‖.

In the case of College Housing Co-Operative Ltd. et al. v. Baxter Student Housing Ltd. et al. (1974), 50 D.L.R. (3d)
318, [1975] 3 W.W.R. 379, Hamilton, J., of the Court of Queen‘s Bench in Manitoba, followed these decisions.

In 1960, Rule 326(3) was incorporated into the ―Rules of Practice and Procedure of the Supreme Court of Ontario‖.
It provides that ―a corporation may apply to the Court to have examined an officer or servant in lieu of the officer or
servant selected to be examined‖. This Rule clearly suggests that the opposite party still has a right to select the
officer or servant to be examined.

If the drawers of our new Rules had intended to alter the existing practice relating to the examination of a
representative of a corporate party adverse in interest they surely would have expressed this intention in unequivocal
language. Such an alteration cannot even be inferred from the language of Rule 27(6).

Counsel for the respondent submitted that an order under Rule 27(26) is discretionary and that even if the Chambers
Judge had disagreed with the decision of Meredith, J., in Hartland Holdings Inc. v. Wall & Redekop Corp. (No.



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C773785, Vancouver Registry) the Chambers Judge still had the right under Rule 27(26) to refuse to grant the
application, or, alternatively, he had grounds for refusing to grant the application of the appellant, notwithstanding
the reasoning in Hartland Holdings Inc. v. Wall & Redekop Corp.

A Judge does have a discretion under Rule 27(26), but it seems that the Chambers Judge in this case exercised his
discretion against the applicant solely on the basis of the reasoning of Meredith, J., in Hartland Holdings Inc. v.
Wall & Redekop Corp. As this Court disagreed with that reasoning, it directed that the appeal should be allowed.

The appellants will have the costs of this appeal.

                                                                                                     Appeal allowed.




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                                                                 WEEK 7: Fraser River Pile & Dredge Ltd.


                       Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd.

British Columbia Supreme Court
Vancouver, British Columbia
Judgment: filed October 14, 1992

WONG J.:— This motion raises an issue of a practice direction as to whether there are limitations on the right of
attending Counsel in a civil oral discovery to discuss with his witness, during an adjournment of the ongoing
discovery, the evidence already given or to be given without consent of the examining Counsel.

          This civil action involves the sinking and loss of the Plaintiff‘s barge ―Sceptre Squamish‖ on November 16,
1990 in the Strait of Georgia while under rental to the Defendant. A major issue in this action is whether the
Plaintiff or the Defendant was responsible for decisions concerning the towing of the barge to safety in the event of
storms. A Mr. Barry Johnson was produced for examination on behalf of the Defendant on August 17th and 18th,
1992. During the course of his examination, Mr. Johnson admitted that he was to make the final decision
concerning the towing of the barge to safety. Because of this admission, Counsel for the Defendant requested an
immediate adjournment to discuss with Mr. Johnson the evidence he had given. Over the objections of Counsel for
the Plaintiff, Counsel for the Defendant discussed with Mr. Johnson the evidence given by him during the
adjournment.

         The Plaintiff now seeks an Order, pursuant to Supreme Court Rule 27(21) and the inherent jurisdiction of
this Court, directing Counsel for the Defendant not to communicate with witnesses produced for examination for
discovery on behalf of the Defendant, concerning their evidence, until the conclusion of their examination. There
are no decided authorities on this point in British Columbia.

         In Nova Scotia, there is a recent ruling by the Law Society expressly providing that ―it is unethical for a
lawyer to communicate with a witness concerning the evidence of that witness during any adjournment of the oral
discovery of that witness, unless all Counsel consent and then only for an expressly agreed purpose‖ (Ruling 1992-
11). However, there is no similar Law Society Ruling in British Columbia.

          The only case dealing with the issue of communication with a client-witness during discovery, that has
been drawn to my attention, is McLeod v. Cdn. Newspapers Co. (1987), 15 C.P.C. (2d) 151 (Ont. S.C.). In that case,
Counsel for the witness handed to the witness notes and whispered with her privately during the actual
examination. The examining party adjourned the examination for discovery and brought a motion for directions
with respect to the propriety of the communications that had taken place. Master Sandler held that the private
communication were improper. He directed that Counsel for the witness not to communicate privately with her
witness, either by passing notes or by consultation, on resumption of the examination for discovery. McLeod, supra,
is distinguishable from the case at Bar which does not involve deliberate interference with the actual examination or
improper advice as to the evidence to be given.

         Counsel for the Defendant in this case claimed the right to seek an adjournment and to confer privately
with his witness in order to ascertain if there was a change in what he originally understood the witness‘s evidence
to be. Counsel for the Defendant took the position that it was more expedient to clarify the seeming inconsistency
immediately rather than later on re-examination. ………………………

         The lack of authority in British Columbia on this subject of conduct during discoveries indicates to me that
heretofore the professional ethics and responsibility of individual Counsel have been the governing factor.

        I was urged by Counsel for the Plaintiff to extend the application of cases which prohibit discussion
between Counsel and his witness during cross-examination at trial to examinations for discovery.

         In 413528 Ontario Ltd. v Wilson Avenue Inc., (1989), 42 C.P.C. (2d) 70, a case dealing with cross-
examination on an affidavit, Master Sandler held that Counsel was not to communicate with his witness about the
witness‘ evidence, or on any other issue in the proceeding, during the course of cross-examination of that



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witness. He also stated that the prohibition was to be applied reasonably so as not to prevent legitimate
communications between Counsel and witness, especially a witness-party to the proceedings, such as answering
outstanding questions concerning the conduct of the proposed trial or discussing settlement, but operated to prevent
Counsel from interfering with the evidence being given by the witness during cross-examination or from aiding the
witness in any way. It was also designed to prevent the appearance of any improper conduct. It was Master
Sandler‘s view that if the cross-examination was merely in recess, such as, for example, during a coffee break, then
Counsel should refrain from communicating with the witness completely. However, if the cross-examination was
adjourned for a period of time and to be recommenced at a future date, then again, the witness‘ Counsel should not
communicate with the witness respecting the witness‘s evidence given or to be given. But Master Sandler ruled that
such prohibition on communication would not extend to communication between Counsel and his witness about
matters that had nothing to do with the witness‘s evidence already given, or about to be given, or with other
evidence to be presented by other witnesses on the pending motion or application.

         ……………………………..

         The main purpose behind the above rulings prohibiting communications between Counsel and his witness
during cross-examination is to prevent Counsel from telling his witness what he or she should say. This concern is
equally applicable in a discovery process. Not only must there be no interference by Counsel with the witness‘s
evidence, there must also be an appearance that there is no such improper conduct. However, at the same time, one
must also keep in mind that in a complex case, a discovery of an examinee may take place over an extended period
of time with lengthy adjournments. It would be impractical in such a situation to prohibit Counsel from having any
discussions with his or her witness or to limit the discussion to issues not related to the evidence given or to be
given. It would be unrealistic to assume that there can be a discussion on the issue of settlement, for example,
without a discussion also of all the evidence that has been given thus far. Therefore a complete ban on discussion of
the evidence during adjournment of ongoing discoveries is, in my view, both impractical and unrealistic. ‖Wood
shedding‖ or advising the witness as to the answers to be given on resumption of the examination for discovery is, of
course, improper and unethical.

       Balancing the need to maintain the integrity of the discovery process and the demand for practicality, I
would make the following suggestions for future guidance of Counsel:

         1)          Where a discovery is to last no longer than a day, Counsel for the witness should refrain
                     from having any discussion with the witness during this time. In order to maintain the
                     appearance of proper conduct, Counsel and the witness should not even be seen to
                     converse during any recess.

         2)          Where a discovery is scheduled for longer than one day, Counsel is permitted to discuss
                     with his or her witness all issues relating to the case, including evidence that is given or
                     to be given, at the conclusion of the discovery each day. However, prior to any such
                     discussion taking place, Counsel should advise the other side of his or her intention to do
                     so.

         3)          Counsel for the witness should not seek an adjournment during the examination to
                     specifically discuss the evidence that was given by the witness. Such discussion should
                     either wait until the end of the day adjournment or until just before re-examination at the
                     conclusion of the cross-examination.

         I have been told by Counsel that re-examination of Mr. Johnson has now been concluded and thus any need
for direction concerning his evidence is moot. However I trust the suggestions made above will be sufficient
guidance for Counsel as to how the other examinees‘ discoveries should be conducted.

         The Plaintiff‘s application is dismissed. Costs will follow the final result of the cause.




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                                                                   Roitman v. Chan

British Columbia Supreme Court
Vancouver, British Columbia
Judgment: November 2, 1994

1        MASTER BOLTON:— This is an application by various defendants to strike out interrogatories delivered
to them.

2.        The plaintiff‘s husband, Leigh Barry Roitman, was badly injured in a motor vehicle accident on March 28,
1992. He received significant orthopedic injuries, including several fractures. He was taken to St. Paul‘s Hospital
and underwent surgery the following day. On the evening of that day, he suffered a heart attack. This resulted in
irreversible brain injury, and he remained unconscious until his death on April 16, 1994.

3.       The plaintiff commenced this action under the Family Compensation Act against Kenneth Chi Chan and
Lai Ling Chan, the driver and owner of the other vehicle involved in the collision. Subsequently, an order was made
permitting the addition of the other defendants and the pleading of a claim of medical negligence against them.

4.       In very general terms, the claim against the medical defendants rests on an allegation that they failed to
recognize that Mr. Roitman was at special risk of heart complications associated with surgery and failed to act
accordingly. One of the particulars alleged against the doctors is the improper prescription and administration of
medication. As against the nurses, the particulars include an alleged failure to monitor Mr. Roitman‘s post-operative
condition. Both doctors and nurses are alleged to have taken inadequate steps to revive Mr. Roitman after the heart
attack occurred.

5.       Counsel for the medical defendants has by letter advised plaintiff‘s counsel that several of the named
doctors had no involvement with Mr. Roitman‘s care or treatment and she has asked them to dismiss their claims
against these doctors. Plaintiff‘s counsel have demurred, as they are not yet sure of all the relevant facts and do not
wish to risk dropping a party who may yet prove to be liable for the death of Mr. Roitman. Accordingly, counsel for
the plaintiff drafted the impugned interrogatories which were directed to the defendants identified in the style of
proceeding as being doctors. A principle objective of the interrogatories is to establish exactly who did exactly what
in the days proceeding Mr. Roitman‘s death, but some of the interrogatories go considerably beyond this.

6.       Question No. 1 is not really a question at all. Instead, it peremptorily commands each recipient to:

         ―Describe in full and complete detail your involvement in the medical care and treatment of ..........
         Mr. Roitman from March 28, 1992 until April 16, 1992.‖

7.       Question No. 2 says:

         ―Describe in full and complete detail your knowledge of the involvement of other persons in the
         medical care and treatment of Mr. Roitman from March 28, 1992 until April 16, 1992. That is,
         who provided medical care and treatment to Mr. Roitman and what did they do.‖

8.       Questions No. 3 through No. 9 are basically repetitions of Question No. 2, broken down to focus on
particular events of concern to the plaintiff.

9.       Questions No. 14 and No. 15 ask what steps were taken to resuscitate Mr. Roitman once he went into
cardiac arrest, how long it took, and why it took ―as long as it did‖. The balance of the questions from No. 10
through No. 17 ask for opinions on various aspects of Mr. Roitman‘s treatment.

10.      I will venture to say that there are few areas in the law relating to practice and procedure in this jurisdiction
which are fraught with so many difficulties as interrogatories. Some of that difficulty may be removed by a recent
decision of Baker J. in Tse-Ching v. Wesbild Holdings Ltd. et al., [1994] B.C.J. No. 2021, Vancouver Registry No.



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C934527 September 14, 1994, where Her Ladyship reviewed the authorities and extracted from them the following
principles:

         ―1.         Interrogatories must be relevant to a matter in issue in the action.

         2.          Interrogatories are not to be in the nature of cross-examination.

         3.          Interrogatories should not include a demand for discovery of documents.

         4.          Interrogatories should not duplicate particulars.

         5.          Interrogatories should not be used to obtain the names of witnesses.

         6.          Interrogatories are narrower in scope than examinations for discovery.

         7.          The purpose of interrogatories is to enable the party delivering them to obtain admissions
                     of fact in order to establish his case and to provide a foundation upon which cross-
                     examination can proceed when examinations for discovery are held.‖

[The purpose of interrogatories was also considered recently by this court in Pierre v. Canadian Broadcasting
Corporation, [1993] B.C.J. No. 2175, Vancouver Registry No. C913857. Smith J. held that Kennedy v. Dodson,
[1895] 1 Ch. 334, which confined interrogatories to obtaining admissions of fact it was necessary for the
interrogating party to prove, is no longer entirely correct, and that interrogatories by a party seeking to obtain
admissions of the facts on which the other party bases affirmative pleadings and denials is also permissible.]

         ―8.      Interrogatories are only one means of discovery. The court may permit the party
         interrogated to defer its response until other discovery processes have been completed, including
         examinations for discovery.‖

11.       Notwithstanding the clarity of these principles, it will no doubt continue to be difficult to apply them to the
facts of many cases. My own view is that, subject always to particular rules laid down by binding authority, an
important general principle governing the propriety of interrogatories should be the practicality of the procedure in
any given case. All pre-trial disclosure procedures - generally those dealt with in Rules 26 through 32 plus demands
for particulars - are tools with a common purpose of ascertaining relevant facts and narrowing the issues. As such, it
seems to me that the law should encourage the selection of the tool which is likely to achieve the best result for the
least effort and cost.

12.      This analysis is particularly applicable to the choice between examinations for discovery and
interrogatories. Generally speaking, issues involving extensive research, such as precise chronologies or exhaustive
lists, would seem to be more appropriate for the more expansive time-frame permitted by interrogatories than for a
more confrontational, time-pressured examination for discovery. Conversely, questions requiring a narrative answer
are much more likely to remain in focus at an examination for discovery, where counsel can expand on and limit the
witness‘s answers as appropriate.

13.     In view of the above, I have concluded that Question No. 1 should not be answered. This is not a question
designed to obtain an admission of fact, and offends the seventh principle of the Tse-Ching decision referred to
above. Moreover, it is a type of issue more conveniently dealt with as a narrative at examination for discovery.

14.       Question No. 2 is a proper one, so long as it is interpreted to require a chronology of dates and times,
names, and responsibilities, and not a request for a narrative. The reply will constitute an admission of fact, and it
seems to me that it would be infinitely preferable to have this chronology sorted out from hospital records at relative
leisure, rather than trying to cobble it together by comparing lists of documents with the unresearched answers of
half a dozen witnesses under examination for discovery. Counsel for the defendants suggested that this question
required so much detail from the individual defendants that it would be oppressive, but I cannot accept that
contention. Any alternatives seems likely to result in less certainty for more work. I would suggest, without



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directing, that the defendant Hospital could have an all-inclusive chronology prepared by somebody in their records
office, and that the individual defendants refer to those parts of it they are able to confirm from their own
knowledge.

15.      A further problem with regard to Question No. 2 relates to the stricture against the use of interrogatories to
obtain the names of witnesses. This rule is subject to an exception, which requires the naming of witnesses whose
identity is related to a material fact: Silvaggio v. Adamson (1988), 32 C.P.C. (2d) 227 (B.C.S.C.); Pierre v.
Canadian Broadcasting Corporation, supra. Here, the question refers to ―the involvement of other persons in the
medical care and treatment of Mr. Roitman‖. By limiting the names of the witnesses sought to persons involved in
Mr. Roitman‘s care, I am satisfied that the plaintiff has not strayed beyond the bounds of propriety. The identity of
people involved in his care is a material fact, and there is no request for the names of uninvolved witnesses, such as
nurses on shift in a particular ward at a particular time who were not involved with the care and treatment of Mr.
Roitman.

16.     Questions No. 3, No. 4 and No. 5 need not be answered. They do not seem to me to add anything
permissible to the answer to Question No. 2 that I have already directed.

17.      Question No. 6 is probably in the same category as Questions No. 3, No. 4 and No. 5 and, in any event, is
not relevant to the particulars of negligence that have been pleaded, except as an undifferentiated part of the entire
course of treatment given to Mr. Roitman while he was in the hospital.

18.      Questions No. 7, 8 and 9 are as follows:

         ―7.         To your knowledge, what person or persons were responsible for prescribing morphine to
                     Mr. Roitman from March 28, 1992 until March 29, 1992 and what was the dosage
                     prescribed. What factors are normally considered in the prescription and administration
                     of morphine?

         8.          To your knowledge, what person or persons were responsible for administering the
                     morphine to Mr. Roitman.

         9.          To your knowledge, what person or persons were responsible for determining the use of
                     and monitoring Mr. Roitman‘s Patient Controlled Analgesia (PCA) with morphine
                     infusion?‖

19.       These are more specific questions than those dealt with in Question No. 2, and do relate to the pleadings in
the amended Statement of Claim, where the particulars of negligence include the failure to properly prescribe and
administer medication, and to properly monitor Mr. Roitman‘s post-operative condition. The identity of the person
prescribing morphine, the dosage prescribed and the PCA monitoring are all important issues on which the plaintiff
is entitled to seek admissions. The more general chronology required by Question No. 2 may not zero in on the
identity on the person prescribing the medication or responsible for the monitoring, and this knowledge may well
enable counsel for the plaintiff to establish priorities as they plan the conduct of the litigation. An answer to the
question about the prescribed dosage would be a necessary ingredient in any expert opinion sought on behalf of the
plaintiff. It is at least as convenient to deal with these questions by interrogatories as by examination for discovery
and these questions comply with all of the conditions set out in the Tse-Ching case.

20.     But the third part of Question No. 7 is a different matter. It is more appropriate to wait for examinations for
discovery to ask about the factors normally considered in the prescription and administration of morphine.

21.      None of the remaining questions should be answered. The questions about resuscitating Mr. Roitman are
too general to be the basis for proper interrogatories. They ask for a narrative, rather than for admissions of
particular facts. And the questions relating to opinions about various issues involved in the case are clearly not
designed to elicit admissions of fact. …………….




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                                                                 Sinclair v. March

2001 BCSC 102

1     DILLON J.:— The plaintiff has applied pursuant to Rule 28(2) for the pre-trial examination of Dr. Ralph
Christensen ("the physician"), the physician who cared for the plaintiff in 1994 and 1995 after the bariatric gastric
bypass surgery ("the surgery") performed by the defendant, Dr. March, in 1993. The plaintiff seeks not only to
examine Dr. Christensen as to complications dealt with by the physician allegedly arising from the 1993 surgery, but
also to obtain the physician's opinion about the surgery that was performed in the first place. The physician opposes
the application because it seeks the opinion of the physician who does not wish to become an expert witness in this
matter. The physician also opposes the application as an attempt to obtain evidence for trial and further states that
the physician has not refused to provide a responsive statement as first required under Rule 28(3)(c). Neither
defendant takes a position on this application.

2     The physician performed five repair operations on the plaintiff in 1994 and 1995. He was personally involved
in her recovery and is the only person with detailed information about it. The plaintiff has waived any privilege over
this information. Plaintiff's counsel initially interviewed the physician in August 1997. At that time, the physician
expressed the opinion that the surgery was negligently performed and offered to review the post-operative care. The
physician also indicated that he would be willing to give evidence at the trial of this matter.

3    Lawyers for the defendant, Dr. March, requested to meet with Dr. Christensen who had retained counsel to
represent him in 1998. A meeting was arranged with counsel both for Dr. March and the plaintiff present in October
1998. The purpose of the meeting was for the physician to answer questions relating to his knowledge of
matters. However, plaintiff's counsel did not ask questions, assuming the role of a watching brief. Plaintiff's
counsel says that it was his understanding that this was the interview of Dr. March but the physician maintains that
the plaintiff had opportunity to ask questions at this meeting. In any event, the meeting deteriorated quickly over
issues of privilege. The physician's clinical records were produced to the plaintiff after this meeting.

4    On June 15, 2000, plaintiff's counsel contacted the physician directly by letter. He requested that the physician
provide a medical legal report which included answers to the following questions:
         1)             Considering that Dr. Ray March was the only person in the province of British
                        Columbia still performing these gastric bypass operations at the time of the last
                        operation and further considering that Royal Columbian Hospital did no fewer
                        than two major reviews questioning the efficiency of such operations prior to
                        the operation performed on our client are you of the view that such operations
                        have an inherent risk and danger that supersede the benefit that would flow
                        from them?

