CIVIL PROCEDURE OUTLINE 2005-2006 – WALSH

JC 1 CIVIL PROCEDURE OUTLINE 2005-2006 – WALSH OVERVIEW General principle: liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits 1.04(3) Self-represented – anything rules permit or require a lawyer to do shall or may be done by party CASE: Bergen v. Manitoba Liberal construction not the same thing as ignoring the rules altogether QBR apply as much to invididual representing self as to a lawyer COMMENCING AN ACTION QBR 5, 13, 14 Basic order of action: Statement of Claim, Statement of Defence, Discovery, Pre-trial Conference <$7500, general damages <$1500 Small Claims Rule 76 only applicable QBR Statutory authority – Small Claims Practices Act <$50K Expedited Action – Rule 20A Case conference, judge Have to indicate in style of cause JOINING CLAIMS/PARTIES 5.01(2) Different capacities in same proceeding 5.01(3) Don’t have to be part of same COA, don’t have to have interest in all claims 5.02(1) Multiple plaintiffs/applicants – reasons 5.02(2) Multiple defendants/respondents – reasons 5.03(1) All necessary parties SHALL be joined (mandatory) 5.05 Relief against joinder – undue complication/delay, undue prejudice to a party CASE: Save the Eatons Building Coalition v. Winnipeg Application Parties: coalition and city (applicant and respondent) True North wanted in as respondent under 5.03(3) OR as intervenor under 13.01(1) 5.03(3) NARROW construction Not enough to want a party to win, unneccesary parties should not be joined Direct legal interest ≠ financial/commercial interest Being affected by outcome not enough for 5.03(3) 13.01(1) broader – interest can be public (over and above that of general public) Submissions must be different from other parties and useful CASE: Gilbart v. Ventura Custom Homes 5.05 – relief against joinder (unduly complicate/delay/cause undue prejudice) 29.09 – court has right to sever if prejudice or unnecessary delay Balancing of procedural rights INTERVENTION Intervention as added party – interest in subject matter, may be adversely affected by judgment, question of law/fact 13.01(1) between person and party in common with a question in issue in proceeding 13.01(2) Court will consider delay/prejudice, may order pleadings and discovery 13.02 Intervention as friend of the court, render assistance by way of argument CASE: Save the Eatons Building Coalition 13.01(3) broader than 5.03(3) No additional or different perspective Commercial interest does not warrant being added as an intervenor CASE: Sawatzky v. Riverview Health Centre Different perspective of MLPD (broader perspective of people with disabilities) Intervening as a party under 13.01, wanted in at trial level Not limited to direct financial or legal interest in outcome Consider: i) nature of case ii) issues arising iii) useful contribution to resolution of appeal without causing injustice to parties? Re: useful contribution: a) real, substantial and identifiable interest b) important and distinct perspective c) well-recognized group with special expertise and broad and identifiable membership base COMMENCEMENT OF PROCEEDINGS 14.01(1) File document with registrar 14.03 Action – SOC (with exceptions) 14.05 Application – notice of application DRAFTING PLEADINGS QBR 25-29 Statement of Claim Statement of Defence Reply Pleadings Statement of Defence and Counterclaim Statement of Defence and Crossclaim Third Party Notice 1.04(1) JC 2 ALL PLEADINGS 25.02 Consecutively numbered paragraphs, allegations in separate paragraphs 25.05 Close of pleadings – closed when all replies filed or time expired OR all defendants in default noted in default 25.06(1) Plead material facts, not evidence 25.06(4) Plead statute relied on 25.06(6) Inconsistent allegations ok but plead in the alternative 25.06(7) Cannot plead new/inconsistent claims in an amendment 25.06(13), (14) Prayer for relief – general damages, special damages, declaration, punitive, etc. CASE: Miller v. Jaguar Need for “accurate and timely pleadings” DEFENCES 25.07(1) Admit facts not in dispute 25.07(2) Allegations not denied deemed to be admitted unless no knowledge pleaded 25.07(3) Refer to paragraph numbers from SOC when admitting/denying/pleading no knowledge 25.07(4) Different version of facts must be pleaded in SOD 25.07(5) Affirmative defences must be pleaded in SOD 25.07(7) Damages in issue unless specifically admitted REPLIES 25.08(1) Intend to prove version of facts different from version in SOD unless already pleaded in SOC 