         2)             How many of such operations have you done and how many have been
                        successful and are you aware of how many such operations are generally
                        successful?

         3)             What does the literature say about those operations and their success rates and
                        further what does the literature say about the risk of danger including the
                        number of fatalities?

         4)             Was Ms. Sinclair a suitable candidate for such an operation?

         5)             What is the definition of morbidly obese?




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         6)              We enclose herewith a promotion pamphlet produced by the Defendant March
                         setting out information. Ought this pamphlet contain a warning as to the nature
                         of the risks that may arise in the performance of this operation and its success
                         rate.

         7)              You have seen the full medical chart of the Plaintiff and we are also enclosing
                         further documentation to make your record for review complete. Having
                         reviewed this material was the procedure performed by Dr. March carried out
                         in a negligent manner and if so what are the aspects of negligence?

                In addition we ask that you address the following:

         1.              what is the criteria for the need of gastric bypass surgery;

         2.              what were the risks of having the procedure at the time it was conducted;

         3.              what were the risks post-operatively;

         4.              what is the standard of care post-operatively in this kind of case; and

         5.              what was the actual follow up post-operative care.


 5    The physician responded through his counsel that he would not provide a medical legal report but he would
respond to questions as long as he was "not cast in the role of an expert witness". This was the first time that the
plaintiff knew that the physician would not be an expert witness and came at a time when the plaintiff had been
unable to locate an expert in her case. The plaintiff then advised that she wanted to examine the physician under
Rule 28.

 6    The physician does not oppose answering the last question because it does not ask for opinion but also says
that the affidavit in support of this application does not suggest that the plaintiff does not already have this
information. It is suggested that this information was obtained at the two interviews of the physician. The physician
is opposed to giving opinion evidence in any form. The physician has not provided a substantive response to any
specific question posed in the June 2000 letter.

 7    It is not contested that Dr. Christensen is not an expert retained by any of the parties to this litigation. This
means that the application is not actually under Rule 28(2) but under Rule 28(1). This did not cause confusion at the
hearing of this application because all parties were prepared to argue the application within Rule 28(1).

 8     Exercise of the discretion in Rule 28(1) depends first upon fulfilment of the requirements of Rule 28(3)
(Johnston v. Royal Jubilee Hospital (1980), 25 B.C.L.R. 398 (B.C.C.A.) at 399). It has been established that the
physician has material evidence to give. It has also been established that none of the parties has retained the
physician as an expert so that Rule 28(3)(b) does not apply. Did the physician provide a responsive statement? An
offer by the witness' solicitor to respond to any questions was sufficient to deny refusal to provide a statement
(Johnston ibid). In this case, the plaintiff has interviewed the physician twice, although the second interview was
restricted. In the first interview, the physician said that he would review the post-operative care. This suggests that
he did not provide definite information about this care. The second interview was conducted by the defendant's
counsel and broke down rather quickly. While the physician stated that answers were given to questions asked, the
content of the information is vague. A statement that he answered questions relating to his knowledge of matters in
question is insufficient when it is not clear whether the answers were given in response to questions by the applicant
and when these answers were given prior to the plaintiff having a copy of the clinical records of the physician. I do
not find either of these opportunities sufficient to constitute a responsive statement as to this physician's knowledge
about matters at hand and, in particular, in response to the questions raised in the June 2000 letter. The physician's
solicitor offered generally to respond to questions provided that they did not require the expression of opinion and
said that a written response would come in the coming weeks. A response has not come and it was not clear until
this application as to what questions the doctor would respond to. Certainly, the physician has refused to respond to



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all but one of the questions. It is not the open offer of response that was seen in Johnston. Further, there is clear
refusal to provide responsive opinionated information. This refusal is sufficient to open the door to the exercise of
discretion under Rule 28(1) and to consider whether opinions may be elicited upon pre-trial examination under Rule
28(1).

¶9    Rule 28 was introduced in 1977 as a new discovery technique to allow for pre-trial examination of witnesses
who have material evidence relating to a matter in question. Rule 28(1) says:

         Where a person, not a party to an action, may have material evidence relating to a matter in
         question in the action, the court may order that the person be examined on oath on the matters in
         question in the action and may, either before or after the examination, order that the examining
         party pay reasonable solicitor's costs of the person relating to the application and the examination.

¶ 10     The purpose of the rule was to provide " ..........'a new investigative technique' to facilitate full disclosure of
the facts before trial, thus avoiding a party being taken by surprise at trial and ensuring that all relevant evidence is
brought before the court .........." (McLachlin and Taylor, British Columbia Practice, 2nd ed. (Vancouver:
Butterworths, 2000) at 28-2). Because there is no property in a witness and because each side should know as much
as possible about the facts prior to going to trial, Rule 28 provided a significant advance in investigation of fact prior
to trial (Aintree Investments Ltd. v. West Vancouver (District) (1977), 5 B.C.L.R. 216 at 222 (B.C.S.C.)). The
proposition that there is not property in a witness applies as to the facts that he has observed and his own
independent opinion on them (Harmony Shipping Co. SA v. Davis, [1979] 3 All E.R. 177 at 182 (C.A.). Fraser and
Horn, The Conduct of Civil Litigation in British Columbia, vol. 1 (Vancouver: Butterworths, 2000) at 379 describe
that the policy of the Rule was to permit examination of the uncooperative witness. The Rule facilitates presentation
and clarification of issues for trial while guarding against the danger that a party will unfairly use another's expert to
prepare his own case (Rule 28(2)).

¶ 11      Rule 28 was unique to British Columbia and Nova Scotia when drafted and was similar to United States
Federal Rules 30 and 31 which provide for taking depositions from persons whether parties or not (see McLachlin
and Taylor, supra at 281 and Fraser and Horn, supra at 379). Although there are differences between the rules, it is
worthwhile to note that American jurisprudence has recognized that their rule does not apply to facts or opinions not
acquired in anticipation of litigation (see Grinnell Corporation v. Hackett (1976), 70 F.R.D. 326; Barkwell v. Sturm
Ruger Co. Inc. (1978), 79 F.R.D. 444; Norfin Inc. v. International Business Machines Corp. (1977), 74 F.R.D. 529;
Depositions and Discovery 23 Am Jur 2d s. 69, 73). In other words, an expert not retained in anticipation of
litigation can be examined for discovery as of right under American federal rules. The American federal rule is
essentially the rule recognized in our Rule 28(2) and (3)(b) which puts barriers up for examination of an expert
which another party has had to pay. The investment of another in the witness means that this witness will be treated
differently: it does nor mean that the witness is excluded as a matter of principle. The British Columbia Rule 28(1)
is, of course, not one of right but requires the exercise of discretion.

¶ 12    The discovery nature of the rule is enlightened by application of Rule 27(22) to the Rule as provided in Rule
28(8). Rule 27(22) states:

         Unless the court otherwise orders, a person being examined for discovery shall answer any
         question within his or her knowledge or means of knowledge regarding any matter, not privileged,
         relating to a matter in question in the action, and is compellable to give the names and addresses of
         all persons who reasonably might be expected to have knowledge relating to any matter in
         question in the action.

¶ 13     Rule 27 and 28 are, however, fundamentally different. The purpose of Rule 28 is to provide information,
not to record evidence or provide admissions. The use of discovery obtained under this rule is limited at trial to
cross-examination of a witness as to a previous contradictory statement made under oath (Kelly v. Calcutt (1991), 63
B.C.L.R. (2d) 43 at 49 (B.C.S.C.); Aintree Investments Ltd., supra at 220; Re Claassen and McNiece (1983), 146
D.L.R. (3d) 376 at 380 (B.C.S.C.)). The scope of inquiry is broader under Rule 28 because it is not limited to
matters at issue between parties as defined in the pleadings but includes all that is generally relevant between all



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parties (Yemen Salt Mining Corp v. Rhodes-Vaughn Steel Ltd. (1977), 3 B.C.L.R. 98 at 100 (B.C.S.C.); aff'd June
23, 1977, Vancouver No. CA770549, (B.C.C.A.)). Rule 27 discovery does not examine all of the facts whereas
Rule 28 allows factual information to come from anyone who was "..........on the spot.........." or knew "..........exactly
what happened.........." (ibid).

¶ 14     In Yemen, the broader nature of Rule 28 was apparent in the ability to examine an employee who might not
be liable for examination under Rule 27. This case also suggests that the Rule is to be given liberal interpretation,
thus supporting the general attitude expressed in Rule 1(5) that material relevant to litigation should not be withheld
(see Voth Bros. Construction (1974) Ltd. v. North Vancouver School District No. 44 Board of School Trustees et al.
(1981), 29 B.C.L.R. 114 (B.C.C.A.)). Liberal interpretation of discovery rules applies to non-parties so to eliminate
the element of surprise at trial.

¶ 15   It was also determined in Yemen that opinion evidence could be elicited from a witness upon examination
under Rule 28. Ruttan, J. said at 100:

         .......... the scope of inquiry is wider under R. 28. It is not, in essence, confined to "discover" the
         defendant's case as set out in his pleadings and is not limited to matters in issue with the party in
         question, but includes all that is relevant, generally, to all parties in the action, including other
         defendants or third parties. The same employee may be excluded as a witness on discovery when
         examination is directed to opinion or expert evidence: see Coady J. in Ball v. B.C. Electric Ry. Co.
         (1951), 4 W.W.R. (N.S.) 478 (B.C.). Such evidence would be clearly admissible under Rule 28.
         ..........

Farris, C.J.B.C. adopted these reasons on appeal.

¶ 16     Other cases have also recognized that witnesses under Rule 28 may be examined as to both fact and opinion
(Kelly v. Calcutt supra at 50; United Services Funds (Trustee of) v. Richardson Greenshields of Canada Ltd. (1988),
24 B.C.L.R. (2d) 41 (B.C.S.C.) at 44-45. In Eckersley v. Terwiel, (1991) 59 B.C.L.R. (2d) 94 (B.C.S.C.) the court
came to a different conclusion on facts very similar to here. The learned judge did not, however, have the benefit of
the cases cited above and was under the impression that there were no cases on point. He based his decision on
Trustee of Property of Blue Band Navigation Company Limited (a Bankrupt) v. Price Waterhouse & Company,
[1933] 3 W.W.R. 49 (B.C.C.A.), a case under Rule 27. It is important to notice that a rationale for the conclusion in
Blue Band was that it would be unfair for the plaintiff to be bound by admissions made at the discovery. Eckersley
was an appeal from a master, [1991] B.C.J. No. 2645, and it is interesting that the master had based his decision on
incorporation of Rule 27(22) into Rule 28. Rule 27(22) has been interpreted to exclude questions of expert opinion
except where the sole issues is the valuation of property or where a professional man is sued for his own negligence
(Teachers' Investment & Housing Co-operative (Trustee of) v. Jennings (1992), 61 B.C.L.R. (2d) 98
(B.C.C.A.)). The second exception allows examination about judgment and opinions about standard of care because
it goes directly to issues raised in the pleadings and the scope and nature of the duties in question.

¶ 17     Rule 28 is drafted so that once an expert is retained in the litigation, his opinion cannot be solicited under
this Rule unless the opinion cannot be obtained through other means (Rule 28(2) and (3)(b)). This implies that the
expert could be examined if he was not retained or if the applicant was unable to obtain the opinion through other
means (see International Minerals & Chemical Corp. (Canada) v. Commonwealth Insurance Co. (1990), 89 Sask.
R. 81 (Sask.Q.B.)). Absent the retainer, an expert is just another witness if he has material evidence relating to a
matter in question and no questions of privilege arise. The specific inclusion of Rule 28(2) and (3)(b) is different
from Rule 27. Incorporation of Rule 27(22) by Rule 28(8) should not be done simpliciter but should take into
account the different purposes and uses of an examination obtained under Rule 28. The justifications for disallowing
examination on opinion disappear within the Rule 28 context. In any event, the situation in this case involving an
allegation of negligence against a medical man falls within a Rule 27(22) exception. It should not be that an expert
will not be examined as a witness under Rule 28 just because he is an expert when he has material facts and opinion
to provide.




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¶ 18     Treatment of the expert who is not retained as just another witness serves to minimize the distinction
between fact and opinion. This is desirable because of the unworkable nature of the distinction. J. Wigmore,
Evidence, (Boston: Little, Brown & Co., 1978) s. 1919 at 14 described the distinction as without virtue, a "self
justifying dogma", a "vice of policy" which has been subject to "extensive and vicious development in this
country". Here at home, J. Sopinka, The Law of Evidence in Canada (Toronto: Butterworths, 1992) at 524-528 has
said that the distinction is inconsistently applied, unclear and illogical. I do not think that use of the distinction
would benefit interpretation of the Rule.

¶ 19     Dr. Christensen has not been retained by anyone. The case involves allegations of negligence against the
defendant, Dr. March, who is not capable of being examined for discovery. Dr. Christensen dealt with the plaintiff
extensively over a number of years and had first hand experience with the surgery performed by Dr. March. He is
an actor with information that was not obtained in anticipation of litigation. There is no doubt that Dr. Christensen
has relevant information to this case. Expert testimony will be central to this litigation. Dr. Christensen did not
deny that he expressed an opinion to plaintiff's counsel that the surgery was negligently performed. But, he has
balked at being called as an expert. He gives no reason why he has changed his mind. No question of privilege
arises. No unfairness will result to the other parties.

¶ 20      The primary duty of the court is to ascertain the truth. The plaintiff is entitled to know the facts and
opinions formed by Dr. Christensen during his course of treatment of her. The plaintiff's access to all relevant
information will assist in the ascertainment of the truth in this case. I expressly do not decide the extent of power in
a litigant to compel expert testimony from an unwilling expert who does not otherwise have some tie to the
litigation. The witness in question here has unique and irreplaceable knowledge. There is a demonstrated need for
his opinion. It remains for another day to decide whether an expert without such connection could be compelled to
be examined. There is no claim of oppression, privilege or confidence here.

¶ 21      The application is allowed to the extent that Dr. Christensen is able to answer the questions posed in the
June 15, 2000 letter without specific new research. The examination is limited to previously formed opinions and
knowledge without engagement in out-of-examination preparation except for review. He should not have to do a
literature review as asked for in question 3.

¶ 22    The plaintiff will be required to pay to Dr. Christensen a reasonable expert fee for time spent responding to
discovery requests. In future, an applicant should present a plan of compensation at the hearing of the application or
the expert should give an indication of his fee so that the plaintiff can make a financial decision. Because the focus
on opinion goes to the plaintiff's development of her own case and because Dr. Christensen is not a party to this
action, the plaintiff shall pay the costs of this application to Dr. Christensen on a solicitor and own client
basis. Presumably, the plaintiff will be able to recover this cost if she is successful at trial.




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                                                  Practice Directions (Masters’ Jurisdiction)

                             Practice Direction Re: Masters – Jurisdiction (May 22, 1990)

Section 15(6) of the Supreme Court Act, as amended by the Justice Reform Statutes Amendment Act, 1989, S.B.C.
1989, c. 30, s. 50 (section 11(7) of the Supreme Court Act, R.S.B.C. 1996, c. 443) provides:

         A master has, subject to the limitations of section 96 of the Constitution Act, 1867, the same
         jurisdiction under any enactment or the Rules of Court as a judge in chambers unless, in respect of
         any matter, the Chief Justice has given a direction that a master is not to exercise that jurisdiction.

Pursuant to that section, I direct that a master shall not exercise jurisdiction:

         (1)         to grant relief where the power to do so is conferred expressly on a judge by a statute or rule;

         (2)         to dispose of an appeal, or an application in the nature of an appeal, on the merits;

         (3)         to pronounce judgment by consent where any party in a proceeding is under a legal disability;

         (4)         to grant court approval of a settlement, compromise, payment or acceptance of money into court
                     on behalf of a person under a legal disability, or court approval of a sale of assets of a person
                     under a legal disability;

         (5)         in any matter relating to criminal proceedings or the liberty of the subject other than uncontested
                     petitions under the Patients Property Act;

         (6)         in a matter relating to contempt;

         (7)         to grant injunctive relief, other than:

                     (a)      an interim restraining order under ss. 37(a), 38(1)(a) and (b), 38(5) and 67 of the Family
                              Relations Act;

                     (b)      an order for the exclusive possession of the matrimonial home under s. 124 of the Family
                              Relations Act;

         (8)         to make an order under the Judicial Review Procedure Act or for a prerogative writ;

         (9)         to set aside, vary or amend an order of a judge, other than:

                     (a)      to abridge or extend a time prescribed by an order, provided that the original order, if
                              made by a judge, was one that a master would have had the jurisdiction to make; and

                     (b)      to vary the following interim orders:

                              (i)       interim custody, access or maintenance under the Family Relations Act;

                              (ii)      interim corollary relief under the Divorce Act, 1985,

                              (iii)     interim restraining orders under ss. 37(a), 38(1)(a) and (b), 38(5) and 67 of the
                                        Family Relations Act;




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                              (iv)     exclusive possession of the matrimonial home under s. 77 of the Family
                                       Relations Act;

         (10)        to grant a stay of proceedings where there is an arbitration;

         (11)        to make a declaration under the Survivorship and Presumption of Death Act;

         (12)        to remove a suspension from the practice of a profession.

W.A. Esson, CJSC

                                            Notice Re: Masters – Jurisdiction

                                                       May 22, 1990

This Notice should be read along with the Practice Direction issued today, which replaces the Direction on Masters
dated November 17, 1989. The purpose of this Notice is to provide explanations with respect to those changes, and
guidelines on the extent of a master's jurisdiction.

…

Rules of Court

Subject to constitutional limitations and to the Practice Direction, a master has jurisdiction to hear all interlocutory
applications under the Rule of Court. A master may also make some final orders, such as:

         (1)         orders under Rule 2;

         (2)         orders for summary judgment under Rule 18 where there is no triable issue;

         (3)         orders striking out pleadings under Rule 19(24), provided that there is no determination
                     of a question of law relating to issues in the action;

         (4)         orders granting judgment in default;

         (5)         orders under Rule 50(5) (Foreclosure and Cancellation) where no matter is contested or
                     where there is no triable issue;

         (6)         orders in respect of the Administration of Estates under Rule 61;

         (7)         declaratory orders under s. 57 of the Family Relations Act where there is no dispute.

Enforcement

Subject to constitutional limitations and to the Practice Direction, a master has jurisdiction in respect of the
enforcement of orders under Rules 42, 42A, the Court Order Enforcement Act, and any statue which requires an
application to the court to enforce under the Rules of Court an order made by a statutory board or tribunal.

                                                                                     W.A. Esson, CJSC




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                                                         Rule 18A: Masters’ Jurisdiction

Rule 18A - Summary Trial & Masters’ Jurisdiction

Ancillary orders and directions

(8)     On an application heard before or at the same time as the hearing of an application under subrule (1), the
court may

         (a)         adjourn the application under subrule (1), or

         (b)         dismiss the application under subrule (1) on the ground that

                     (i)       the issues raised by the application under subrule (1) are not suitable for disposition
                               under this rule, or

                     (ii)      the application under subrule (1) will not assist the efficient resolution of the proceeding.

Preliminary directions

(10)     On or before the hearing of an application under subrule (1), the court may order that

         (a)         a party file and deliver, within a fixed time, any of the following on which it intends to rely:

                     (i)       an affidavit;

                     (ii)      a notice under subrule (6),

         (b)         a deponent or an expert whose statement is relied on attend for cross-examination either before the
                     court or before another person as the court directs,

         (c)         cross=examinations on affidavits be complete within a fixed time,

         (d)         no further evidence be adduced on the application after a fixed time, or

         (e)         a party file and deliver a brief with such contents as the court may order, within a fixed time.

Ancillary or preliminary orders and directions may be made at or before application

(10.1) An order under subrule (8) or (10) may be made by a judge or by a master, and may be made before or at
the same time as an application under subrule (1).