25.08(2) In response to SOD you may rely on something that may take def by surprise 25.08(4) Deemed to deny unless reply filed PARTICULARS 25.10(1) Written request for particulars 25.10(1.1) Opposite party may (a) file and serve particulars or (b) file and serve written refusal 25.10(2) Court may order particulars if opposite party fails to comply with (1.1) 25.10(3) Request not a stay, extends time a bit CASE: Dumont v. AG Canada Particulars define issues Substantial difference between particulars for purposes of pleading and full disclosure for purposes of trial CASE: Hardwood Forest Products Inc. Can’t use particulars as a means for getting at ecidence Identification of issues crucial Request for evidence properly a matter for discovery STRIKING PLEADINGS AND OTHER DOCUMENTS Court may strike all or part with or without leave to amend if (a) prejudice or delay (b) scandalous, frivolous or vexatious 25.11 (c) abuse of process (d) does not disclose reasonable COA or defence CASE: Bergen v. Manitoba No COA, 4 elements of negligence not established File motion before filing SOD Principle: right of access to courts Rules apply to individual representing self as much as to lawyer Liberal construction does not mean ignoring rules CASE: Manitoba Hotel Association Inc. Have all required elements of the tort been pled? To strike: must be “plain and obvious” or “beyond doubt” (that no reasonable COA) CASE: Centaur Products Ltd. File motion to strike before SOD SOD validates SOC CASE: Coleman v. Pateman Farms Ltd. Balancing important Pro se litigant should not be denied opportunity of presenting case to court by strict application of Rules Non-compliance different from imperfect compliance CASE: Apotex “Other documents” in 25.11 include notices of motion Notices of motion and affidavits ought to be struck where the outcome of the motion is “plain and obvious or beyond doubt” CASE: Manitoba Medical Association Motion to strike affidavits One struck because deponent had contractual and fiduciary duty to government not to disclose info Party seeking to strike must show probative value marginal and substantially outweighed by danger of unfair prejudice, undue delay or needless presentation CASE: McDonald-Wright v. O’Herlihy (Ont.) Motion to strike wrongful life suit, no COA Allowed to proceed, law on wrongful life not settled in Ont, other provinces JC AMENDMENTS 26.01 Leave to amend to be granted unless result is prejudice which cannot be compensated by costs or adjournment 26.07 Amendments at trial CASE: Lacroix v. Dominique Amendments permitted unless prejudice to other side cannot be compensated by costs, adjournment Must present issues worthy of trial Need sufficient particulars Delay not a big factor CASE: Miller v. Jaguar Amendments disallowed New action being created – statute-barred If factual underpinnings pleaded ok, if not, can’t amend unless special circumstances Stresses importance of “timely and accurate pleadings” COUNTERCLAIMS 27.01(1) Defendant may assert against plaintiff 27.01(2) Can add defendant to counterclaim (necessary or proper party), don’t have to just sue plaintiff 27.02 Include in SOD (SOD and Counterclaim) 27.08(1) Tried at trial of main action unless ordered otherwise 27.08(2) If unduly complicates or delays main action or causes undue prejudice, separate CROSSCLAIMS Against codefendant who is or may be (a) liable to def for pl’s claim, all or part (b) liable to def for independent claim 28.01 related to main action (c) codef should be bound by issue determined in main action 28.09 Tried at or immediately after main action unless otherwise ordered 28.10 Separate if delay or prejudice THIRD PARTY CLAIMS 3P is or may be (a) liable to def for pl’s claim, all or part (b) liable to def for indep claim (c) bound by determination of 29.01 issue 29.05(1) May defend main action, may raise any defence open to defendant 29.05(2) 3P who files SOD has same rights as def and is bound by any order or determination made in main action 29.05(5) 3P who does not file SOD bound by any order or determination made in main action 29.09 Plaintiff not to be prejudiced or unnecessarily delayed, may object (only plaintiff may object) CASE: Gilbart v. Ventura Custom Homes Actions severed DISCOVERY QBR 30 - 35 Disclosure and exchange of documents, factual info - COMPELLED Documentary disclosure and oral examination 1. enable to discover other party’s version Purposes 2. get admissions under oath 3. enable to assess credibility, demeanour 30 – documents 31, 34 – oral Types 31, 35 – interrogatories 32 – inspection of property 33 – physical and mental exams of parties DOCUMENTARY DISCOVERY QBR 30 (a) Includes sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account, information recorded or stored by means of any device – COURT: includes computer disks 30.01(1) (b) In a party’s power if that party is entitled to obtain the original or a copy of it and party seeking it is not so entitled – if matter of public record no obligation to disclose (c) Relevant document relates to any matter in issue in an action – defined by all pleadings 30.02(1) Scope of disclosure: relevant document disclosed regardless of whether privilege claimed 30.02(2) Production: only required to produce non-privileged documents 30.02(3) Insurance policies disclosed, read in conjunction with 31.06(4), no insurance info admissible unless relevant Required to serve affidavit of documents, serve on every party 30.03(1) Must “sufficiently identify” documents Itemize privileged documents 30.03(2) Sworn by party, if corp by dir/off/emp 30.03(3) Lawyer’s certificate – certify that explained to deponent that must disclose all relevant material 30.03(4) Not to be filed unless relevant to issue on pending motion or trial 30.04(1) Inspection of documents – non-privileged, in care/power/control 30.04(4) All non-privileged docs shall without notice/subpoena/order be produced at exam for discovery and trial 30.04(6) Court can review docs to see if claim of privilege is valid 30.05 Disclosure is not an admission of admissibility at trial Powers of court re: relevancy, omission, privileged may order XE on affidavit 30.06 order service of further and better affidavit order disclosure order inspection to determine relevance or privilege 30.07(1) Documents subsequently discovered to be disclosed by supplementary affidavit 30.07(2) Supplementary affidavit to correct any errors or omissions 3 JC RELEVANCE – first focus CASE: Verwey Potatoes Low threshold “Marginally relevant” Lower than at trial Lack of specifics in pleading contributed to problem CASE: J-Sons Test is relevance Look to pleadings Must be able to articulate theory of how document fits in PRIVILEGE CASE: Slavutych v. Baker Wigmore criteria (4) CASE: General Accident Assurance Co. v. Chrusz Distinction between solicitor-client and litigation privilege 3 differences: 1. S-C applies to communication between S and C, litigation to S and 3P (material non-communicative, non-confidential) 2. S-C anytime whether or not litigation involved, litigation only in context of litigation itself 3. Rationale: S-C protects relationship, litigation protects process CASE: Levin v. Boyce For litigation privilege – what was dominant purpose behind the preparation of the document? CASE: Chmara v. Nguyen Issue: have new rules altered law re: privilege (broadening of discovery)? NO Videotapes privileged Could not ask questions about contents of tape during oral discovery (wanted facts) Plaintiff entitled to date/time/place of recording CASE: Gower v. Tolko Report prepared by BC lawyer investigating sexual harassment complaint Entire report subject to S-C privilege Fact-gathering inextricably linked to provision of legal advice Investigation related to the rendition of legal services 3 requirements for S-C privilege: 1. Document was giving/obtaining legal advice 2. Presence of S and C 3. Presence of S-C relationship Can only be waived voluntarily – not voluntary here Answer in response to an interrogatory is not voluntary, therefore no waiver CASE: Bone v. Person At criminal proceeding, civil lawyer called, blanket waiver given No qualification of waiver Did waiver apply to civil trial? YES Same subject matter, waiver not limited, no reason to restrict in civil Not a prospective waiver, everything after testimony privileged (changed lawyers anyway) CASE: Burch v. Harder Dominant purpose test Docs prepared for purposes of litigation Plaintiff not disadvantaged, no property in witnesses, could get names and addresses and question Would find out info through discovery CASE: A.M. v. Ryan Wigmore test for privilege CASE: Pritchard v. Ontario HRC In-house counsel case CASE: R. v. Canadian Territory Helicopters Inc. Communications between lawyer and 3P on plaintiff’s behalf privileged CASE: Leonardis v. Leonardis Documents on without prejudice basis (settlement purposes) Privilege belongs to both parties, can’t be unilaterally waived