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                                                                   Fraser v. Houston

British Columbia Supreme Court
Vancouver, British Columbia
Oral judgment: May 22, 1997

1         SHAW J. (orally):— There are two orders requested by the defendants; (1) that the plaintiff post security
for costs, failing which, his action be stayed; and (2) that the plaintiff be required to answer certain questions on his
examination for discovery and produce certain documents to show his ability to pay a potential debt of $600,000 in
December 1995.

2         I will deal first with the question of security for costs. The application is made solely under the inherent
jurisdiction of the court.

3         It is a significant fact that the plaintiff, Mr. Fraser, is a resident of the Province of British Columbia. His
counsel, Mr. Shapray, contends that because Mr. Fraser is a British Columbia resident, this court has no jurisdiction
to order that Mr. Fraser pay security for costs, failing which his action should be stayed. To do so, he contends,
would be to deny persons resident in the province access to our courts. Mr. Shapray contends, in the alternative, that
if there is jurisdiction, it should only be exercised in the most egregious of circumstances and that this is not such a
case.

4         Mr. Church, for the defendants, contends that there is jurisdiction. He relies upon the decision of this court
in Tordoff v. Canada Life Assurance Company (1985), 64 B.C.L.R. 46 (S.C.) where Proudfoot J. as she then was
said at p. 49:

         I firstly propose to deal with the argument put by counsel for the plaintiff that there is no
         jurisdiction to make the order asked for by the defendants because the plaintiff resides within the
         jurisdiction.

         Prior to 1976 a rule existed dealing with applications for security for costs involving non-resident
         plaintiffs. That rule was repealed and at present no rule exists with reference to security for costs
         against non-residents. Counsel for the plaintiff takes the position that I have no jurisdiction to deal
         with the application because the plaintiff is a resident within the province. That is not how I
         interpret the law to be at this time. I suggest the court does have jurisdiction to deal with the
         application on the basis of its inherent jurisdiction.

5       Mr. Church contends, as well, that the jurisdiction should be sparingly used, and only in special
circumstances. As Proudfoot J. said in Tordoff, supra, at p. 50:

        I am satisfied the court does have the inherent jurisdiction to make an order in some cases. The
        power would have to be exercised cautiously, sparingly and indeed under very special
        circumstances.
6       Mr. Church submits that the circumstances here are special and that this is a case in which security for costs
should be ordered.

7         Mr. Shapray submits that I should not follow Tordoff, contending that its authority has been undermined by
the British Columbia Court of Appeal in Boylan v. Chouhan (1988) 32 C.P.C. (2d) 204 at 206. In referring to the
finding of Proudfoot J. in Tordoff as to jurisdiction, Esson J.A. for the court said by way of obiter dicta:

         The question whether that is a correct conclusion is not before us today and I, therefore, will say
         no more about it other than I do not, with respect, think that the conclusion is supported by the
         authority referred to, which is the decision of this Court in Shiell v. Coach House Hotel Ltd.
         (1982), 27 C.P.C. 78, 37 B.C.L.R. 254, 136 D.L.R. (3d) 470 (C.A.). That dealt only with the




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         question of a plaintiff outside the jurisdiction and the extent of the power to make an order against
         such a plaintiff subsequent to 1976 when the express rule was removed.

8        Mr. Shapray cited the following passages in Blackstone‘s Commentaries on the Laws of England Vol. 1 at
pp. 129 to 131, Rees Welsh & Company, Philadelphia, 1898:

         In the three preceding articles we have taken a short view of the principal absolute rights which
         appertain to every Englishman. But in vain would these rights be declared, ascertained, and
         protected by the dead letter of the laws, if the constitution had provided no other method to secure
         their actual enjoyment. It has therefore established certain other auxiliary subordinate rights of the
         subject, which serve principally as outworks or barriers to protect and maintain inviolate the three
         great and primary rights, of personal security, personal liberty, and private property. These are:
         ..........

         3.          A third subordinate right of every Englishman is that of applying to the court of justice
                     for redress of injuries. Since the law is in England the supreme arbiter of every man‘s
                     life, liberty, and property, courts of justice must at all times be open to the subject, and
                     the law be duly administered therein. The emphatical words of magna carta, spoken in the
                     person of the king, who in judgment of law (says Sir Edward Coke) is ever present and
                     repeating them in all his courts, are these; nulli vendemus, nulli negabimus, aut
                     differemus rectum vel justitiam: ―and therefore every subject‖, continues the same
                     learned author, ―for injury done to him in bonis, in terris, vel persona, by any other
                     subject, be he ecclesiastical or temporal, without any exception, may take his remedy by
                     the course of the law, and have justice and right for the injury done to him, freely without
                     sale, fully without any denial, and speedily without delay.‖

9        Mr. Church contends that I ought to follow the Tordoff decision. He submits that the Court of Appeal did
not purport to overrule Tordoff and that I ought to follow it unless or until it is overruled. He points out that it is a
considered decision and that it has been followed by a further considered decision of this court which specifically
dealt with the Court of Appeal‘s obiter dicta in Boylan. That case is Gajic v. Wolverton Securities Ltd., [1995]
B.C.J. No. 2622, December 18, 1995, Vancouver Registry No. C942859. In that decision Errico J. said, at p. 14:

         The Court of Appeal expressed some doubt about that principle in Boylan v. Chouhan (1989), 32
         C.P.C. (2d) 204 but expressly did not rule on the point. In Boylan, supra, Esson J.A., as he then
         was, made reference to the Tordoff decision but not to this passage in Whitfield nor the cases
         cited by Murray J. The considered opinions of Proudfoot J. and Murray J. not having been
         overruled, I should follow them and find that the court does have this inherent jurisdiction.

10       In my view, I should follow Tordoff. I say that not only because of judicial comity, but also because I am
of the view that the inherent jurisdiction of the court should not be so limited that the court can never order a
resident plaintiff to post security for costs no matter what the circumstances may be. In the seminal article on
inherent jurisdiction, entitled The Inherent Jurisdiction of the Court published in Current Legal Problems (1970) p.
23, Master I.H. Jacob explored the juridical basis of inherent jurisdiction. He said, at pp. 27 and 28:

         For the essential character of a superior court of law necessarily involves that it should be invested
         with a power to maintain its authority and to prevent its process being obstructed and abused. Such
         a power is intrinsic in a superior court; it is its very life-blood, its very essence, its immanent
         attribute. Without such a power, the court would have form but would lack substance. The
         jurisdiction which is inherent in a superior court of law is that which enables it to fulfil itself as a
         court of law. The juridical basis of this jurisdiction is therefore the authority of the judiciary to
         uphold, to protect and to fulfil the judicial function of administering justice according to law in a
         regular, orderly and effective manner.
11       The conclusion I draw from the foregoing authorities is that while the court must have jurisdiction to do
what is necessary to prevent its jurisdiction from being abused, the court in exercising this power must weigh
carefully the right of our citizens to have access to the courts. In my view, the court should not make an order which




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would preclude the right of access except in egregious circumstances amounting to a likely abuse of the court‘s
jurisdiction.

12        In an ordinary case where a resident plaintiff is not sufficiently wealthy to be able to pay the costs of a
defendant if the plaintiff loses the lawsuit, that, in itself, would not justify an order for security for costs being made.
The bringing of a lawsuit without sufficient funds to pay loser‘s costs would clearly not be an abuse of the court‘s
jurisdiction. The plaintiff would simply be seeking recourse to the courts which must be available to all members of
the public whether they are wealthy or poor.

13       In summary, I am in basic agreement with the test laid down by Proudfoot J. in Tordoff.

14       Mr. Church argues that Mr. Fraser is pressing a claim that is clearly spurious and without merit. Mr.
Shapray, for Mr. Fraser, has taken me in some detail through the basis of Mr. Fraser‘s claim. Suffice it to say that I
am not satisfied that the claim is without merit. It may prove to be without merit upon the trial of the case where
matters such as credibility can be taken into account. It may prove to be a case with merit. I certainly cannot say at
this point that it is a case that is necessarily doomed to failure.

15        Mr. Church argues that Mr. Fraser is either without exigible assets, or if he has assets of value, he is
actively trying to avoid payment of judgments that have been taken against him, principally but not entirely, by the
Department of National Revenue.

16       Mr. Shapray points out that Mr. Fraser has been embroiled in matrimonial litigation for several years and,
as a result, his principal assets are tied up pending outcome of that litigation. The materials before me bear out this
submission. Mr. Church, for the defendants, submits that I should draw the inference that Mr. Fraser is actively
seeking to avoid paying the judgments against him. I do not think this is an inference that I can properly draw and I
decline to do so.

17       In my view this is not a case in which the inherent jurisdiction of the court should be exercised to order a
resident plaintiff to pay security for costs. The application is therefore dismissed.

18       I turn next to the application for an order requiring the plaintiff to answer certain questions on examination
for discovery and produce certain documents to show his ability to pay a potential debt of $600,000 in December
1995. The significance of that date is that it was during that month that a document, which the defendants claim is
an agreement which would preclude the plaintiff‘s claim, was signed.

19        In the statement of claim, paragraph 39 thereof, Mr. Fraser alleges that the agreement was entered into
under circumstances of undue influence and/or economic duress. Mr. Church contends that he ought to be entitled
to explore the question of Mr. Fraser‘s assets at and about the time of the alleged economic duress. The questions
are set out in the examination for discovery of Mr. Fraser. They are questions 114 through 124, as follows:

         114         Q.     At this point in December 1995 you were judgment-proof? You had made
                            yourself judgment-proof?
                     A.     I don‘t understand where the -- I do not believe so at all.
         115         Q.     No, you have had assets available to satisfy a demand for $600,000?
                     A.     Absolutely, I did.
         116         Q.     What were they?
                     A.     Various.

Then Mr. Shapray interjects with the words, ―Don‘t answer that question‖.

         117         Q.     I am suggesting you did not have the money? am suggesting to you that you
                            made yourself judgment-proof?




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Then Mr. Shapray says, ―Go ahead, he answered that question‖.

Then Mr. Church, ―Well, he said, no, and I am saying..........‖

         118         Q.    Well, okay, what did you have at that time?
                     A.    I had --
         119         Q.    You certainly didn‘t have a million dollars, we know that.

Mr. Shapray interjects again.

         120         Q.    What did you have in December 1995 to satisfy a claim for $600,000?
                     A.    Substantial real estate holdings.
         121         Q.    What?
                     A.    What do you mean by ―what‖, sir?
         122         Q.    Did you own a house? Did you own a ranch? Did you own a farm?
                     A.    I had a beneficial interest in several pieces of property.
         123         Q.    Well I am going to leave this inquiry with you. I want to know what you had in
                           December 1995 that you say were your assets or your cash, whatever it was to
                           satisfy a $600,000 debt, and you can provide that to me. Did you have any
                           outstanding judgments against you in December 1995?
                     A.    I am not sure.
         124         Q.    You certainly do now.

Mr. Shapray then says, ―What has that got to do with anything? Don‘t answer that question.‖

20       Mr. Church takes the position that he is entitled to examine on that subject and Mr. Shapray takes the
position that he is not.

21       I am going to rule against the motion. I do so with some hesitation, as I can see at least marginal probative
value to this particular exploration. It might have some probative value in respect of the allegation of economic
duress. At the same time, I am satisfied that this line of questioning, particularly if carried beyond the answers
which were received, could result in a detailed exploration of a man‘s state of wealth or state of non-wealth as the
case may be, and that that is a major invasion into a man‘s privacy which is generally only allowed in matters of
execution on judgments that are not paid and perhaps, in some other circumstances. However, in the present case I
am of the view that to allow an exploration of the nature that is requested by the defendants has a potential
prejudicial effect upon Mr. Fraser‘s privacy which well outweighs any apparent probative value that there may be.

22       The court is entitled to weigh prejudicial effect against probative value and if the court is of the view that
the evidence that is sought is such that the prejudicial effect outweighs the probative value, the court may draw the
line and say ―no‖ to that avenue of exploration. I have in mind particularly the judgment of the Supreme Court of
Canada in R. v. Seaboyer, [1991] 2 S.C.R. 577 at 610-11,where that particular issue, albeit it in the field of criminal
law, was settled by the court.

23       There were other aspects to the application by the defendants. Counsel advised that they have, during the
course of this hearing, met and been able to resolve those other matters by agreement. I think this leaves simply the
matter of costs. Are there any submissions with respect to costs?

…………..




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                                                 Forliti (Guardian ad litem of) v. Woolley

2002 BCSC 858
British Columbia Supreme Court
Vancouver, British Columbia

1.        GARSON J.:— Three applications are before the court concerning the examinations for discovery of the
plaintiff Mrs. Forliti, the defendant Dr. Woolley, and the defendant Dr. Kim Sing.

2.        On all three examinations there were objections taken to the questions asked, or the form of the questions
asked. The parties appear before me, as their case management judge, to request rulings on the objections taken at
the three examinations for discovery.

3.       I propose first to describe the facts alleged by the plaintiff to the extent that it is necessary to make
determinations of relevancy, next to outline the legal principles that govern the conduct of examinations for
discovery as those principles apply to these applications, and then to rule on each objection taken. Both counsel have
requested that I rule on these objections despite the fact that neither counsel completed their oral submissions.
Counsel have provided me with written briefs. I made rulings on some of the objections during the course of the oral
hearing and I will not repeat those rulings in these Reasons.

Background Factual Allegations

4.       Mrs. Forliti gave birth to Blue Forliti on October 18, 1997, at Burnaby Hospital. Blue Forliti was born by
vaginal breech delivery.

5.       The plaintiffs allege that the defendants were negligent in failing to apply reasonable skill in the provision
of medical care, treatment and professional services, in failing to consider whether in all the circumstances a vaginal
delivery was appropriate and in failing to intervene in a timely manner or at all to prevent injury to Blue Forliti.

6.       The plaintiffs allege that as a result of the defendants‘ negligence Blue Forliti has suffered severe injuries
associated with a lack of oxygen during birth. I will not detail the extensive list of injuries alleged.

7.       It is important to note (for the purposes of the rulings I am requested to make) that at some time before
Mrs. Forliti‘s labour began there was an attempt to reposition the baby in the womb, owing to the fact the baby was
in a breech position. This procedure is called an ‗external version‘. This procedure was not performed by Dr.
Woolley. I am told that one of the issues to be determined in this action relates to Dr. Woolley‘s knowledge of this
earlier procedure. Some of the objections taken at the examination for discovery of Dr. Woolley relate to his
knowledge of this earlier external version procedure.

Scope of Examination for Discovery

8.      Examinations for discovery are governed by Rule 27 of the Rules of Court. Concerning the scope of the
examination R.27(22) states, in part:

         Unless the court otherwise orders, a person being examined for discovery shall answer any
         question within his or her knowledge or means of knowledge regarding any matter, not privileged,
         relating to a matter in question in the action ..........

9.      The following are principles, relevant to this application, which emerge from the case law concerning the
conduct of examinations for discovery:

         (a)         The scope of an examination for discovery extends to any matter relating to a matter in
                     question in the action and is in the nature of a cross-examination. The question need not
                     be focused directly on a matter in question in the action but need only relate to such a



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                     matter. ―Rigid limitations rigidly applied can destroy the right to a proper examination for
                     discovery.‖

                     (Cominco Ltd. v. Westinghouse Canada Ltd. (No. 4) (1979), 11 B.C.L.R. 142 (C.A.))

         (b)         On an examination for discovery, questions are limited to relevant issues (relevance
                     being broadly defined, in this context, by the judgment in Cominco) between the party
                     conducting the discovery and the party being examined. In other words, questions may
                     not be put which are relevant only to issues between the party conducting the discovery
                     and another party (not being examined).

                     (Nikal et al. v. Caira (1993), 16 C.P.C. (3d) 119 (B.C.S.C.))

         (c)         A witness need not answer questions soliciting an opinion on an examination for
                     discovery. There is an exception to this rule where the party examined is asked questions
                     regarding his or her professional conduct or competence where that conduct and/or
                     competence is in issue in the action. Questions soliciting an opinion must pertain to the
                     area of expertise of the individual being examined. The party being examined need not
                     answer questions pertaining to the conduct of another defendant. For example in this case
                     the doctor sued for professional negligence may properly be asked questions which solicit
                     from him his professional opinion concerning his own treatment of Ms. Forliti during her
                     labour and delivery, but he may not be asked questions which solicit from him an opinion
                     as to the negligence of another doctor or a nurse.

                     Teachers‟ Investment & Housing Co-operative (Trustee of) Jennings Chong (Guardian
                     ad litem of) v. Royal Columbian Hospital (1996), 2 C.P.C. (4th) 242; Gelt Holdings Ltd.
                     v. Pannell, (1997), 13 C.P.C. (4th) 249 (B.C.S.C.).

                     Crocker v. MacDonald, (1992), 116 N.S.R. (2d) 181 (N.S.S.C.T.O.). (But see also Beber
                     v. Bloch, [2000] O.J. No. 3142 (Ont. S.C.J.)) in which the Ont. S.C.J. per Lamek J. held
                     that it was not ―improper on discovery to seek the opinion of one defendant about the
                     conduct of another‖.)

         (d)         Hypothetical questions may properly be put to a witness where the witness has expertise
                     and when the hypothetical question is relevant to some issue in the case, provided the
                     question is not overly broad or vague.

                     Motaharian v. Reid (1989), 39 C.P.C. (2d) 141 (Ont. H.Court)

         (e)         Counsel for the party being examined may object to the form of a question on the
                     grounds that it is vague, confusing, unclear, overly broad or misleading. An example of a
                     misleading question is the misstatement of earlier testimony. The proper conduct of
                     counsel in this instance is to state the objection to the form of the question and the
                     reasons for objection. It is not appropriate for counsel to make comments, suggestions, or
                     criticisms.

                     McLachlin & Taylor (British Columbia Practice, 2d ed. (Butterworths: Markham, 2002)
                     at p. 27-114-120). say in their commentary on Rule 27(24):

                     The court will not order a question to be answered if the meaning of the question to be
                     answered is not clear, or if it appears to involve questions of law:.......... [citations
                     omitted] The questions should be set out in concrete form and should not depend for their
                     meaning on previous questions or answers..........:




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                     (See also C.D. Cudmore, Choate on Discovery, 2d ed. (Carswell: Toronto, 2002) at 224;
                     (G. Harris, Discovery Practice in British Columbia, looseleaf, (CLE: Vancouver, 2002) at
                     3.658, 3:85; F.D. Cass et al., Discovery Law, Practice and Procedure in Ontario
                     (Carswell: Toronto, 1993) at p. 279).

Rulings on Examination for Discovery of Dr. Woolley

10.       It serves no useful purpose to reproduce each portion of the transcript containing the questions objected to.
In most cases the contentious questions, dialogue between counsel, and answers cover several pages. I therefore
attach to these reasons, an appendix of the rulings I have made on the individual questions.

Conclusion

11.    At the hearing of this matter I indicated to plaintiff‘s counsel my views regarding certain intemperate
comments which he made at the examinations for discovery when objections were made. I do not need to repeat my
comments in these Reasons.

12.       As mentioned above in Cominco, Mr. Justice Seaton said, at p. 151, ―Rigid limitations rigidly applied can
destroy the right to a proper examination for discovery.‖ Counsel should endeavour to be restrained in their
objections. An examination for discovery is not a three-way conversation. It is best to follow a more formalistic
approach to objections. Although, in this examination for discovery, many questions posed did require clarification
because they were ambiguous, misleading, or vague there were many other instances in which the objections or
interjections were overly rigid.

13.     Counsel should contact the registry to arrange a convenient time to hear the application with respect to the
examination for discovery of the plaintiff, Mrs. Forliti.

                                                      Appendix I

                                      Examination for Discovery of Dr. Woolley

Q. 4 - Dr. Woolley was asked why he retired. - Not relevant to the issues in this action.
Q. 36 - answered at Q. 37.

Q. 50 - answered at Q. 52 after interruption by defence counsel.
Q. 52 - answered

Q. 85 - Dr. Woolley was asked ―why‖ external versions to correct the breech position were performed. This event
took place before Dr. Woolley‘s involvement and concerned conduct of another doctor. Although defence counsel
might have articulated her objection somewhat more clearly, the objection was correctly taken. There then followed
an exchange between counsel which shifted to other questions. The next question put to Dr. Woolley was Q. 89 and
it was answered.

Q. 106, 107 - answered at Q.108.

Q. 109 - Dr. Woolley was asked about normal procedure for external heart monitoring during an external version.
This question was intended to solicit an opinion from Dr. Woolley on the standard of care of another physician or
nurse. That is not a proper question. In his written submissions on this question, Mr. Lauk said that he was prevented
from finding out what Dr. Woolley knew about the external versions performed on Mrs. Forliti. That is not what he
asked at Q. 109.

Q. 110 - Q.112 - answered

Q. 116, 117 - answered

Q. 121 - this was an improper objection but the question was answered at Q. 126.




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Q. 128 - answered

Q. 138 - There was no objection by counsel. The question was answered, not the answer plaintiff‘s counsel may
have expected but he did not ask a follow-up question.

Q. 149 - The question asked was ―What is the usual manipulation of a breached baby, of the placenta?‖ Defence
counsel interrupted and asked for clarification. The question is confusing. The objection was proper.

Q. 150 - Dr. Woolley asked for clarification of what had been asked at Q.149 but plaintiff‘s counsel then asked a
different question. At Q. 150 plaintiff‘s counsel purported to restate Dr. Woolley‘s earlier testimony but did not do
so accurately which lead to a further objection which was proper.

Q. 176 - answered at Q. 184 and following.

Q. 203 - Defence counsel improperly interjected. Plaintiff‘s counsel is entitled to cross-examine the witness. The
witness answered the question at Q.204 and following, there was an interjection by defence counsel that seemed to
side-track plaintiff‘s counsel and the question was not pursued. I order that Dr. Woolley may be examined further on
the matters canvassed at questions 203 - 216.

Q. 223 - The question asked was ―So in a differential diagnosis you would not know that one of the possibilities in
Blue Forliti‘s version attempts was an entanglement of the umbilical cord?‖ This again is a reference to an event
before labour handled by another physician. The objection was proper because the question as worded seems to be
soliciting an opinion from Dr. Woolley on another physician‘s care, although the question is not clear. Plaintiff‘s
counsel explained after the objection, which was taken to this question, that he was attempting to determine what
impact, knowledge of the previous versions attempts, would have had on Dr. Woolley at the time of the labour and
delivery. Defence counsel said, ―I think it‘s not appropriate to put to Dr. Woolley today after the fact information he
didn‘t have at the time.‖ The question was put to Dr. Woolley, the answer was not responsive, but plaintiffs‘ counsel
then pursued another line of questions. The question was put in a somewhat different but hypothetical form at Q.
277. An improper objection was taken but plaintiff‘s counsel pursued the question. Dr. Woolley answered the
question at Q.286.

Q. 229 - No objection was taken but defence counsel interjected improperly, but the question was answered at Q.
230.

Q. 250 - ruling made at hearing.

Q. 267 - Dr. Woolley was asked when he attempted to perform a version. Objection was taken on the grounds of
relevance. The objection was proper. Dr. Woolley did not do a version in this case and, accordingly, this question
was not relevant to his management of the labour and delivery. In effect, Dr. Woolley was being asked to comment
on the care provided by another physician who did perform the procedure. This question is not a proper question of
Dr. Woolley.

Q. 288 - ruling made at hearing.

Q. 289 - ruling made at hearing.

Q. 341 - portion of transcript missing from affidavit

Q. 381 - answered at 387 and 388

Q. 392 - ruling made at hearing.

Q. 431 - 432 - Plaintiff‘s counsel misquoted earlier evidence of the witness. The objection was proper.

Q. 433 - 435 - answered.

Q. 464,483, 494 - ruling made at hearing.




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Q. 552 - Dr. Woolley volunteered an opinion on a subject outside his area of expertise, general surgery. Plaintiff‘s
counsel pursued a line of questions regarding relative risks of other abdominal surgery compared to caesarean
sections. Objection was taken by defence counsel on the grounds that the opinion solicited was outside his area of
expertise. Dr. Woolley answered the question at Q. 553 saying that he did not know the answer. No further answer is
required.

Q. 558 - An appropriate clarification was requested by counsel.

Q. 565 - Dr. Woolley was asked about the rate of caesarean sections, ―nowadays‖. As already noted, Dr. Woolley is
retired. The birth which is the subject matter of this action took place in 1997. In the circumstances of this case
questions about rates of caesarean births in 2002 are not relevant.

Q. 567 - 568 - ruling made at hearing.

Q. 569 - answered at Q. 571.

Q. 577 - answered at Q. 581.

Q. 608 - 611 - Q. 608 may be two questions in one, or alternatively the first question was a proposition that
plaintiff‘s counsel expected the witness to accept as the basis for the second question. Defence counsel interjected.
After an exchange between counsel, plaintiff‘s counsel clarified that he was asking Dr. Woolley to make the
assumption. In his answer to the question, Dr. Woolley refused to make the assumption that Mrs. Forliti was aware
of the possibility of fetal bradycardia. Dr. Woolley should answer Q. 608 with the clarification made by plaintiff‘s
counsel.

…




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                                          Cominco Ltd. v. Westinghouse Canada Limited

Court of Appeal
Judgment – March 7, 1979

          Seaton J.A.: - The learned chambers judge made a series of rulings respecting the obligation of employees
or officers of the defendants Canadian General Electric Company Limited, Pirelli Cables Limited, Canada Wire and
Cable Company, Limited, and Northern Telecom Limited to answer questions upon examination for discovery [9
B.C.L.R.100]. From some of those rulings the plaintiff (appellant) appeals, Pirelli and Northern Telecom cross-
appeal with respect to others. Though the arguments before the learned chambers judge took seven days and his
decision was given promptly, he gave extensive reasons for judgment. Many areas of dispute were eliminated by
those reasons for judgment; all were illuminated. They have permitted the argument before us to focus on precise
areas.

INTRODUCTION

         I am bound in these reasons to speak in generalities because an examination of the precise questions will
not resolve the problems. The examinations for discovery have been adjourned, not concluded. If a question is
rejected because of its precise wording, that objection will be overcome by a revised question when the examination
continues. A new objection will be made and the question will not have been resolved. Notwithstanding the general
nature of my observations, they are directed to the facts and the issues in this case.

         There was a fire at the appellant‘s zinc plant at Trail, British Columbia, on 7th December 1973 which
originated in an electrical switch room. The cause of the fire is not disclosed in the pleadings and is not relevant.
The allegation is that the fire spread rapidly because it was the propensity of the insulating sleeve on certain cables
to burn and spread fire. The cables were manufactured and supplied by defendants in the action.

         The part of the cable that, it is alleged, propagated fire is the outer sleeve. Its base is polyvinylchloride,
commonly called PVC. The PVC is combined with other things, and the result is also, somewhat loosely, called
PVC. PVC has many uses and even in cables there are significant differences in its composition, depending on the
contemplated use. Each company will answer the varying demands in what it thinks to be the best way. Two
companies will produce a cable that meets the same Canadian Standards Association (CSA) tests, but the cables will
not be identical. Similarly, a company that makes a number of different cables will not use the same type of PVC in
each.

         It is alleged in the statement of claim that the cable here was Teck cable. That is a Canadian term that
describes an armoured cable, whether it has a PVC sleeve or not. The word ―Teck‖ does not describe the sleeve.
CSA standards for Teck do not differentiate between different sleeves but set temperature and other standards that
apply to all Teck cable. Non-CSA approved Teck includes cable that is similar but not submitted for approval, or
substantially similar but not designed to meet the Teck CSA standards.

         The appellant claims several million dollars special damages as well as general damages. All of the
defendants other than Westinghouse Canada Limited are manufacturers of the cable in question and, it is said by the
appellant, liable in negligence. All of the defendants other than Phillips Cables Limited are sellers of the cable in
question to the plaintiff and, it is said by the appellant, are liable in contract and for breach of statutory warranty.

         There are a number of causes of action including butch of contract, breach of statutory warranty, negligent
misrepresentation, breach of warranty, negligent failure in manufacture, failure to warn the appellant as a purchaser,
and failure to warn the appellant as a user. The appellant does not claim that the cable that was supplied fell short of
the standards of the CSA. It claims that the respondents manufactured and sold a dangerous product without giving
adequate warning either before or after the sale. Tied up in the allegations of negligence is the proposition that the
respondents either knew or ought to have known of the propensity of the cables to spread fire. It will be apparent
that many issues are raised by the pleadings that would not be raised in an ordinary-action for the supply of
defective goods or in an action related solely to the cause of the fire.



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SCOPE OF DISCOVERY

          Most of the issues before us deal with the scope of an examination for discovery. That is fixed by R.
27(22):

          ―(22). Unless the Court otherwise orders, a person being examined for discovery shall answer any
          question within his knowledge or means of knowledge regarding any matter, not privileged,
          relating to a matter in question in the action, and is compellable to give the names and addresses of
          all persons who reasonably might be expected to have knowledge relating to any matter in
          question in the action.‖

That is a new rule and it is somewhat different from the old. Why ―touching the matters in question‖ was discarded
in favour of ―regarding any matter . . . relating to a matter in question in the action‖ is not apparent to me. If there is
a difference, nothing in this appeal turns upon the difference.

          The observations of Hunter C.J. in Hopper v. Dunsmuir (1903), 10 B.C.R. 23 (C.A.) at pp. 28-29, retain
their validity and are worth repeating:

          ―No doubt some of the questions propounded and refused to be answered seem at first sight to be
          somewhat remote from the matter in hand, but I think it is impossible to say that the answers may
          not be relevant to the issues, and such being the case they are within the right given the cross-
          examining party by the rule. Even under the decisions on the English practice the Court could not
          disallow an interrogatory unless it was plain that the answer could not be relevant to the issue:
          Sheward v. Earl of Lonsdale (1880), 42 L.T.N.S. 172; In re Thomas Holloway (1887), 12 P.D.
          167.

          It is also obvious that useful or effective cross-examination would be impossible if counsel could
          only ask such questions as plainly revealed their purpose, and it is needless to labour the
          proposition that in many cases much preliminary skirmishing is necessary to make possible a
          successful assault upon the citadel, especially where the adversary is the chief repository of the
          information required.

          It was argued by the learned counsel for the respondent that only a sort of cross-examination was
          allowed by the rule; that it consisted in asking leading questions bearing directly on the issues,
          and, if thought proper, in a loud tone of voice. I cannot agree. I think that the function of a cross-
          examiner is not to play the role of the ass in the lion‘s skin, but to extract information that will be
          of use in the decision of the issues, and by the most circuitous routes if it shall appear necessary to
          do so.

          I may add that, in my experience of the use of this procedure in Ontario, no one ever suggested
          that the cross-examination was not to be one in reality as well as in name.‖

The matter in question in an action is defined by the pleadings. It does not follow that there ought to be a fine
scrutiny of the pleadings. We have heard an interesting argument of that nature but it is an inappropriate exercise.
Pleadings are amended; particulars are amended. The nature of the negligence or breach alleged is important, but
not the precise nature. We are not interpreting a contract or a statute; we are looking at pleadings to determine the
scope of a trial that is going to take place at some time in the future.

Miscellaneous Observations

          It was suggested that when the statement of claim alleged that the defendants knew or ought to have known
certain things, is should have set out specifically how such knowledge came to their attention or ought to have come
to their attention. The essential to be pleaded is knowledge. The means by which a party gained knowledge is,
properly, evidence of that knowledge; it might be set out in particulars but it need not be in the statement of claim.
To hold to the contrary would be to reject R. 19(23).



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         It has been said that each party is required to make out his own case. If that suggests that you cannot make
out a case by admissions, I think it to be wrong.

          There has been reference to the need for a party to know the case prior to discovery so that there will not be
―trial by ambush‖. Examination for discovery is one of the means by which ―ambush‖ at trial is avoided. After full
discovery the trial will have fewer surprises. It is the evidence of a witness that is to be discovered. He does not
need to know about the other side‘s case in order to answer honestly.

         It was said of many questions that they were objectionable either because they related to a different type of
cable or because they related to a period after the fire. Neither is a reason for excluding an otherwise admissible
question. Evidence that is relevant to one question does not become inadmissible because it is not relevant to
another issue.

          Counsel said that one cannot embark on a fishing expedition. I find little help in that statement. I take it
that a fishing expedition describes an examination for discovery that has gone beyond reasonable limits into areas
that are not and cannot be relevant. In those waters one may not fish. In other waters one may. That one fishes is
not decisive, it is where the fishing takes place that matters.

The Floodgate Argument

         This argument is dealt with separately because it is at the foundation of many of the objections. It goes
something like this: If the appellant is to ask us about associated companies or all PVC-jacketed cables, this
discovery will go on forever, we shall have to retain hundreds of people to prepare the answers, and the material will
be so voluminous that it will be impossible.

        The words ―means of knowledge‖ in R. 27(22) must have some limit and it must be based on
reasonableness. What is reasonable will depend on the case, the importance of the information to the case, the
expense and difficulty involved in obtaining the answers, and the other circumstances.

        Examples of improper use of the argument are not difficult to find. In the discovery of Mrs. Farago of
Northern Telecom Limited this is found:

         ―(Q. 385) Do you now work closely with the R and D department of Bell Northern?

         MR. KOWALCHUK: I instruct the witness not to answer the question.

         MR. WALLACE (Q. 386) Is there a common technical library between Bell Northern and the R
         and D department of Northern Electric?

         MR. KOWALCHUK: I instruct the witness not to answer the question.

         MR. WALLACE (Q. 387) Do you exchange technical information and publications etc.?

         MR. KOWALCHUK: Are you talking about now?

         MR. WALLACE: Now between Bell Northern and Northern Electric.

         MR KOWALCHUK: I instruct the witness not to answer.

         MR WALLACE: (Q. 388) Did you in the past exchange technical information and articles and so
         forth between Bell Northern Electric and the present defendant?

         MR. KOWALCHUK: When in the past are you speaking of?

         MR WALLACE: Well, let‘s take it up to February ‗71 first.



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         MR KOWALCHUK: Are you speaking of information on Teck cable?

         MR WALLACE. I am talking about any technical information.

         MR KOWALCHUK: I instruct the witness not to answer the question.‖

It was argued that each of these questions required the witness to go too far astray, that the floodgates would be
opened, that the discoveries would go on forever. I think that to be quite unreasonable.

Whether any of the questions would have been difficult to answer we do not know. The witness was not permitted
to say.

         There are limits to an examination for discovery but they are not drawn so as to exclude an otherwise
proper area simply because to enter the area would expose a great deal of material. Nor is an area of questioning
barred by the statement that if the plaintiff enters it the defendant will have to follow. The defendants can enter or
not enter an area as they see fit. If, as they say, it leads to nothing, then they are in no danger.

          If a question is difficult to answer, the witness can say so and can be cross-examined about the difficulty. It
is for the witness, not counsel to deal with that. Difficulty in answering does not exclude a whole area. It excludes
specific questions. No arts of fact is closed on the ground that to enter is would ―open the floodgates‖.

Rigid Limitations

        Rigid limitations rigidly applied can destroy the right to a proper examination for discovery. The following
exchange demonstrates the difficulties:

         ―MR WALLACE: (Q. 190) Right. And I produce to you a photograph set forth in an exhibit
         which is a C.G.E. exhibit with reference to Vulkeen Teck cable showing certain installations of
         Vulkeen cables.

         MR. HARVEY: What is the date of the publication?

         MR. WALLACE: Take a took and see.

         MR. HARVEY: I thought you might know the date.

         MR. WALLACE. Let‘s not fight.

         MR. HARVEY: I am not fighting. I have attached some significance to the time factor in this case
         and I am simply asking the date.

         MR. WALLACE: That‘s fine. Go ahead.

         MR HARVEY: Well, I‘m sorry, Mr. Wallace, on a brief look at it, I can‘t see a date.

         MR. WALLACE All right. So we don‘t have a date.

         MR HARVEY: I am objecting to -

         MR. WALLACE: Objecting to what?

         MA. HARVEY: To any proposed examination on the material.




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         MR WALLACE: I am now going to put the question. You can object to the question. (Q. 191) I
         am producing to you a document headed ‗Vulkeen Teck armoured cable‘ and ask for the purposes
         of identification it be marked as an exhibit.

         (Exhibit 12 for Identification: Document headed ‗Vulkeen Teck armoured cable‘)

         MR WALLACE: (Q. 192) Now, then, I show you two or three photographs of industrial
         installations of Teck cable. Would you look at those? Now, I am asking you: Are they not
         representative of the type of industrial installation [in] which you would expect Teck cable to be
         used?

         MR. HARVEY: Don‘t answer that. I object to that question. I instruct the witness not to answer.‖

A ruling that conduct after a particular time is not admissible could not support those objections. They are
unreasonable.

…

Cross-Examination on List of Documents

        The learned trial judge concluded that questions were not improper simply because they challenged the
defendants‘ list of documents. I agree with him.

         The question is stated thus in Northern Telecom‘s notice of cross-appeal:

         ―5. The learned Judge erred in law in failing to hold that questions which amounted to a cross-
         examination of this Respondent‘s Affidavit of Documents should not be answered‖.

         The question given under this heading follows:

         ―(Q. 890) Were any papers or records of the research produced as a result of your work on that -40
         jacket? A. That was -

         MR. KOWALCHUK; Just a minute, Mrs. Farago, please. Mr. Twining, there is an affidavit
         verifying the list of documents here. If you can find such an article in that list you can question
         her about it. If you can‘t, I suggest you are passing into the realm of questioning the affidavit of
         documents. You may be able to do that in some forum but it is my humble submission you can‘t
         do that here at this discovery.

         MR. TWINING: Well -

         MR. KOWALCHUK: If it were relevant and if we had it, you would get it.

         MR. TWINING: Are you instructing Mrs. Farago to refuse to answer questions?

         MR. KOWALCHUK: Yes.

         MR. TWINING: With respect to any documents that are not listed in your list of documents?

         MR. KOWALCHUK: No, it may be listed in your list of documents.

         MR. TWINING: All right, any documents that are not listed in either the plaintiff‘s or the
         defendant‘s list of documents?




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         MR. KOWALCHUK: Not necessarily. If you can come up with one, point it out to us. I may
         think about that even though it is not listed in a list. You are questioning her as to whether it
         exists, whether she did one, whether we have one; ultimately, I would suppose, why it isn‘t in the
         list.

         MR. TWINING: You are instructing Mrs. Farago not to answer questions directed to the existence
         of documents not disclosed in your list, is that correct?

         MR. KOWALCHUK: The existence of documents in the possession of Northern Telecom, yes.

         MR. TWINING: Documents which are not disclosed in the affidavit of documents?

         MR. KOWALCHUK: Or in your list of documents.

         MR. TWINING: I want to be perfectly clear.

         MR. KOWALCHUK: All right, go ahead, ask the question.

         MR. TWINING: It is our position that these documents am in the possession of Northern
         Telecom. I don‘t want to play games about that. Is it your position that you are instructing Mrs.
         Farago not to answer questions with respect to documents not disclosed or even the existence of
         documents not disclosed in the plaintiff‘s or the defendant‘s or in Telecom‘s list?

         MR. KOWALCHUK: I am advising Mrs. Farago not to answer any questions that I consider are
         passing into the realm of cross-examination or questioning the affidavit of documents, whether it
         is your affidavit of documents or ours is irrelevant, specifically ours in this case. Now, you be
         guided by that if you wish. That is as far as l am going to assist you in that regard.

         MR. TWINING: (Q. 891) Mrs. Farago, my last question to you was were technical documents or
         papers prepared as a result of your work on -40F PVC jacket?

         MR. KOWALCHUK: I instruct the witness not to answer the question.‖

         The argument in support of this objection is based on R. 26(6):

         ―(6) The Court may order a party to attend and be cross-examined on as affidavit delivered under
         this rule.‖

The new rules provide for a list of documents to be given and for an affidavit verifying the list. The respondents say
that those provisions coupled with R. 6(6) provide a procedure for questioning the affidavit and the list and that it is
the only procedure. They say that one may not, on an examination for discovery, ask questions that tend to
challenge the list already supplied.

          I see no need to bar a question which has the effect of challenging the list. Such a ruling would offer too
many advantages to a dishonest litigant and would fail to recognize the great difficulty of providing a complete list
in a case such as this.