Contents determine privilege DEEMED (IMPLIED) UNDERTAKING RULE QBR 30.1 30.1(1) Applies to evidence obtained under QBR 30, 31, 32, 33, 35 and derivative information = DISCOVERY 30.1(2) Does not apply to information obtained otherwise 30.1(2) Applies to all parties and lawyers, breach = contempt of court CASE: J-Sons 2 simultaneous actions in MB and AB Expert reports under 50.03(1) and 50.10(3) not listed in 30.1, not protected CASE: Hanson Cannot be used for any other purpose other than conduct of action No formal order necessary, rule does not require one to be effective and binding CASE: Apotex No formal order required for undertaking rule (implied rule is the same as an express one would be, no difference) 4 JC ORAL EXAMINATIONS FOR DISCOVERY AND INTERROGATORIES QBR 31, 34, 35 Get other side, elicit admissions under oath, assess demeanour and credibility of witnesses Transcript is property of lawyer asking the Q 31.02 Form: oral exam, interrogatories, both 31.03(1) Party can examine any other party adverse in interest 31.03(2) If party is corp, can examine anyone who is or has been off/dir/emp of corp 31.03(6) Examining party may choose who to examine on behalf of corp CASE: Merchants Consolidated Operation of 34.14(1) – sanction for failure to attend Past officer of corp no longer subject to corp’s control, corp is vulnerable to sanction Limitation on choice in 31.03(6) 31.04(1) To examine plaintiff – after filed SOD, after serving affidavit of docs – unless agreed otherwise 31.04(3) Party who serves notice of examination or interrogatories examines first unless court orders or parties agree otherwise Scope of examination – person examined shall answer to best of knowledge, information and belief any proper question re: matter in issue or matter made discoverable 31.06(1) No question objected to on grounds that info sought is evidence, question is XE (unless going solely to credibility) or question is XE on affidavit of documents CASE: Investors Syndicate v. Pro-Fund Scope is broad Purpose to obtain admissions Scope of discovery wider than scope at trial May directly/indirectly aid party determine own case or other party’s case Determined by pleadings 31.06(2) Names/addresses of people who may have relevant info – disclosure of potential witnesses Experts – findings, opinions and conclusions, name and address UNLESS litigation privilege or party being examined 31.06(3) undertakes not to call as witness at trial May obtain disclosure of insurance info (insurer may be liable for all/part of judgment or indemnification of party) but not 31.06(4) admissible at trial 31.07(1) Refusal to answer proper question – party cannot use evidence at trial 31.08 Lawyer for party can answer on their behalf, recorded as client’s answer 31.09(1) Duty to correct – provide correction in writing to every party 31.09(3) Failure to correct – if information favourable will not be allowed to introduce at trial 31.10(1) Discovery of non-parties with leave of court, may have material relevant to issue in question Moving party must not be able to info from other persons entitled to examine, unfair not to examine, no undue delay or 31.10(2) unfairness to person to be examined 31.10(3) Evidence of non-party may not be read into evidence at trial USE AT TRIAL 31.11(1) Reading in at trial – must otherwise be admissible, don’t have to testify at trial CASE: Tangocci Reading in = adopting as case Lesson: be careful when reading in CASE: Lebedynski Don’t read in for inconsistent statements, use in XE to impeach Can withdraw if not unfair to other party 31.11(2) Can use at trial to impeach (not reading in and adopting as part of case) 31.11(3) Qualifying answers – if part read in can request additional answers read in for context (to qualify/explain) 31.11(4) Portions read in may be rebutted PROCEDURE 34.14(1) Sanctions for default INTERROGATORIES 35.02(1) Answered by affidavit within 15 days 35.03 Object to question in sworn affidavit response, brief statement of reason CASE: First Class Transportation Full and complete disclosure contemplated by QBR Must respond by sworn affidavit Here party given another opportunity to respond OTHER DISCOVERY QBR 32, 33 INSPECTION OF PROPERTY If you don’t agree, leave to the court 32.01(1) Real or personal property May permit entry, taking of temporary possession, measuring/surveying/photographing, taking of samples, making of 32.01(2) observations, conduct of test/experiments, any other act 