          I agree with the learned chambers judge that the list of documents is not conclusive, that there is no rule
excluding from examination for discovery questions relating to documents alleged to be in possession of the person
being examined but not on the list of documents, and that no question is excluded simply because it calls into doubt
the list of documents or the affidavit in support.

…




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List of Witnesses

         In attempting to utilize the final words of R. 27(22) - ―(27) . . . is compellable to give the names and
addresses of all persons who reasonably might be expected to have knowledge relating to any matter in question in
the action.‖ - counsel for the appellant asked for a list of the witnesses that the defendants proposed to call at the
trial. There are other new provisions respecting witnesses, but that question cannot be justified except under subrule
22 The Evidence Act, R.S.B.C. 1960, c. 134, makes provision for disclosure but does not call for a list of witnesses.

           I would be surprised if parties at an examination for discovery knew which witnesses they would call. If
the word ―witness‘‘ is to be used with respect to this rule, I think it must refer to witnesses to the occurrence that led
to the litigation, not witnesses at trial.

          I would have preferred that the matter be left there to be explored from time to time by chambers judges,
but that is not feasible. All counsel agree that when the examinations are continued the question will be asked in the
words of the provision. At least one counsel has already done that. In the result, we are bound to consider the scope
of the provision. I expect that the rule was drawn with litigation quite different from this in mind and was to
facilitate discovery of who saw the occurrence from which the litigation grew. Here, to answer the question
truthfully would involve supplying lists containing thousands of names.

         It appears that this rule was made with R. 28 - ―Pre-Trial Examination of Witness‖ - in mind. The pre-trial
examination also refers back to R. 27(22) in R. 28(8), and that is of assistance in interpreting R. 27(22). It
eliminates the suggestion that what we are searching for is witnesses who will be called at trial.

         Reading RR. 27 and 28 and the Evidence Act provisions for disclosure, I conclude that R. 27(22) does not
have in mind experts, even though a matter in question in the action might be one upon which expert evidence is to
be called. I use the term ―expert‖ to describe a witness with no personal knowledge of the facts giving rise to the
issue to which his expertise is to be applied – a pure expert. If that suggestion is correct, the doctor who treated the
patient would be a person contemplated by R. 27(22) but the doctor who is called in solely to advise counsel and
give expert evidence would not. With respect to him you would go to the special provisions in the Evidence Act.
Can a party ask for a list ―of all persons who reasonably might be expected to have knowledge relating to any matter
in question in the action‖? It is impossible to deal with such a question in this case. I would require that the question
be focused upon a particular matter so that a person could give a sensible and honest answer without a great deal of
research. What is reasonable in this case may have to be decided by a chambers judge after the discoveries have
recommenced. I doubt that I can be more helpful at this stage.

        To summarize: (1) There is now no exclusionary rule respecting names and addresses of witnesses; (2)
Rule 27(22) does not call upon a party to reveal what experts it has retained; and (3) in this case a question in the
words of the role would be unreasonable and an answer to it should not be required.

…

CONCLUSION

          I think that I have now dealt with all of the questions noted in the appeal and the cross-appeals, not in the
sense that the individual questions have been examined - for reasons set out at the beginning, that would not be
useful - but in the sense that all of the issues raised by the individual questions have now been ruled upon.

          I have felt bound to conclude that the appellant has the right to discovery in a broad area, but I worry about
that right being used unreasonably. There: has been frequent reference to the need for reasonableness. It is required
of all parties, particularly in complex litigation such as this. If there are further problems the parties will have to go
back to the chambers judge and he might have to deal firmly with any abuses. If at the end of the trial it appears that
the plaintiff discovered extensively in areas in which it did not succeed, the trial judge might make a suitable order
for costs.




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         The appellant has very substantially succeeded on this appeal and the cross-appeals. Most of the questions
originally submitted to the learned chambers judge have been answered in its favour. I think it is entitled to its costs
here in any event. It should have the costs below but in the cause so that its recovery of those costs will be
dependent on its success at trial.

         I would allow the appeal and the cross-appeals to the extent set out in these reasons.

                                                                                                    Order accordingly.




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                                                                    R. v. Dunbar

2003 BCCA 667
British Columbia Court of Appeal
Vancouver, British Columbia

Finch C.J.B.C., Braidwood and Lowry JJ.A.

I.       INTRODUCTION

[1]      The appeals in R. v. Dunbar, R. v. Pollard, R. v. Leiding and the application to reinstate the appeal in R. v.
Kravit were heard together over five days on 8-12 September 2003. In each of these cases, the appellants raise
several grounds of appeal, including the common argument that their solicitor at trial was incompetent. Because of
the overlapping legal issue, as well as other overlapping concerns regarding the admissibility of fresh evidence, we
address all four appeals in these reasons for judgment.

[2]     For the reasons that follow, we would dismiss the appeals in R. v. Dunbar, R. v. Pollard and R. v. Leiding
and dismiss the application to reinstate the appeal in R. v. Kravit.

[3]       Section II of these reasons sets out the procedural background to these four appeals and the general nature
of the solicitor incompetence claims, as well as the relevant law with respect to ineffective assistance of counsel at
trial. It also considers the appellants' applications to adduce fresh evidence and for production and disclosure of
privileged documents which are common to these four appeals. The principles outlined in section II are then applied
to assess the merits of the four appeals, both on substantive grounds particular to each case and the common solicitor
incompetence claims, under separate headings below.

II.      GENERAL BACKGROUND AND GUIDING PRINCIPLES

A.       Overview of proceedings and fresh evidence applications

[4]      On 20 November 2002, Madam Justice Huddart ordered that the appeals in R. v. Dunbar, R. v. Pollard and
R. v. Leiding be heard together. The appellants in these otherwise unrelated cases each appeal their respective
second degree murder convictions on various grounds. The only common argument is that the incompetence of their
counsel at trial gave rise to a miscarriage of justice. The same lawyer, John Banks, represented each of Mr. Dunbar,
Mr. Pollard and Mr. Leiding at their trials.

[5]      One week before the appeals in Dunbar, Pollard and Leiding were to be heard, a separate panel of this court
adjourned the application to reinstate the appeal in R. v. Kravit so that it could be added to these proceedings. That
case involves similar allegations of solicitor incompetence directed at Mr. Banks.

[6]      The appellants seek to adduce fresh evidence on appeal to support their arguments that trial counsel was
incompetent. This fresh evidence consists primarily of affidavits and attached exhibits filed in one or all of the
Dunbar, Pollard, Leiding and Kravit matters. Mr. Goldberg is counsel for all the appellants, and asks this Court to
consider all of this affidavit material together and apply it as a whole to each of the respective appeals. The
appellants argue that this evidence points to a pattern of incompetent conduct which bolsters each of their claims.

[7]      The Crown seeks to adduce fresh evidence in the form of affidavits sworn by the appellants' trial counsel
and co-counsel. The Crown also contends that the bulk of the appellants' fresh evidence is inadmissible, primarily on
the basis of relevance. The Crown therefore applies for a direction to limit the admissibility of the appellants' fresh
evidence and seeks an opportunity to respond to any fresh evidence that is admitted.

[8]      In addition to these affidavits, the appellants also seek an order for production and disclosure of certain
materials which Mr. Banks provided to the Law Society of British Columbia as part of his application for




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reinstatement (the "Law Society material"). The appellants contend that these documents will provide further fresh
evidence to support their claims that trial counsel was incompetent.

……………………………………………..

VII.     AFTERWORD

[330] These reasons for judgment cannot be concluded without some comment on the conduct of counsel for the
four appellants, Mr. Goldberg. We have concluded that none of the four cases raised any meritorious ground of
appeal. If that were all there was to these appeals, the court would have no criticism of counsel's conduct. The
administration of justice depends upon the willingness and ability of counsel to advocate difficult cases, and to raise
new arguments, without fear of personal consequences. As has aptly been said, some of the best counsel work has
been done in a losing cause. The courts, and public confidence in the administration of justice, depend upon
counsels' integrity, independence and courage. It is counsels' duty to represent the unpopular client or cause by all
lawful means, including the presentation of novel or innovative arguments.

[331] Regrettably, in this case, counsel's zeal blinded him to his professional responsibilities. Mr. Goldberg
presented, and relied upon, affidavit material that is unworthy of any lawyer. Our reasons show these affidavits are
replete with inadmissible hearsay, opinions, speculations, argument, and the irrelevant. The affidavits are rambling,
repetitive and disorganized. They contain serious allegations of unprofessional conduct and substance abuse, against
another lawyer or former lawyer, all of which allegations were unfounded.

[332] Mr. Goldberg's factums, and other written submissions, are similarly unprofessional. The factums are
rambling and disorganized. They are devoted in large part to repeating, and amplifying, the unfounded allegations
contained in the affidavit evidence; and to adding further speculation in the guise of argument. Moreover, the written
submissions are presented almost completely without legal authority. In most instances any authority that is cited is
irrelevant. These written arguments are among the poorest examples presented in this court in recent memory.
Whether this reflects incompetence rather than inappropriate conduct we are unable to say.

[333] Mr. Goldberg's oral submissions also went far beyond any acceptable limit of appellate advocacy. He used
his right of audience, and the privilege surrounding judicial proceedings, to make seriously damaging, but
completely unfounded, allegations against John Banks. This court has held that the privilege which accompanies
legal proceedings should not be used as a cloak for personal and irrelevant attack: see R. v. Dean, [1997] B.C.J. No.
1354 [paragraphs] 15-16 (C.A.).

[334] Mr. Goldberg said that Mr. Banks was reckless in his conduct of his clients' cases, that he probably lied
concerning his parents' health to get the sympathy of the court, and that Mr. Banks had a history of cocaine or other
substance abuse. There is no factual foundation in any admissible affidavit evidence to support these allegations.

[335] As counsel for the Crown, Mr. Sweeney, observed in his reply submissions, counsel should not make
unfounded allegations against other counsel, or the court. His duty to his client does not go so far.

[336]    In Rondel v. Worsley, [1967] 3 All E.R. 993 (H.L.), Lord Reid stated the duty of counsel to the client (p.
998):

         Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and
         ask every question, however distasteful, which he thinks will help his client's case.

He continued, however, to outline the manner in which the lawyer's role as an officer of the court imposes some
restraint on the duty to the client (p. 998):

         As an officer of the court concerned in the administration of justice, he has an overriding duty to
         the court, to the standards of his profession, and to the public, which may and often does lead to a
         conflict with his client's wishes or with what the client thinks are his personal interests. Counsel
         must not mislead the court, he must not lend himself to casting aspersions on the other party or



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         witnesses for which there is no sufficient basis in the information in his possession, he must not
         withhold authorities or documents which may tell against his clients but which the law or the
         standards of his profession require him to produce.

         Lord Upjohn similarly noted (p. 1034) that ―counsel is in a very special position and owes a duty
         not merely to his client but to the true administration of justice‖.

[337]    In R. v. Elliott (1975), 28 C.C.C. (2d) 546 at 549 (Ont. C.A.) Kelly J.A. for the court said:

         I consider it most unfortunate that any counsel, carried away by his enthusiastic support of his
         client's cause, should permit himself, by reason of his client's instructions, to make allegations
         inferring unjust conduct on the part of the Court, or unprofessional conduct on the part of brother
         solicitors without first satisfying himself by personal investigations or inquiries that some
         foundation, apart from his client's instructions, existed for making such allegations. His duty to his
         client does not absolve a solicitor from heeding his duty to the Court and to his fellow solicitors

[338]     Before such a serious allegation as cocaine abuse by counsel is made, there must be some evidence from a
reputable source to support it. Here, as Mr. Sweeney pointed out, there was no evidence from any independent
source - trial judge, prosecutor, court clerk, sheriffs officers or witnesses - to lend any credence to the proposition
that Mr. Banks was impaired by anything at any time during the course of these trials.

[339] Another example of Mr. Goldberg's excessive and misguided zeal deserves special mention. Mr. Goldberg
applied for an order that counsel for the Attorney General for British Columbia in the Kravit application, Mr. Harris,
withdraw from the case. The convoluted basis for this application appears to be that: Mr. Harris is associated in
practice with Richard Peck, Q.C.; that Mr. Peck was a bencher of the Law Society of British Columbia when it
engaged in an inquiry into Mr. Banks' conduct; that Mr. Peck was therefore in a conflict of interest between his
obligations as a bencher and those as a member of the law firm representing the Attorney General. When the court
asked Mr. Goldberg to state precisely what the basis of his application was, Mr. Goldberg said he "objected" to the
question. We concluded that the submission would not bear scrutiny, and that Mr. Goldberg knew this, but that he
was incapable of conceding that the application was hopeless.

[340] Perhaps Mr. Goldberg's most egregious excess was his statement that the courts are part of a defence team
to protect lawyers such as John Banks, and that John Banks knew he could rely on the courts to protect him. As
mentioned earlier in these reasons, those allegations are irresponsible and unprofessional. There is not a scintilla of
evidence to support them.

[341] We find it necessary to mention these matters because they have important consequences. It is impossible
to measure with any precision, but a reasonable estimate is that the hearing of these four appeals took twice as long
as the hearing should have taken if prepared and presented in a professional way. One cannot begin to estimate how
much more time and effort was wasted in the preparation of affidavits which were almost entirely inadmissible.

[342] One must assume that Mr. Goldberg was paid by someone for these efforts, whether a private or public
source. If so, this was a waste of money. Even if done without pay, the improper affidavit material and Mr.
Goldberg's submissions were a waste of the court's time, and a waste of other counsels' time, and of the expense of
having those other counsel appear.

[343] We would ask counsel for the Crown, Mr. Sweeney, to draw these reasons to the attention of the Law
Society of British Columbia, the Legal Services Society, or any other body who might reasonably have an interest in
controlling and preventing the conduct we have described.




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                                                    Toronto (City) v. C.U.P.E., Local 79

[2003] 3 S.C.R. 77

ARBOUR J. –

Introduction

1.        Can a person convicted of sexual assault, and dismissed from his employment as a result, be reinstated by a
labour arbitrator who concludes, on the evidence before him, that the sexual assault did not take place? This is
essentially the issue raised in this appeal.

2.        Like the Court of Appeal for Ontario and the Divisional Court, I have come to the conclusion that the
arbitrator may not revisit the criminal conviction. Although my reasons differ somewhat from those of the courts
below, I would dismiss the appeal.

II.      Facts

3.       Oliver worked as a recreation instructor for the respondent City of Toronto. He was charged with sexually
assaulting a boy under his supervision. He pleaded not guilty. At trial before a judge alone, he testified and was
cross-examined. He called several defence witnesses, including character witnesses. The trial judge found that the
complainant was credible and that Oliver was not. He entered a conviction, which was later affirmed on appeal. He
sentenced Oliver to 15 months in jail, followed by one year of probation.

4.        The respondent City of Toronto fired Oliver a few days after his conviction, and Oliver grieved his
dismissal. At the hearing, the City of Toronto submitted the boy‘s testimony from the criminal trial and the notes of
Oliver‘s supervisor, who had spoken to the boy at the time. The City did not call the boy to testify. Oliver again
testified on his own behalf and claimed that he had never sexually assaulted the boy.

5.       The arbitrator ruled that the criminal conviction was admissible as prima facie but not conclusive evidence
that Oliver had sexually assaulted the boy. No evidence of fraud nor any fresh evidence unavailable at trial was
introduced in the arbitration. The arbitrator held that the presumption raised by the criminal conviction had been
rebutted, and that Oliver had been dismissed without just cause.

                                                       …………

C        The Common Law Doctrines

22.       Much consideration was given in the decisions below to the three related common law doctrines of issue
estoppel, abuse of process and collateral attack. Each of these doctrines was considered as a possible means of
preventing the union from relitigating the criminal conviction of the grievor before the arbitrator. Although both the
Divisional Court and the Court of Appeal concluded that the union could not relitigate the guilt of the grievor as
reflected in his criminal conviction, they took different views of the applicability of the different doctrines advanced
in support of that conclusion. While the Divisional Court concluded that relitigation was barred by the collateral
attack rule, issue estoppel and abuse of process, the Court of Appeal was of the view that none of these doctrines as
they presently stand applied to bar the rebuttal. Rather, it relied on a self-standing ―finality principle‖. I think it is
useful to disentangle these various rules and doctrines before turning to the applicable one here. I stress at the outset
that these common law doctrines are interrelated and in many cases more than one doctrine may support a particular
outcome. Even though both issue estoppel and collateral attacks may properly be viewed as particular applications
of a broader doctrine of abuse of process, the three are not always entirely interchangeable.




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(1)      Issue Estoppel

23.       Issue estoppel is a branch of res judicata (the other branch being cause of action estoppel), which precludes
the relitigation of issues previously decided in court in another proceeding. For issue estoppel to be successfully
invoked, three preconditions must be met: (1) the issue must be the same as the one decided in the prior decision; (2)
the prior judicial decision must have been final; and (3) the parties to both proceedings must be the same, or their
privies (Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44, at para. 25, per Binnie J.). The
final requirement, known as ―mutuality‖, has been largely abandoned in the United States and has been the subject
of much academic and judicial debate there as well as in the United Kingdom and, to some extent, in this country.
(See G. D. Watson, ―Duplicative Litigation: Issue Estoppel, Abuse of Process and the Death of Mutuality‖ (1990),
69 Can. Bar Rev. 623, at pp. 648-51.) In light of the different conclusions reached by the courts below on the
applicability of issue estoppel, I think it is useful to examine that debate more closely.

24.      The first two requirements of issue estoppel are met in this case. The final requirement of mutuality of
parties has not been met. In the original criminal case, the lis was between Her Majesty the Queen in right of Canada
and Glenn Oliver. In the arbitration, the parties were CUPE and the City of Toronto, Oliver‘s employer. It is
unnecessary to decide whether Oliver and CUPE should reasonably be viewed as privies for the purpose of the
application of the mutuality requirement since it is clear that the Crown, acting as prosecutor in the criminal case, is
not privy with the City of Toronto, nor would it be with a provincial, rather than a municipal, employer (as in the
Ontario v. O.P.S.E.U. case, released concurrently).

25.       There has been much academic criticism of the mutuality requirement of the doctrine of issue estoppel. In
his article, Professor Watson, supra, argues that explicitly abolishing the mutuality requirement, as has been done in
the United States, would both reduce confusion in the law and remove the possibility that a strict application of issue
estoppel may work an injustice. The arguments made by him and others (see also D. J. Lange, The Doctrine of Res
Judicata in Canada (2000)), urging Canadian courts to abandon the mutuality requirement have been helpful in
articulating a principled approach to the bar against relitigation. In my view, however, appropriate guidance is
available in our law without the modification to the mutuality requirement that this case would necessitate.

26.     In his very useful review of the abandonment of the mutuality requirement in the United States, Professor
Watson, at p. 631, points out that mutuality was first relaxed when issue estoppel was used defensively:

         The defensive use of non-mutual issue estoppel is straight forward. If P, having litigated an issue
         with D1 and lost, subsequently sues D2 raising the same issue, D2 can rely defensively on the
         issue estoppel arising from the former action, unless the first action did not provide a full and fair
         opportunity to litigate or other factors make it unfair or unwise to permit preclusion. The rationale
         is that P should not be allowed to relitigate an issue already lost by simply changing defendants . .
         ..

27.      Professor Watson then exposes the additional difficulties that arise if the mutuality requirement is removed
when issue estoppel is raised offensively, as was done by the United States Supreme Court in Parklane Hosiery Co.
v. Shore, 439 U.S. 322 (1979). He describes the offensive use of non mutual issue estoppel as follows (at p. 631):

         The power of this offensive non-mutual issue estoppel doctrine is illustrated by single event
         disaster cases, such as an airline crash. Assume P1 sues Airline for negligence in the operation of
         the aircraft and in that action Airline is found to have been negligent. Offensive non-mutual issue
         estoppel permits P2 through P20, etc., now to sue Airline and successfully plead issue estoppel on
         the question of the airline‘s negligence. The rationale is that if Airline fully and fairly litigated the
         issue of its negligence in action #1 it has had its day in court; it has had due process and it should
         not be permitted to re-litigate the negligence issue. However, the court in Parklane realized that in
         order to ensure fairness in the operation of offensive non-mutual issue estoppel the doctrine has to
         be subject to qualifications.

28.      Properly understood, our case could be viewed as falling under this second category -- what would be
described in U.S. law as ―non-mutual offensive preclusion‖. Although technically speaking the City of Toronto is
not the ―plaintiff‖ in the arbitration proceedings, the City wishes to take advantage of the conviction obtained by the


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Crown against Oliver in a different, prior proceeding to which the City was not a party. It wishes to preclude Oliver
from relitigating an issue that he fought and lost in the criminal forum. U.S. law acknowledges the peculiar
difficulties with offensive use of non-mutual estoppel. Professor Watson explains, at pp. 632-33:

         First, the court acknowledged that the effects of non-mutuality differ depending on whether issue
         estoppel is used offensively or defensively. While defensive preclusion helps to reduce litigation
         offensive preclusion, by contrast, encourages potential plaintiffs not to join in the first action.
         ―Since a plaintiff will be able to rely on a previous judgment against a defendant but will not be
         bound by that judgment if the defendant wins, the plaintiff has every incentive to adopt a `wait and
         see‘ attitude, in the hope that the first action by another plaintiff will result in a favorable
         judgment‖. Thus, without some limit, non-mutual offensive preclusion would increase rather than
         decrease the total amount of litigation. To meet this problem the Parklane court held that
         preclusion should be denied in action #2 ―where a plaintiff could easily have joined in the earlier
         action‖.

         Second, the court recognized that in some circumstances to permit non-mutual preclusion ―would
         be unfair to the defendant‖ and the court referred to specific situations of unfairness: (a) the
         defendant may have had little incentive to defend vigorously the first action, that is, if she was
         sued for small or nominal damages, particularly if future suits were not foreseeable; (b) offensive
         preclusion may be unfair if the judgment relied upon as a basis for estoppel is itself inconsistent
         with one or more previous judgments in favour of the defendant; or (c) the second action affords
         to the defendant procedural opportunities unavailable in the first action that could readily result in
         a different outcome, that is, where the defendant in the first action was forced to defend in an
         inconvenient forum and was unable to call witnesses, or where in the first action much more
         limited discovery was available to the defendant than in the second action.

         In the final analysis the court declared that the general rule should be that in cases where a plaintiff
         could easily have joined in the earlier action or where, either for the reasons discussed or for other
         reasons, the application of offensive estoppel would be unfair to the defendant, a trial judge should
         not allow the use of offensive collateral estoppel.

29.       It is clear from the above that American non-mutual issue estoppel is not a mechanical, self-applying rule
as evidenced by the discretionary elements which may militate against granting the estoppel. What emerges from the
American experience with the abandonment of mutuality is a twofold concern: (1) the application of the estoppel
must be sufficiently principled and predictable to promote efficiency; and (2) it must contain sufficient flexibility to
prevent unfairness. In my view, this is what the doctrine of abuse of process offers, particularly, as here, where the
issue involves a conviction in a criminal court for a serious crime. In a case such as this one, the true concerns are
not primarily related to mutuality. The true concerns, well reflected in the reasons of the Court of Appeal, are with
the integrity and the coherence of the administration of justice. This will often be the case when the estoppel
originates from a finding made in a criminal case where many of the traditional concerns related to mutuality lose
their significance.

30.       For example, there is little relevance to the concern about the ―wait and see‖ plaintiff, the ―free rider‖ who
will deliberately avoid the risk of joining the original litigation, but will later come forward to reap the benefits of
the victory obtained by the party who should have been his co-plaintiff. No such concern can ever arise when the
original action is in a criminal prosecution. Victims cannot, even if they wanted to, ―join in‖ the prosecution so as to
have their civil claim against the accused disposed of in a single trial. Nor can employers ―join in‖ the criminal
prosecution to have their employee dismissed for cause.

31.       On the other hand, even though no one can join the prosecution, the prosecutor as a party represents the
public interest. He or she represents a collective interest in the just and correct outcome of the case. The prosecutor
is said to be a minister of justice who has nothing to win or lose from the outcome of the case but who must ensure
that a just and true verdict is rendered. (See Law Society of Upper Canada, Rules of Professional Conduct (2000),
Commentary Rule 4.01(3), at p. 61; R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12; Lemay v. The King, [1952] 1
S.C.R. 232, at pp. 256-57, per Cartwright J.; and R. v. Banks, [1916] 2 K.B. 621 (C.C.A.), at p. 623.) The mutuality




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requirement of the doctrine of issue estoppel, which insists that only the Crown and its privies be precluded from
relitigating the guilt of the accused, is hardly reflective of the true role of the prosecutor.

32.       As the present case illustrates, the primary concerns here are about the integrity of the criminal process and
the increased authority of a criminal verdict, rather than some of the more traditional issue estoppel concerns that
focus on the interests of the parties, such as costs and multiple ―vexation‖. For these reasons, I see no need to
reverse or relax the long-standing application of the mutuality requirement in this case and I would conclude that
issue estoppel has no application. I now turn to the question of whether the decision of the arbitrator amounted to a
collateral attack on the verdict of the criminal court.

(2)      Collateral Attack

33.     The rule against collateral attack bars actions to overturn convictions when those actions take place in the
wrong forum. As stated in Wilson v. The Queen, [1983] 2 S.C.R. 594, at p. 599, the rule against collateral attack has
long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding
and conclusive unless it is set aside on appeal or lawfully quashed. It is also well settled in the authorities that such
an order may not be attacked collaterally -- and a collateral attack may be described as an attack made in
proceedings other than those whose specific object is the reversal, variation, or nullification of the order or
judgment.

         Thus, in Wilson, supra, the Court held that an inferior court judge was without jurisdiction to pass on the
validity of a wiretap authorized by a superior court. Other cases that form the basis for this rule similarly involve
attempts to overturn decisions in other fora, and not simply to relitigate their facts. In R. v. Sarson, [1996] 2 S.C.R.
223, at para. 35, this Court held that a prisoner‘s habeas corpus attack on a conviction under a law later declared
unconstitutional must fail under the rule against collateral attack because the prisoner was no longer ―in the system‖
and because he was ―in custody pursuant to the judgment of a court of competent jurisdiction‖. Similarly, in R. v.
Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706, this Court held that a mine owner who had chosen to ignore
an administrative appeals process for a pollution fine was barred from contesting the validity of that fine in court
because the legislation directed appeals to an appellate administrative body, not to the courts. Binnie J. described the
rule against collateral attack in Danyluk, supra, at para. 20, as follows: ―that a judicial order pronounced by a court
of competent jurisdiction should not be brought into question in subsequent proceedings except those provided by
law for the express purpose of attacking it‖ (emphasis added).

34.       Each of these cases concerns the appropriate forum for collateral attacks upon the judgment itself.
However, in the case at bar, the union does not seek to overturn the sexual abuse conviction itself, but simply
contest, for the purposes of a different claim with different legal consequences, whether the conviction was correct.
It is an implicit attack on the correctness of the factual basis of the decision, not a contest about whether that
decision has legal force, as clearly it does. Prohibited ―collateral attacks‖ are abuses of the court‘s process. However,
in light of the focus of the collateral attack rule on attacking the order itself and its legal effect, I believe that the
better approach here is to go directly to the doctrine of abuse of process.

(3)      Abuse of Process

35.       Judges have an inherent and residual discretion to prevent an abuse of the court‘s process. This concept of
abuse of process was described at common law as proceedings ―unfair to the point that they are contrary to the
interest of justice‖ (R. v. Power, [1994] 1 S.C.R. 601, at p. 616), and as ―oppressive treatment‖ (R. v. Conway,
[1989] 1 S.C.R. 1659, at p. 1667). McLachlin J. (as she then was) expressed it this way in R. v. Scott, [1990] 3
S.C.R. 979, at p. 1007:

         . . . abuse of process may be established where: (1) the proceedings are oppressive or vexatious;
         and, (2) violate the fundamental principles of justice underlying the community‘s sense of fair
         play and decency. The concepts of oppressiveness and vexatiousness underline the interest of the
         accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial
         process and the proper administration of justice.




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36.       The doctrine of abuse of process is used in a variety of legal contexts. The unfair or oppressive treatment of
an accused may disentitle the Crown to carry on with the prosecution of a charge: Conway, supra, at p. 1667. In
Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44, this Court held that
unreasonable delay causing serious prejudice could amount to an abuse of process. When the Canadian Charter of
Rights and Freedoms applies, the common law doctrine of abuse of process is subsumed into the principles of the
Charter such that there is often overlap between abuse of process and constitutional remedies (R. v. O‟Connor,
[1995] 4 S.C.R. 411). The doctrine nonetheless continues to have application as a non-Charter remedy: United
States of America v. Shulman, [2001] 1 S.C.R. 616, 2001 SCC 21, at para. 33.

37.      In the context that interests us here, the doctrine of abuse of process engages ―the inherent power of the
court to prevent the misuse of its procedure, in a way that would . . . bring the administration of justice into
disrepute‖ (Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A.,
dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63)). Goudge J.A. expanded on that concept in the following
terms at paras. 55-56:

         The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of
         its procedure, in a way that would be manifestly unfair to a party to the litigation before it or
         would in some other way bring the administration of justice into disrepute. It is a flexible doctrine
         unencumbered by the specific requirements of concepts such as issue estoppel. See House of
         Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.).

         One circumstance in which abuse of process has been applied is where the litigation before the
         court is found to be in essence an attempt to relitigate a claim which the court has already
         determined. [Emphasis added.]

         As Goudge J.A.‘s comments indicate, Canadian courts have applied the doctrine of abuse of
         process to preclude relitigation in circumstances where the strict requirements of issue estoppel
         (typically the privity/mutuality requirements) are not met, but where allowing the litigation to
         proceed would nonetheless violate such principles as judicial economy, consistency, finality and
         the integrity of the administration of justice. (See, for example, Franco v. White (2001), 53 O.R.
         (3d) 391 (C.A.); Bomac Construction Ltd. v. Stevenson, [1986] 5 W.W.R. 21 (Sask. C.A.); and
         Bjarnarson v. Government of Manitoba (1987), 38 D.L.R. (4th) 32 (Man. Q.B.), aff‘d (1987), 21
         C.P.C. (2d) 302 (Man. C.A.).) This has resulted in some criticism, on the ground that the doctrine
         of abuse of process by relitigation is in effect non-mutual issue estoppel by another name without
         the important qualifications recognized by the American courts as part and parcel of the general
         doctrine of non-mutual issue estoppel (Watson, supra, at pp. 624-25).

38.       It is true that the doctrine of abuse of process has been extended beyond the strict parameters of res
judicata while borrowing much of its rationales and some of its constraints. It is said to be more of an adjunct
doctrine, defined in reaction to the settled rules of issue estoppel and cause of action estoppel, than an independent
one (Lange, supra, at p. 344). The policy grounds supporting abuse of process by relitigation are the same as the
essential policy grounds supporting issue estoppel (Lange, supra, at pp. 347-48):

         The two policy grounds, namely, that there be an end to litigation and that no one should be twice
         vexed by the same cause, have been cited as policies in the application of abuse of process by
         relitigation. Other policy grounds have also been cited, namely, to preserve the courts‘ and the
         litigants‘ resources, to uphold the integrity of the legal system in order to avoid inconsistent
         results, and to protect the principle of finality so crucial to the proper administration of justice.

39.       The locus classicus for the modern doctrine of abuse of process and its relationship to res judicata is
Hunter, supra, aff‘g McIlkenny v. Chief Constable of the West Midlands, [1980] Q.B. 283 (C.A.). The case involved
an action for damages for personal injuries brought by the six men convicted of bombing two pubs in Birmingham.
They claimed that they had been beaten by the police during their interrogation. The plaintiffs had raised the same
issue at their criminal trial, where it was found by both the judge and jury that the confessions were voluntary and
that the police had not used violence. At the Court of Appeal, Lord Denning, M.R., endorsed non-mutual issue
estoppel and held that the question of whether any beatings had taken place was estopped by the earlier


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determination, although it was raised here against a different opponent. He noted that in analogous cases, courts had
sometimes refused to allow a party to raise an issue for a second time because it was an ―abuse of the process of the
court‖, but held that the proper characterization of the matter was through non-mutual issue estoppel.

40.      On appeal to the House of Lords, Lord Denning‘s attempt to reform the law of issue estoppel was
overruled, but the higher court reached the same result via the doctrine of abuse of process. Lord Diplock stated, at
p. 541:

         The abuse of process which the instant case exemplifies is the initiation of proceedings in a court
         of justice for the purpose of mounting a collateral attack upon a final decision against the
         intending plaintiff which has been made by another court of competent jurisdiction in previous
         proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the
         court by which it was made.

41.       It is important to note that a public inquiry after the civil action of the six accused in Hunter, supra, resulted
in the finding that the confessions of the Birmingham six had been extracted through police brutality (see R. v.
McIlkenny (1991), 93 Cr. App. R. 287 (C.A.), at pp. 304 et seq.). In my view, this does not support a relaxation of
the existing procedural mechanisms designed to ensure finality in criminal proceedings. The danger of wrongful
convictions has been acknowledged by this Court and other courts (see United States v. Burns, [2001] 1 S.C.R. 283,
2001 SCC 7, at para. 1; and R. v. Bromley (2001), 151 C.C.C. (3d) 480 (Nfld. C.A.), at pp. 517-18). Although
safeguards must be put in place for the protection of the innocent, and, more generally, to ensure the trustworthiness
of court findings, continuous re-litigation is not a guarantee of factual accuracy.

42.       The attraction of the doctrine of abuse of process is that it is unencumbered by the specific requirements of
res judicata while offering the discretion to prevent relitigation, essentially for the purpose of preserving the
integrity of the court‘s process. (See Doherty J.A.‘s reasons, at para. 65; see also Demeter (H.C.), supra, at p. 264,
and Hunter, supra, at p. 536.)

43.       Critics of that approach have argued that when abuse of process is used as a proxy for issue estoppel, it
obscures the true question while adding nothing but a vague sense of discretion. I disagree. At least in the context
before us, namely, an attempt to relitigate a criminal conviction, I believe that abuse of process is a doctrine much
more responsive to the real concerns at play. In all of its applications, the primary focus of the doctrine of abuse of
process is the integrity of the adjudicative functions of courts. Whether it serves to disentitle the Crown from
proceeding because of undue delays (see Blencoe, supra), or whether it prevents a civil party from using the courts
for an improper purpose (see Hunter, supra, and Demeter, supra), the focus is less on the interest of parties and more
on the integrity of judicial decision making as a branch of the administration of justice. In a case such as the present
one, it is that concern that compels a bar against relitigation, more than any sense of unfairness to a party being
called twice to put its case forward, for example. When that is understood, the parameters of the doctrine become
easier to define, and the exercise of discretion is better anchored in principle.

44.      The adjudicative process, and the importance of preserving its integrity, were well described by Doherty
J.A. He said, at para. 74:

         The adjudicative process in its various manifestations strives to do justice. By the adjudicative
         process, I mean the various courts and tribunals to which individuals must resort to settle legal
         disputes. Where the same issues arise in various forums, the quality of justice delivered by the
         adjudicative process is measured not by reference to the isolated result in each forum, but by the
         end result produced by the various processes that address the issue. By justice, I refer to
         procedural fairness, the achieving of the correct result in individual cases and the broader
         perception that the process as a whole achieves results which are consistent, fair and accurate.

45.      When asked to decide whether a criminal conviction, prima facie admissible in a proceeding under s. 22.1
of the Ontario Evidence Act, ought to be rebutted or taken as conclusive, courts will turn to the doctrine of abuse of
process to ascertain whether relitigation would be detrimental to the adjudicative process as defined above. When
the focus is thus properly on the integrity of the adjudicative process, the motive of the party who seeks to relitigate,



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or whether he or she wishes to do so as a defendant rather than as a plaintiff, cannot be decisive factors in the
application of the bar against relitigation.

46.       Thus, in the case at bar, it matters little whether Oliver‘s motive for relitigation was primarily to secure re-
employment, rather than to challenge his criminal conviction in an attempt to undermine its validity. Reliance on
Hunter, supra, and on Demeter (H.C.), supra, for the purpose of enhancing the importance of motive is misplaced. It
is true that in both cases the parties wishing to relitigate had made it clear that they were seeking to impeach their
earlier convictions. But this is of little significance in the application of the doctrine of abuse of process. A desire to
attack a judicial finding is not in itself an improper purpose. The law permits that objective to be pursued through
various reviewing mechanisms such as appeals or judicial review. Indeed reviewability is an important aspect of
finality. A decision is final and binding on the parties only when all available reviews have been exhausted or
abandoned. What is improper is to attempt to impeach a judicial finding by the impermissible route of relitigation in
a different forum. Therefore, motive is of little or no import.

47.       There is also no reason to constrain the doctrine of abuse of process only to those cases where the plaintiff
has initiated the relitigation. The designation of the parties to the second litigation may mask the reality of the
situation. In the present case, for instance, aside from the technical mechanism of the grievance procedures, who
should be viewed as the initiator of the employment litigation between the grievor, Oliver, and his union on the one
hand, and the City of Toronto on the other? Technically, the union is the ―plaintiff‖ in the arbitration procedure. But
the City of Toronto used Oliver‘s criminal conviction as a basis for his dismissal. I cannot see what difference it
makes, again from the point of view of the integrity of the adjudicative process, whether Oliver is labelled a plaintiff
or a defendant when it comes to relitigating his criminal conviction.

48.       The appellant relies on Re Del Core, supra, to suggest that the abuse of process doctrine only applies to
plaintiffs. Re Del Core, however, provided no majority opinion as to whether and when public policy would
preclude relitigation of issues determined in a criminal proceeding. For one, Blair J.A. did not limit the
circumstances in which relitigation would amount to an abuse of process to those cases in which a person convicted
sought to relitigate the validity of his conviction in subsequent proceedings which he himself had instituted (at p.
22):

         The right to challenge a conviction is subject to an important qualification. A convicted person
         cannot attempt to prove that the conviction was wrong in circumstances where it would constitute
         an abuse of process to do so. . . . Courts have rejected attempts to relitigate the very issues dealt
         with at a criminal trial where the civil proceedings were perceived to be a collateral attack on the
         criminal conviction. The ambit of this qualification remains to be determined . . . . [Emphasis
         added.]

49.      While the authorities most often cited in support of a court‘s power to prevent relitigation of decided issues
in circumstances where issue estoppel does not apply are cases where a convicted person commenced a civil
proceeding for the purpose of attacking a finding made in a criminal proceeding against that person (namely
Demeter (H.C.), supra, and Hunter, supra; see also Q. v. Minto Management Ltd. (1984), 46 O.R. (2d) 756 (H.C.),
Franco, supra, at paras. 29-31), there is no reason in principle why these rules should be limited to such specific
circumstances. Several cases have applied the doctrine of abuse of process to preclude defendants from relitigating
issues decided against them in a prior proceeding. ….

50.        It has been argued that it is difficult to see how mounting a defence can be an abuse of process (see M.
Teplitsky, ―Prior Criminal Convictions: Are They Conclusive Proof? An Arbitrator‘s Perspective‖, in K. Whitaker et
al., eds., Labour Arbitration Yearbook 2001-2002 (2002), vol. I, 279). A common justification for the doctrine of res
judicata is that a party should not be twice vexed in the same cause, that is, the party should not be burdened with
having to relitigate the same issue (Watson, supra, at p. 633). Of course, a defendant may be quite pleased to have
another opportunity to litigate an issue originally decided against him. A proper focus on the process, rather than on
the interests of a party, will reveal why relitigation should not be permitted in such a case.

51.       Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the
integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no
assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result


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is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well
as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the
result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the
inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its
authority, its credibility and its aim of finality.

52.       In contrast, proper review by way of appeal increases confidence in the ultimate result and affirms both the
authority of the process as well as the finality of the result. It is therefore apparent that from the system‘s point of
view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that
relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a
whole. There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial
system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence,
previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original
result should not be binding in the new context. This was stated unequivocally by this Court in Danyluk, supra, at
para. 80.

53.       The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or
unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable
result. There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata
or that of abuse of process, would create unfairness. If, for instance, the stakes in the original proceeding were too
minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate
that the administration of justice would be better served by permitting the second proceeding to go forward than by
insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in
appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of
the original decision (Danyluk, supra, at para. 51; Franco, supra, at para. 55).