32.01(4) Person in possession a party, notice required but may be dispensed with 32.01(5) Person in possession a non-party, must give notice 5 JC 6 PHYSICAL AND MENTAL EXAMINATIONS OF PARTIES Order under s.63 Queen’s Bench Act 63(1) – defines health care practitioner 33.01 63(2) – court can grant motion 63(3) – order granted if allegation relevant to material issue or good reason to believe substance to allegation 33.05 No one present except person being examined and examining practitioner (and assistants) 33.06(2) Report to be served on all parties 33.08 Can be done by consent in writing CASE: Jobes v. Zolinski Examiner can be challenged Multiple examinations can be challenged Act and Rules contemplate possibility of multiple examinations Cannot “shop” for better opinions MOTIONS, APPLICATIONS AND AFFIDAVITS QBR 37, 38, 39 Part IX of QBR Originating motion = application Motions and applications common procedural features Evidence normally in affidavit form MOTIONS QBR 37 Ask court for relief in course of litigation 37.02(1) Judge jurisdiction to hear any motion 37.02(2) Master jurisdiction to hear any except listed exceptions 37.03(1) Shall be made to master if within jurisdiction 37.03(2) If master not available, to judge 37.03(3) Master may refer to judge, judge may dispose or refer back in whole or part 37.06(1) Notice of motion served on anyone affected 37.06(2) May have motion without notice – ex parte 37.06(5) Where not served and should have been, court may dismiss, adjourn or order service APPLICATIONS QBR 38 Civil proceeding other than an action, originating motion 38.01 Applies to proceedings under 14.05 – commenced by notice of application 38.03 All applications shall be made to a judge 38.09 Disposition – allow, dismiss, adjourn, direct to trial CASE: Virginia Fontaine Each side tried to prevent the other from proceeding by way of application Application for where material facts not in dispute – 14.05(2)(d) Interpretation of agreement under 14.05(2)(c) Application best way to proceed here EVIDENCE ON MOTIONS/APPLICATIONS QBR 39 1. Affidavits 2. XE on affidavits 3. Examinations of witnesses before the hearing – 39.03(1) 6 forms: 4. Transcripts of examinations for discovery 5. Agreed statement of facts 6. Admissions made pursuant to QBR 51 AFFIDAVITS AS EVIDENCE 39.01(1) May be given by affidavit unless otherwise provided 39.01(4) For motion, information and belief acceptable if source of information and fact of belief specified For application, information and belief acceptable with respect to non-contentious facts if source of information and fact of 39.01(5) belief specified 39.01(6) Ex parte – full and fair disclosure of material facts required, if not order may be set aside 39.01(7) Affidavits may be sworn before motion/application filed CASE: Lexogest Motion to expunge portions of affidavits in support of application Hearsay related to contentious facts not ok, deponent did not state belief Hearsay worthless on contentious matters in applications Re: opinion evidence – deponents had necessary qualifications, consider weight Disregard hearsay and argumentative aspects XE ON AFFIDAVITS 39.02(2) Once have XE, cannot file any subsequent affidavits or examine witness under 39.03 without leave or consent CASE: Virginia Fontaine XE on affidavit not confined to affidavit Can XE re: credibility Restriction: relevance EXAMINATION OF WITNESSES 39.03(1) Other than experts 39.03(2) May be XE and re-examined, re-exam may take form of XE 39.04 – EXAMINATION FOR DISCOVERY 39.04 QBR 31.11 applies (use at trial) JC 7 AFFIDAVITS GENERALLY QBR 4 To be in first person, full name of deponent, capacity, #’d paragraphs, signed, sworn/affirmed (if outside MB, in front of 4.07(1) notary public) Personal knowledge of deponent, could testify to in court except where rules provide otherwise (information and belief for 4.07(2) motions and applications) 4.07(3) Exhibits referred to in affidavit DISPOSITION WITHOUT TRIAL Part V QBR Default Summary Judgment Expedited Action Determination of Issue Before Trial Special Case Discontinuance and Withdrawal Dismissal for Delay DETERMINATION OF AN ISSUE BEFORE TRIAL Determination of a question of law – move before judge where determination of question may dispose of all or part of 21.01(1) action, substantially shorten the trial or result in a substantial savings of costs CASE: Preston v. Chow Determination of Q of L employed where one of 3 effects – in rule Rule is discretionary