54.      These considerations are particularly apposite when the attempt is to relitigate a criminal conviction.
Casting doubt over the validity of a criminal conviction is a very serious matter. Inevitably in a case such as this one,
the conclusion of the arbitrator has precisely that effect, whether this was intended or not. The administration of
justice must equip itself with all legitimate means to prevent wrongful convictions and to address any real possibility
of such an occurrence after the fact. Collateral attacks and relitigation, however, are not in my view appropriate
methods of redress since they inordinately tax the adjudicative process while doing nothing to ensure a more
trustworthy result.

55.       In light of the above, it is apparent that the common law doctrines of issue estoppel, collateral attack and
abuse of process adequately capture the concerns that arise when finality in litigation must be balanced against
fairness to a particular litigant. There is therefore no need to endorse, as the Court of Appeal did, a self-standing and
independent ―finality principle‖ either as a separate doctrine or as an independent test to preclude relitigation.

D        Application of Abuse of Process to Facts of the Appeal

56.       I am of the view that the facts in this appeal point to the blatant abuse of process that results when
relitigation of this sort is permitted. The grievor was convicted in a criminal court and he exhausted all his avenues
of appeal. In law, his conviction must stand, with all its consequent legal effects. Yet as pointed out by Doherty J.A.
(at para. 84):

         Despite the arbitrator‘s insistence that he was not passing on the correctness of the decision made
         by Ferguson J., that is exactly what he did. One cannot read the arbitrator‘s reasons without
         coming to the conclusion that he was convinced that the criminal proceedings were badly flawed
         and that Oliver was wrongly convicted. This conclusion, reached in proceedings to which the
         prosecution was not even a party, could only undermine the integrity of the criminal justice
         system. The reasonable observer would wonder how Oliver could be found guilty beyond a
         reasonable doubt in one proceeding and after the Court of Appeal had affirmed that finding, be
         found in a separate proceeding not to have committed the very same assault. That reasonable
         observer would also not understand how Oliver could be found to be properly convicted of
         sexually assaulting the complainant and deserving of 15 months in jail and yet also be found in a


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         separate proceeding not to have committed that sexual assault and to be deserving of reinstatement
         in a job which would place young persons like the complainant under his charge.

57.       As a result of the conflicting decisions, the City of Toronto would find itself in the inevitable position of
having a convicted sex offender reinstated to an employment position where he would work with the very vulnerable
young people he was convicted of assaulting. An educated and reasonable public would presumably have to assess
the likely correctness of one or the other of the adjudicative findings regarding the guilt of the convicted grievor.
The authority and finality of judicial decisions are designed precisely to eliminate the need for such an exercise.

58.       In addition, the arbitrator is considerably less well equipped than a judge presiding over a criminal court --
or the jury --, guided by rules of evidence that are sensitive to a fair search for the truth, an exacting standard of
proof and expertise with the very questions in issue, to come to a correct disposition of the matter. Yet the
arbitrator‘s conclusions, if challenged, may give rise to a less searching standard of review than that of the criminal
court judge. In short, there is nothing in a case like the present one that militates against the application of the
doctrine of abuse of process to bar the relitigation of the grievor‘s criminal conviction. The arbitrator was required
as a matter of law to give full effect to the conviction. As a result of that error of law, the arbitrator reached a
patently unreasonable conclusion. Properly understood in the light of correct legal principles, the evidence before
the arbitrator could only lead him to conclude that the City of Toronto had established just cause for Oliver‘s
dismissal.

VI.      Disposition

59.      For these reasons, I would dismiss the appeal with costs.

         The reasons of LeBel and Deschamps JJ. were delivered by

         LEBEL J. --

I        Introduction

60.       I have had the benefit of reading Arbour J.‘s reasons and I concur with her disposition of the case. I agree
that this case is appropriately decided on the basis of the doctrine of abuse of process, rather than the narrower and
more technical doctrines of either collateral attack or issue estoppel.

                                                       ……….




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                                 Aylsworth v. Richardson Greenshields of Canada Ltd.

British Columbia Supreme Court
Vancouver, British Columbia

Judgment: December 1, 1987

MCEACHERN C.J.S.C.:-

I.       GENERAL

         During the Course Of this Pre-Trial Conference I was reminded of a question asked rhetorically by Vice
Chancellor Megarry at a joint meeting of the British Columbia and Alberta Bar Associations at Jasper, Alberta some
years ago. He enquired, ―Who is the most important person in the courtroom?‖ and he answered by saying that the
person Who is going to lose is the most important person in the courtroom. In normal circumstances I would not
disagree with the obvious wisdom of the learned Vice Chancellor.

          Recent developments in litigation in British Columbia, however, where there has been a subtle change in
the number of cases being settled, commencing in late 1986, causes me to say that there is an equally important
collection of persons notionally present at every trial, and that is the unhappy group of litigants waiting for their day,
week or month at trial. This problem has become acute during the past year where it is not uncommon for there to be
ten or more cases ready for trial with no judge or courtroom available for their case. The Court is accordingly
impelled to do what it can to reduce to a reasonable minimum the time required for every trial and to ensure that
judicial time, which is the critical bottleneck in the management of litigation, is not consumed unwisely.

         That this is an unusual case is demonstrated by the style of cause, by the fact that counsel inform me that
their previous estimate of 2 months as the time required for this trial, commencing on January 18, 1988, must now
be revised to 6 months or more, and by the further fact that on this Pre-Trial Conference there were 35 counsel, of
whom many appeared for Third Parties. Conservatively estimate the solicitor and client costs of the first day of the
Pre-Trial Conference was at least $50,000. There was lesser attendance of counsel on the second day but Mr.
Shapray nevertheless commented that he had not spoken before such a large audience since his bar mitzvah.

          The usual practice, upon it appearing that a trial will take substantially longer than estimated, and will
therefore pre-empt the opportunity of other litigants to have their cases heard, is to take the potentially over holding
case off the list and to require the parties to arrange another date, perhaps a year or more in the future. The situation
in January 1988 is particularly acute because, as I explained to counsel, there are 5 long trials already in progress in
Vancouver which makes it almost impossible for the Court to deliver a reasonable level of judicial service to many
equally deserving litigants.

         In fairness I should say that counsel in some of those long trials have made responsible efforts to reduce the
amount of time required at trial. For example, in the Gitksan case, Plaintiff‘s counsel is seeking to tender the
evidence of 50 witnesses on the issue of boundaries by affidavit, and in the Quintette case the Plaintiff is seeking to
adduce all or most of its evidence in chief by affidavit. But each of these two cases will still take from 6 months to 1
year and Emil Anderson v. B.C. Rail bas been at trial for almost a year.

          I accordingly challenged counsel on this Pre-Trial Conference to suggest measures which might facilitate
this trial as I indicated that it might otherwise be necessary to stand it down. Counsel have made two useful
proposals which I shall mention in a moment.

        First, however, I wish to mention that the litigation difficulties I have just described make it imperative for
counsel and the Court to reconsider some principles which were undoubtedly appropriate in their day when there
was less time and volume pressure in litigation but which cannot always be applied strictly in our present
circumstances. One of these principles was demonstrated by the unwillingness of the Court to make any directions




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which might possibly stand in the way of a perfect trial. This cautious approach was followed by Lord, J. (as he then
was) in B.C. Power Corp. Ltd. v. A.G. of B.C. (1962), 46 W.W.R. 449 at 464-5 where he said:

         ―The removal of an important part of the structure of the plaintiff‘s statement of claim at this stage
         and in a summary manner is not justified. The trial judge, with the whole of the evidence before
         him, will be in a much better position to deal with the matter. I feel that the court should not, in the
         existing circumstances, allow ‗short cuts in the procedural journey of the case through the courts
         [which] might well result in untoward and unexpected delays:‘ Sloan, C.J.B.C. in U.S.A. v.
         Annesley supra, at p. 696. Meredith, C.J. expressed himself in similar terms in Waller v.
         Independent Order of Foresters, supra, when, speaking for the divisional court in Ontario, he said
         at p. 422:

         ‗Experience has shown that seldom, if ever, is any advantage gained by trying some of the issues
         before the trial of others is entered upon ..........‘‖

        This cautious approach has been followed in many cases, but the press of circumstances may be swinging
the pendulum the other way: B.C. Teachers‟ Federation et al. v. A.G. for B.C. et al. (1986), 7 B.C.L.R. (2d) 316
(B.C.C.A.).

          Secondly, if a new approach is required in unusual cases, the Court must not be deterred from doing what
must be done by decisions made or based upon authorities decided in more leisurely days. In the course of argument
in this case I recalled that the longest trial Sir Edward Marshall Hall ever appeared in was 10 days: Famous Trials of
Marshall Hall, Edward Marjoribanks, Penguin Books No. 778, 1950, demonstrating that times have indeed changed.

          I intend no violence to the principle of stare decisis as most authoritatively stated by Wilson, J. (as he then
was) in Re Hansard Spruce Mills Ltd. (1954), 13 W.W.R. (NS) 285 (B.C.S.C.), but the Court cannot be governed by
authorities decided in a totally different context.

II.      THE ACTION

         The Plaintiffs are trustees of a group of mutual funds resident in the United States. The Statement of Claim
alleges that the Defendants Carter, Sr. and Ward, with the concurrence and cooperation or assistance of Carter, Jr.
and possibly his employer, Richardson Greenshields (―Richardson‖), ran up the price of a number of companies
promoted by Carter, Sr. and Ward on the Vancouver Stock Exchange and then, or contemporaneously, some or all
of them and others bribed one of the investment managers of one of the Plaintiffs‘ funds and ―blew off‖ about $20
million in worthless stock to one of the funds through the agency of Richardson and some other brokers.

          As I understand the Plaintiffs‘ case it is that these Defendants and some of their associates are liable to the
Plaintiffs in conspiracy, bribery, fraud, negligence and other causes of action. The Plaintiffs have not sued the other
brokers. Instead the Plaintiffs allege that the losses caused to the Plaintiffs through the agency of the other brokers
was part of the consequences of the wrongdoing of the Defendants.

III.     THE PARTIES

         As I have said, the Plaintiffs are the trustees of the victim. They are represented by Mr. Shapray.

         The Defendants are Carter, Sr., Ward and their associates, the companies they promoted, Carter, Jr. and his
employer Richardson. As I understand the case, the attack against Richardson is not based just on the respondent
superior principle but also upon Richardson‘s alleged knowing participation in some of the wrongdoing of other
defendants. At the risk of over-simplification, it appears to me that Richardson, represented by Mr. Brock, is allied
closely in the defence of this action with Mr. McAlpine, representing Carter, Jr.

         The Third Parties were all brought into this action by Richardson. They fall into various categories which I
shall endeavour to describe in a very general way as follows:




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         (a)         the Plaintiffs‘ investment advisor and its principals, represented by Mr. Berardino who is
                     allied closely in the conduct of the case with Mr. Shapray

         (b)         the Defendant companies whose shares were ―blown off‖ to the Plaintiffs;

         (c)         7 other brokers who processed the acquisition by the Plaintiffs of about $2 million in
                     worthless shares out of about $20 million of the Plaintiffs‘ alleged loss;

         (d)         7 insurers against whom Richardson claims to be indemnified either as a primary or
                     excess insurer or under one or more fidelity bonds.

IV.      TRIAL OF THE THIRD PARTY ISSUES

         It is apparent that the trial of the Third Party issues, except those relating to Mr. Berardino‘s clients, will
complicate and add to the length of the trial. Without those issues the action will be difficult enough, but it would be
confined to the contest between Plaintiffs and Defendants and will exclude the issues between Richardson and its
various insurers which are of no legal interest to any other parties.

         There is no doubt, according to the submissions of many counsel, that the severance of the Third Party
issues will shorten the length of trial significantly.

        Jurisdiction to order trial without the Third Party issues is found in the Court‘s inherent power to control its
own process reasonably and in Rule 22(13) which provides:

         ― The issue between the defendant and the third party may be tried at such time as the court may
         direct.‖

         There is another0 principle which bears upon this question arising from Rule 22(12) which
         provides:

         ― A plaintiff should not be prejudiced or unnecessarily delayed by third party proceedings, and the
         court may impose terms to prevent prejudice or delay.‖

          I have no doubt the trial of the Third Party issues at trial will prejudice or unnecessarily delay the Plaintiffs
in the prosecution of their claim because, as I have said, it would not be fair to allow this trial to proceed on the
anticipated trial date with an escalated estimate of trial length from 2 - 6 months or more unless every reasonable
effort is made to control the length of the trial.

          I conclude, therefore, that the trial of the Third Party proceedings, except those against Mr. Berardino‘s
clients, must be tried after the trial of the issues between Plaintiffs and Defendants. I pause to add that all parties
seem agreed that Mr. Berardino‘s clients must be at the trial.

         The question remains whether the other Third Parties should be bound by the determination of the issues
between Plaintiffs and Defendants. If they are to be bound then they must have leave to appear at the trial and
defend the Plaintiffs‘ claims against the Defendants.

         Mr. Brock argues strongly that great harm will accrue to Richardson if the Third Parties are not before the
Court at the trial, that the same issues may have to be tried again, that there may be inconsistent findings and that
Richardson may be exposed to execution before it is able to get to trial on its claims over.

          There may be adversarial advantages to Richardson in having all issues tried together, but I do not agree
that there will be unfair prejudice. First, I accept Mr. Roberts‘ analysis of the Leischner case. Richardson, in my
view, will not be deprived of any lawful deduction to which it may be entitled arising out of contributory negligence
or other conduct on behalf of the Plaintiffs or those for whom the Plaintiffs are responsible. Such deduction, if any,
will be a matter of defence which can be litigated at the trial.



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          Secondly, it may indeed be necessary for the same issues to be tried a second time, but I regard that
possibility as a remote one because most responsible litigants will accept the result of the trial and anyone who acts
unreasonably in this connection may be visited with a liability for solicitor and own client costs.

          Thirdly, the risk of inconsistent verdicts will be minimized by having the same judge preside at both the
trial and the Third Party issues, and there need be no undue delay between the two proceedings. It is true that
different evidence could lead to different results, but the intensity with which the facts and law in this case are being
investigated makes surprises highly unlikely.

         Lastly, prejudice to Richardson through execution on a judgment, if any, before the trial of the Third Party
issues can be controlled by a stay of execution with or without security in proper circumstances. I would not
presume to prejudge that question, however, because the evidence at trial will indicate whether execution on any
judgment should or should not be stayed.

        My attention was directed to the interlocutory judgment of Finch, J. in this action dated November 13, 1987
where, on an application to strike out a Third Party notice against one of the insurers, and to sever the Third Party
proceedings, that learned judge ruled against both applications and said:

         ―For the same reasons I decline to order severance of these third party proceedings from the trial
         of the main action. This will not preclude the trial judge from making any other directions which
         may be necessary for the trial of this complicated lawsuit. In my view, however, practicality
         requires that these third parties be bound by whatever findings of fact are made in the trial of the
         main action, insofar as those findings are relevant to the issues in the third party proceedings.‖

         With the greatest possible respect to that learned judge, I do not consider myself bound by that decision for
the reasons I endeavoured to state earlier. Finch, J. on that application was only concerned with one Third Party
notice and not with the length of the trial. He may well have ordered otherwise if he had been dealing with the
broader issues I have been considering.

           My further conclusion, therefore, is that the Third Parties should not be bound by the results of the trial and
there will be no need for them to appear at or take part in the trial although I would not preclude them from applying
at the trial to take such part as the trial judge may permit.

          There was some further discussion at the Pre-Trial Conference about a Settlement Conference. As I
mentioned, the Court stands ready to assist in this connection, but Settlement Conferences are not helpful unless a
sufficient number of significant parties are disposed towards settlement. It is not necessary that there be unanimity
but the principal players must be prepared to compromise and there is no room at the settlement table for positional
orientation. Assuming a result orientation so necessary for successful mediation, counsel are invited to communicate
with me about a Settlement Conference or, regardless of the foregoing, about a further Pre-Trial Conference if a
sufficient group of remaining parties wishes a further conference to be convened.




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                                                                                               WEEK 9: Rumley


                                                         Rumley v. British Columbia

Supreme Court Of Canada
Reasons delivered: October 18, 2001


ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

1.        THE CHIEF JUSTICE -- Like Hollick v. Toronto (City), [2001] 3 S.C.R. 158, 2001 SCC 68, this case
raises the question of whether the plaintiffs below (respondents here) meet the certification requirements set out in
provincial class action legislation. In this case the respondents seek to represent current and former students who
were abused at the Jericho Hill School, a residential school for the deaf and blind operated by the province of British
Columbia. At the end of the hearing, the Court concluded that the respondents had satisfied the certification
requirements set out in s. 4 of the British Columbia Class Proceedings Act, R.S.B.C. 1996, c. 50, and dismissed the
appeal, reasons to follow. These are those reasons.

I.       Facts

2.        From the early 1950s until 1992, Jericho Hill School (―JHS‖) operated as a residential school for deaf
children. Until 1979, the school also enrolled blind children. Whereas most schools in British Columbia are
managed by district school boards, JHS was a ―provincial school‖ under British Columbia‘s governing legislation,
currently the School Act, R.S.B.C. 1996, c. 412, and was operated and maintained by British Columbia‘s Ministry of
Education. It is now clear that sexual and physical abuse of children took place at the school throughout its history.
The first thorough investigation of abuse at the school was conducted by the British Columbia Ombudsman in 1992.
His report, issued in 1993, concluded that sexual, physical and emotional abuse of students by staff and peers
occurred over a period of many years. In response to the Ombudsman‘s report and to lawsuits initiated against the
province after the report was issued, the Attorney General appointed Thomas Berger, Q.C., as special counsel.
Berger‘s report was issued in March 1995. The Berger report concluded that ―sexual abuse was at times widespread
at the residence at Jericho Hill School, and . . . it went on over a period of many years‖ (p. 14).

3.       The findings of the Berger report are disturbing, to say the least. Berger interviewed 35 students who were
at JHS in the 1950s, 1960s, 1970s, and 1980s. He found that ―[m]any of these persons allege[d] that they were
sexually abused or witnessed sexual abuse by staff or other students‖ (p. 13). Berger focussed principally on abuse
that took place after 1980. According to the Berger report, two male students complained separately about abuse at
the school in the early 1980s. The first complained that he had been sexually abused by a female child care
counsellor and that students at the school were encouraged and even forced to have sex with one another; the second
alleged that two male child care counsellors had abused him. After the second complaint, a social worker with the
Ministry of Human Resources conducted interviews with a number of boys resident at the school. Some of the boys
admitted having abused girls at the school, some as young as seven years old. The boys also alleged that they had
been abused by two male child care counsellors.

4.        According to the Berger report, there is compelling evidence that abuse was rampant throughout the 1980s.
Some of the abuse took place at the residence associated with the school, but there were also indications of abuse in
a group home run by a psychologist hired by JHS in 1983. In 1984 one student at the group home stabbed another to
death. At the subsequent trial, the judge expressed concern about the adequacy of supervision in the group home,
stating that the accused ―was receiving what I can only characterize as the most inappropriate form of care and
guidance in that foster home‖. In 1986 one of the male students at JHS who had resided in the group home
committed suicide after sexually abusing his niece at home.

5.       The Berger report speaks separately about the period between 1987 and 1990. In January 1987 the student
who had brought the first complaint in the early 1980s attempted suicide after abusing his younger siblings. After his
suicide attempt, the student repeated his allegation of abuse at the hands of a female counsellor. He also admitted
that he and other boys had abused elementary-age girls at the school. Around the same time, another male student
was arrested for molesting a young boy. He stated that he himself had been abused by a child care worker at JHS



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and stated that he had engaged in sexual activity with boys and girls at the residence. He listed ten female students
whom he had sexually abused and named three other boys who he said had abused female students. After these new
allegations, the Ministries of Education and Social Services conducted an investigation, interviewing some 35
students beginning in early 1987. The students interviewed provided names of other children who they said had been
forced to have sex or had forced others to have sex. One member of the investigative team, in reviewing the
findings, identified ―a pervasive culture at the residence that required students to submit to a sexual rite of passage if
they were to successfully cohabit with their peers‖.

6.        The Berger report did not go into detail about individual cases; its principal goal was to determine the
prevalence of abuse at the school, not to determine whether any particular resident had been abused. The report
stated (at p. 14):

         I make no findings here regarding individual cases. I am instead confining myself to stating my
         finding, applying generally to the state of affairs at Jericho Hill School, that from the 1950s,
         extending over about a 35-year period, there was sexual abuse by some child care staff, sexual
         abuse by some older children against younger children, and that some of these younger children
         (once they became senior students) sexually abused new entrants.

         The case histories can be shocking. There is no need to go into them in detail. But they do indicate
         that sexual abuse at the school may not entirely have come to an end even in 1987. One former
         student states that she was assaulted by a female child care worker from 1981 to 1990. Another
         former student states she was sexually assaulted many times, from 1980 to 1991. It remains to be
         seen whether these particular allegations will be made out, but they do indicate that the possibility
         of incidents of sexual abuse even after 1987 cannot be dismissed.

         In this report I do not go into detail about individual cases. . . . I am not . . . engaged in
         determining the impact of abuse in any individual case, but rather setting out the whole picture.

7.        The Berger report found that JHS‘s response to allegations of abuse was often inadequate, noting, for
example, that ―[e]xcept in a few cases, Jericho Hill School failed to report the disclosures to the parents of the boys
or the girls, failed to identify the student offenders and to remove them from the school, and failed to ensure that the
students who had been abused received appropriate therapy‖ (p. 9). The report found that ―[a]lthough it had
responsibility for the management of the school, the Ministry of Education had no policies and procedures laid down
for running a residence for deaf children‖ (p. 15). It also noted that in 1978, all students -- boys and girls of all ages -
- were placed together in a single dormitory and observed that ―[i]t is certainly arguable that these arrangements
were not in keeping with reasonable standards of care at the time‖ (p. 16).

8.        The Berger report also emphasized the exceptional vulnerability of the children at the school. The report
stated (at p. 7):

         [T]he vulnerability of the children at Jericho Hill School was the product of their failure to acquire
         language early; this meant that they did not have values instilled in them in the same way as
         hearing children do; it often meant increased vulnerability to any staff at the school who may have
         been disposed to abuse the children; it meant that the institution was more susceptible to the
         development of a culture of abuse; and it meant that the children usually did not have the ability or
         the means to communicate with or complain effectively to parents, teachers, physicians, police or
         social workers about sexual abuse.

9.        The recommendations of the Berger report were that the province accept responsibility for the abuse that
occurred at JHS; that the province establish a scheme to compensate those who had suffered abuse at the school; and
that the compensation scheme should award compensation, for those claims accepted, in three tiers, with a minimum
of $3,000 and a maximum of $60,000.

10.     The government responded to the Berger report by acknowledging responsibility for abuse that occurred at
JHS. In a ministerial statement made in June 1995, the Attorney General acknowledged the allegations of sexual



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abuse at the school, acknowledged that ―[t]he province was responsible for the care and well-being of these people
when they were children‖, and stated that ―[t]o the extent that the province failed them, [it] must see that they are
now compensated‖. The province also established the Jericho Individual Compensation Program (JICP), which is
structured according to the recommendations of the Berger report. The program is open to students and former
students who allege abuse as a result of attending or having attended the school, and provides for awards according
to the three-tier system. As of March 31, 1998, the JICP had heard 49 claims.

11.    The respondents commenced this action in January 1998. The suit seeks compensatory and punitive
damages on behalf of a class consisting of:

          all current and former JHS students who have suffered abuse or who failed to receive a proper education
           while students of the school;

          all family members of current or former JHS students who suffered damage as a result of the abuse of a
           JHS student;

          all family members or others who were themselves abused by current or former JHS students as a result of
           the prior abuse of the JHS student.

The respondents asserted that the following issues are common to the class:

          whether the defendant breached the standard of care it owed to the plaintiffs between 1950 and 1992;

          whether the defendant made negligent, reckless and/or fraudulent misrepresentations regarding the school;

          whether the defendant‘s conduct justified an award of punitive damages and, if so, what amount of punitive
           damages is appropriate.

        (Initially the respondents also asserted that vicarious liability constituted a common issue, but the
respondents abandoned their vicarious liability argument early in the proceedings.)

12.       The only issue on this appeal is whether the respondents have satisfied the class certification requirements
set out in s. 4 of British Columbia‘s Class Proceedings Act.

                                                             ...

III.       Legislation

           23. Class Proceedings Act, R.S.B.C. 1996, c. 50

                     (4)(1)The court must certify a proceeding as a class proceeding on an application under section 2
                     or 3 if all of the following requirements are met:

                     (a) the pleadings disclose a cause of action;

                     (b) there is an identifiable class of 2 or more persons;

                     (c) the claims of the class members raise common issues, whether or not those common issues
                     predominate over issues affecting only individual members;

                     (d) a class proceeding would be the preferable procedure for the fair and efficient resolution of the
                     common issues;

                                                             ...




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                     (2) In determining whether a class proceeding would be the preferable procedure for the fair and
                     efficient resolution of the common issues, the court must consider all relevant matters including
                     the following:

                     (a) whether questions of fact or law common to the members of the class predominate over any
                     questions affecting only individual members;

                     (b) whether a significant number of the members of the class have a valid interest in individually
                     controlling the prosecution of separate actions;

                     (c) whether the class proceeding would involve claims that are or have been the subject of any
                     other proceedings;

                     (d) whether other means of resolving the claims are less practical or less efficient;

                     (e) whether the administration of the class proceeding would create greater difficulties than those
                     likely to be experienced if relief were sought by other means.

7.       The court must not refuse to certify a proceeding as a class proceeding merely because of one or more of
the following:

                     (a) the relief claimed includes a claim for damages that would require individual assessment after
                     determination of the common issues;

                     (b) the relief claimed relates to separate contracts involving different class members;

                     (c) different remedies are sought for different class members;

                     (d) the number of class members or the identity of each class member is not known;

                     (e) the class includes a subclass whose members have claims that raise common issues not shared
                     by all class members.

IV.      Issues

24.     Have the respondents satisfied the certification requirements set out in British Columbia‘s Class
Proceedings Act?

V.       Analysis

25.       The only issue in this case is whether the Court of Appeal erred in granting certification. As the
respondents do not cross-appeal from the decision of Mackenzie J.A., we need not consider whether certification
could have been granted on a broader basis than was recognized by the Court of Appeal. The only question is
whether, given the Court of Appeal‘s redefinition of the class and common issues, the certification requirements
were met. Those requirements are set out in s. 4 of the British Columbia Class Proceedings Act and are similar to
the certification requirements set out in Ontario‘s class action legislation, which I discuss at some length in Hollick.
These reasons discuss the specifics of the British Columbia certification requirements only insofar as they differ
materially from those set out in s. 5 of the Ontario Class Proceedings Act, 1992, S.O. 1992, c. 6, and only to the
extent that those differences bear directly on my analysis in this case.

26.     Not all of the certification requirements are at issue on this appeal. The appellant does not dispute that the
respondents have met the requirements of s. 4(1)(a), (b), and (e) -- that is, the appellant does not dispute that the
pleadings disclose a cause of action, that the respondents have stated an identifiable class, and that the respondents
would serve as satisfactory representatives of the class. The issues in dispute are whether there are questions




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common to the class, as required by s. 4(1)(c), and whether a class proceeding would be the preferable procedure for
the fair and efficient resolution of the common issues, as required by s. 4(1)(d).

27.      In my view, both the commonality and preferability requirements are satisfied in this case. With regard to
commonality, I agree with Mackenzie J.A. that all class members share an interest in the question of whether the
appellant breached a duty of care. On claims of negligence and breach of fiduciary duty, no class member can
prevail without showing duty and breach. Resolving those issues, therefore, is ―necessary to the resolution of each
class member‘s claim‖: Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534, 2001 SCC 46, at
para. 39. Accordingly I would conclude that Mackenzie J.A. was correct to find that the issues of duty and breach
are common to the class.

28.      The appellant concedes that none of the class members can prevail without showing that the appellant‘s
conduct fell below an acceptable standard, but contends that the nature of the required showing is inescapably
individualistic and not amenable to resolution in general terms applicable to all class members. The appellant does
not dispute Mackenzie J.A.‘s statement that the ―duty of the school to reasonably protect its students from sexual
abuse is clear and immutable throughout the period that the school was in operation‖ (p. 8). However in the
appellant‘s view, ―[t]he result of this litigation depends not on the definition of the standard of care, but rather the
application of that standard to the facts found in respect of the circumstances of each claimant‖ (appellant‘s factum,
at para. 64 (emphasis in original)). The appellant argues that in this case ―[l]iability turns not on the breach of a
standard of care in the abstract, but on whether the standard of care was breached with respect to the school‘s
supervision of the particular class member in a way that contributed materially to his/her abuse‖ (appellant‘s factum,
at para. 64). The theory of the appellant is essentially that the Court of Appeal was able to find a common issue
within the meaning of s. 4(1)(c) only by framing the commonality between the class members in overly general
terms.

29.       There is clearly something to the appellant‘s argument that a court should avoid framing commonality
between class members in overly broad terms. As I discussed in Western Canadian Shopping Centres, supra, at para.
39, the guiding question should be the practical one of ―whether allowing the suit to proceed as a representative one
will avoid duplication of fact-finding or legal analysis‖. It would not serve the ends of either fairness or efficiency to
certify an action on the basis of issues that are common only when stated in the most general terms. Inevitably such
an action would ultimately break down into individual proceedings. That the suit had initially been certified as a
class action could only make the proceeding less fair and less efficient.

30.      I cannot agree, however, that such are the circumstances here. As Mackenzie J.A. noted, the respondents‘
argument is based on an allegation of ―systemic‖ negligence -- ―the failure to have in place management and
operations procedures that would reasonably have prevented the abuse‖ (pp. 8-9). The respondents assert, for
example, that JHS did not have policies in place to deal with abuse, and that JHS acted negligently by placing all
residential students in one dormitory in 1978. These are actions (or omissions) whose reasonability can be
determined without reference to the circumstances of any individual class member. It is true that the respondents‘
election to limit their allegations to systemic negligence may make the individual component of the proceedings
more difficult; clearly it would be easier for any given complainant to show causation if the established breach were
that JHS had failed to address her own complaint of abuse (an individualized breach) than it would be if, for
example, the established breach were that JHS had as a general matter failed to respond adequately to some
complaints (a ―systemic‖ breach). As Mackenzie J.A. wrote, however, the respondents ―are entitled to restrict the
grounds of negligence they wish to advance to make the case more amenable to class proceedings if they choose to
do so‖ (p. 9).

31.       In arguing that the necessary inquiry is inescapably individualistic, the appellant‘s principal contention is
that the relevant standard of care, if framed at the appropriate level of specificity, would have varied over time. I am
not persuaded that this should be an obstacle to the suit‘s proceeding as a class action. It is true that there has been a
―dramatic . . . evolution‖ in law relating to sexual abuse between 1950 and 1992 and it is quite possible that the
nature of a school‘s obligations to its students has changed over time. However, courts have often allowed class
actions to proceed in similar circumstances: see, e.g., Anderson v. Wilson (1999), 44 O.R. (3d) 673 (C.A.) (certifying
class action for medical malpractice even though the action ―concern[ed] allegations of a general practice over a
number of years falling below acceptable standards‖ (p. 683)); Chace v. Crane Canada Inc. (1996), 26 B.C.L.R.
(3d) 339 (S.C.) (certifying class action for negligent manufacture and sale over 11-year period on grounds that, if the


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defendant were ―partially successful in its defence and ultimately found to have been negligent over part of the
period only, that result c[ould] be accommodated in the answer to the general question‖ (p. 347)); Endean v.
Canadian Red Cross Society (1997), 148 D.L.R. (4th) 158 (B.C.S.C.) (certifying class action for negligence and
spoliation over four-year period notwithstanding defendant‘s argument that ―the standard of care would have been in
flux throughout the material time‖ (p. 168)).

32.       That the standard of care may have varied over the relevant time period simply means that the court may
find it necessary to provide a nuanced answer to the common question. The structure of the Berger report, which
explicitly divides the years between 1982 and 1991 into three discrete subperiods, suggests that such an approach
would not be infeasible. I further note that the Class Proceedings Act contemplates the possibility of subclasses and
that the court may amend the certification order at any time: see s. 6(1) (permitting court to recognize subclasses
under certain conditions); s. 7(e) (stating that the court ―must not refuse to certify a proceeding as a class proceeding
merely because . . . the class includes a subclass whose members have claims that raise common issues not shared
by all class members‖); s. 8(3) (stating that ―[t]he court, on the application of a party or class member, may at any
time amend a certification order‖); s. 10(1) (stating that ―[w]ithout limiting section 8(3), at any time after a
certification order is made . . . the court may amend the certification order‖). In my view the Class Proceedings Act
provides the court with ample flexibility to deal with limited differentiation amongst the class members as and if
such differentiation becomes evident.

33.     As the Court of Appeal noted (at p. 9), it is in fact quite likely that there will be relevant differences
between the class members:

         Limiting the ground of liability to systemic negligence does not eliminate all differences among
         class members. As the Berger report noted, the duty owed may vary over time depending upon the
         state of knowledge of those in charge of the school, the reasonably informed educational standards
         and policies of the day, the measures implemented to prevent abuse and other factors. At the end
         of the case, liability could be imposed for abuse during certain periods of the school‘s operation
         and not in others. It is conceivable that liability might be differentiated in other ways, for example
         abuse inflicted by staff but not by other students.

         For the reasons stated above, however, I agree with Mackenzie J.A. that these differences are not
         insurmountable. In any event I question the extent to which differences between the class
         members should be taken into account at this stage. The British Columbia Class Proceedings Act
         explicitly states that the commonality requirement may be satisfied ―whether or not [the] common
         issues predominate over issues affecting only individual members‖: s. 4(1)(c). (This distinguishes
         the British Columbia legislation from the corresponding Ontario legislation, which is silent as to
         whether predominance should be a factor in the commonality inquiry.) While the British
         Columbia Class Proceedings Act clearly contemplates that predominance will be a factor in the
         preferability inquiry (a point to which I will return below), it makes equally clear that
         predominance should not be a factor at the commonality stage. In my view the question at the
         commonality stage is, at least under the British Columbia Class Proceedings Act, quite narrow.

         As noted above, Mackenzie J.A. certified as common not only the standard-of-care issue but also
         the punitive damages issues. Here, too, I agree with his reasoning. In this case resolving the
         primary common issue -- whether JHS breached a duty of care or fiduciary duty to the
         complainants -- will require the court to assess the knowledge and conduct of those in charge of
         JHS over a long period of time. This is exactly the kind of fact-finding that will be necessary to
         determine whether punitive damages are justified: see, e.g., Endean, supra, at para. 48 (―An award
         of punitive damages is founded on the conduct of the defendant, unrelated to its effect on the
         plaintiff.‖). Clearly, the appropriateness and amount of punitive damages will not always be
         amenable to determination as a common issue. Here, however, the respondents have limited the
         possible grounds of liability to systemic negligence -- that is, negligence not specific to any one
         victim but rather to the class of victims as a group. In my view the appropriateness and amount of
         punitive damages is, in this case, a question amenable to resolution as a common issue: see Chace,
         supra, at para. 30 (certifying punitive damages as a common issue on the grounds that the




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         plaintiffs‘ negligence claim was ―advance[d] . . . as a general proposition‖ rather than by reference
         to conduct specific to any one plaintiff).

34.       The question remains whether a class action would be the preferable procedure. Here I would begin by
incorporating my discussion in Hollick as to the meaning of preferability: see Hollick, supra, at paras. 28-31. While
the legislative history of the British Columbia Class Proceedings Act is of course different from that of the
corresponding Ontario legislation, in my view the preferability inquiry is, at least in general terms, the same under
each statute. The inquiry is directed at two questions: first, ―whether or not the class proceeding [would be] a fair,
efficient and manageable method of advancing the claim‖, and second, whether the class proceedings would be
preferable ―in the sense of preferable to other procedures‖ (Hollick, at para. 28). I would note one difference,
however, between the British Columbia Class Proceedings Act and the corresponding Ontario legislation. Like the
British Columbia legislation, the Ontario legislation requires that a class action be ―the preferable procedure‖ for the
resolution of the common issues: see Ontario Class Proceedings Act, 1992, s. 5(1)(d); British Columbia Class
Proceedings Act, s. 4(1)(d). Unlike the Ontario legislation, however, the British Columbia legislation provides
express guidance as to how a court should approach the preferability question, listing five factors that the court must
consider: see s. 4(2). I turn, now, to these factors.

35.      The first factor is ―whether questions of fact or law common to the members of the class predominate over
any questions affecting only individual members‖: s. 4(2)(a). As I noted above, it seems likely that there will be
relevant differences between class members here. It should be remembered, however, that as the respondents have
limited their claims to claims of ―systemic‖ negligence, the central issues in this suit will be the nature of the duty
owed by JHS to the class members and whether that duty was breached. Those issues are amenable to resolution in a
class proceeding. While the issues of injury and causation will have to be litigated in individual proceedings
following resolution of the common issue (assuming the common issue is decided in favour of the class, or at least
in favour of some segment of the class), in my view the individual issues will be a relatively minor aspect of this
case. There is no dispute that abuse occurred at the school. The essential question is whether the school should have
prevented the abuse or responded to it differently. I would conclude that the common issues predominate over those
affecting only individual class members.

36.      The second factor is ―whether a significant number of the members of the class have a valid interest in
individually controlling the prosecution of separate actions‖, and the third is ―whether the class proceeding would
involve claims that are or have been the subject of any other proceedings‖: s. 4(2)(b), (c). On these factors I would
note again that no class member will be able to prevail without making an individual showing of injury and
causation. Thus it cannot be said that allowing this suit to proceed as a class action will force complainants into a
passive role. Each class member will retain control over his or her individual action, and his or her ultimate recovery
will be determined by the outcome of the individual proceedings on injury and causation (assuming, again, that the
common issue is resolved in favour of the class). Further there is little evidence here to suggest that any significant
number of class members would prefer to proceed individually.

37.       I turn next to the fourth factor, which asks ―whether other means of resolving the claims are less practical
or less efficient‖: s. 4(2)(d). On this point I would agree with the Court of Appeal that individual actions would be
less practical and less efficient than would be a class proceeding. As Mackenzie J.A. noted (at pp. 9-10), ―[i]ssues
related to policy and administration of the school, qualification and training of staff, dormitory conditions and so on
are likely to have common elements‖. Further, ―[t]he overall history and evolution of the school is likely to be
important background for the claims generally and it would be needlessly expensive to require proof in separate
individual cases‖ (p. 10). I would also agree with Mackenzie J.A. (and indeed with Kirkpatrick J.) that the JICP does
not provide an adequate alternative to a class action. Amongst other limitations, the JICP program limits the
recovery of any one complainant to $60,000, and it does not permit complainants to be represented by counsel
before the panel. The JICP simply cannot be said to be an adequate alternative to a class proceeding.

38.       The final factor is ―whether the administration of the class proceeding would create greater difficulties than
those likely to be experienced if relief were sought by other means‖: s. 4(2)(e). On this point it is necessary to
emphasize the particular vulnerability of the plaintiffs in this case. The individual class members are deaf or blind or
both. Litigation is always a difficult process but I am convinced that it will be extraordinarily so for the class
members here. Allowing the suit to proceed as a class action may go some way toward mitigating the difficulties
that will be faced by the class members. I am in full agreement, therefore, with Mackenzie J.A.‘s conclusion that


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―[t]he communications barriers faced by the students both at the time of the assaults alleged and currently in the
litigation process favour a common process to explain the significance of those barriers and to elicit relevant
evidence.‖ As he wrote, ―[a] group action should assist in marshalling the expertise required to assist individual
students in communicating their testimony effectively‖ (p. 9).

39.    I conclude that the respondents have satisfied the certification requirements set out in s. 4 of the British
Columbia Class Proceedings Act.

40.      The appeal is dismissed. The respondents shall have costs throughout.

41.      Appeal dismissed with costs.




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