tool of the courts Trial would be shortened and complexity reduced MOTION FOR SUMMARY JUDGMENT QBR 20 20.01(1) Available to plaintiff 20.01(3) Available to defendant Evidence – responding party may not rest on pleading, must set out in affidavit form etc. that there is a genuine issue for 20.02(1) trial 20.02(2) If no XE, filing of affidavits, etc. in reply, court may draw adverse inference Information and belief ok (39.01(4)) but court may draw adverse inference from failure to provide evidence of personal 20.02(3) knowledge 20.03(1) Court may grant where satisfied that no genuine issue for trial exists 20.03(2) Where issue re: amount of damages, may order a trial to determine amount 20.03(3) If only genuine issue is issue of law, court may grant summary judgment 20.03(4) May hold trial on affidavit evidence unless unjust to do so or unable to find facts necessary to decide Plaintiff who obtains judgment may proceed against same defendant for other relief or against any other defendant for 20.04 same or other relief 20.06(1) Court may order expedited trial 20.07 Apply to counterclaims, crossclaims and third party claims (with necessary modifications) CASE: Pokridznik v. Schwede No genuine issue, mere pleading of a defence is not enough Onus is on the moving party to establish prima facie, onus then shifts to responding party to raise a genuine issue through the evidence Real chance of success ≠ theoretical possibility CASE: Bird Construction v. Theo Can’t just rely on pleadings Need evidence showing prospect of success at trial Must examine evidence Real chance of success ≠ substantial chance (lower threshold) CASE: MB Hydro v. Inglis Chance of success is more than figment of imagination Only party under the Limitation of Actions Act who can bring evidence of a chance of success is the party applying for the extension Credibility can be considered Real chance = air of reality, etc. Merit in allowing the case to go ahead? COSTS QBR 49, 56, 57, 58 QBA s. 96 – Courts have unlimited discretion to award Party and party costs = according to tariff Solicitor-client costs = full indemnity, must be ordered by court, have to ask for them Can award costs against solicitors personally – RARE, must be more than mistake, error of judgment of mere negligence CASE: Young v. Young S-C costs generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties Courts may order against solicitor personally if bad faith in encouraging abuse and delay, courts must be extremely cautious JC 8 OFFER TO SETTLE 49.02(1) Party may make offer, serve on other party 49.03 Can be made at any time 49.04(1) Can withdraw at any time 49.04(3) If specifies time period, deemed to be withdrawn when time expires (if no withdrawal or acceptance before expiry) 49.05 Made without admission of liability and without prejudice 49.06(1) Cannot mention offer in pleadings 49.06(2) Cannot mention offer at hearing 49.06(3) Not to be filed until all liability and relief determined (other than costs) 49.07(2) Offer rejected or counter-offer made, original offer may still be accepted unless withdrawn or expired Where offer does not provide for disposition of costs – plaintiff entitled to party and party costs to date offer served (offer 49.07(5) by defendant) OR to party and party costs to date notice of acceptance served (offer by plaintiff) Failure to comply with terms – other party may move for judgment or order in terms of accepted offer OR may proceed as 49.09 if no accepted offer Plaintiff’s offer not accepted (not withdrawn, >3d before motion, >7d before proceeding) and plaintiff obtains judgment as 49.10(1) favourable as or more favourable than terms of offer to settle, plaintiff entitled to party and party costs to date served, double from date (unless court orders otherwise) Defendant’s offer not accepted (not withdrawn, >3d bf motion, >7d bf proceeding) and plaintiff obtains judgment as 49.10(2) favourable as or less favourable than terms of offer, plaintiff entitled to party and party to date, defendant entitled to party and party costs from (unless court orders otherwise) SECURITY FOR COSTS 56.02 Declaration of plaintiff’s place of residence (whether resident in MB), where lawyer fails to respond may stay or dismiss AWARDING AND FIXING OF COSTS 57.07(1) Against lawyer personally where caused costs to be incurred without reasonable cause or wasted by undue delay 57.07(2) Lawyer must be given reasonable opportunity to make representations to the court