Civil Procedure Flow Chart

Civil Procedure Flow Chart 1. Considerations before commencing litigation Settlement o ROPC – Rule 2.02(2) – A lawyer shall advise and encourage the client to compromise or settle a dispute whenever it is possible to do so on a reasonable basis and shall discourage the client from commencing useless legal proceedings  Be deferential to arbitration clauses, or anything else that might require pause before heading to court Standing – Measure of directness of interference o Violation of Private rights  One on one situation o Violation of Public Rights/Protection of the Public Interest  Vindicate rights not possessed by him or her personally but rather by the public  Plaintiff must be granted public interest standing by the court hearing the claim – courts are fairly rigid on this o BUT - public interest standing is not required when, on the BOP, it can be shown that the measure will be subject to attack by a private litigant  Purpose of public interest standing is to “ensure that legislation is not immunized from challenges”  In order to granted public interest standing must satisfy three part test (outlined in Canadian Council of Churches): o There must be a serious issue raised as to the validity of the legislation/action in question o The plaintiff must demonstrate that he or she is directly affected by the legislation  OR has a genuine interest in its validity o There must not, on the BOP, be another reasonable and effective way to bring the issue before the court  i.e. - Is there someone else that could bring the claim – CCC turned on this point o POLICY  Gate Keeper argument – discretion of court for what cases it hears o Judicial Concerns in exercise of discretion  Proper allocation of judicial resources  Prevention of vexatious suits - 1  Particular requirements of the adversary system  Justiciability – whether the full dimensions of the issue can be expected to be aired before the court - Capacity o Everyone can be sued  Corps. (same as people) – sec. 15 of the Buis. Corp. Act  Partnerships  Rule 8.01(1) o Commence in the firm name of the partnership  No children  No mental o EXCEPTIONS  Rule 7.01(1)  Unless the court or a statue orders otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a LG  Rule 1.03 defines legal disability and it includes:  A) a minor which is up to the age of 18.  B) an absentee (someone who‟s disappeared)  C) A person mentally incapable within the meaning of the Substitute Decisions Act, which has a detailed definition of what is considered mentally incapable  Parties Under Disability : Litigation Guardians  Rule 7.02(1)(a-d) o Any person who is not under disability may act, without being appointed by the court, as a LG for the plaintiff or applicant who I under disability o Exceptions to acting as LG if plaintiff is mental  Can‟t if they have a legal guardian  Has an attorney under a power of attorney  Rule 7.02(2)(a-h) – p. 324 – can‟t act as LG until affidavit is filed stating the following o (a) consents to act as LG in the proceeding o (b) confirms that he or she has given written authority to a named lawyer to act in the proceeding o (c) provides evidence concerning the nature and extent of the disability o (d) in the case of a minor, states their birth date o (e) states whether he or she and the person under disability are normally residents of Ontario o (f) sets out his or her relationship, if any, to the person under disability o (g) states that he or she has no interest in the proceeding adverse to that of the person under disability 2  o (h) acknowledges that he or she has been informed of his or her liability to pay personally any costs awarded against him or her or against the person under disability  7.03 (Litigation Guardian for D or R) o Must be appointed by the court, same presumptive right to act as litigation guardian as for P. (2.2) must file affidavit with court before acting.  7.04 (Litigation Guardian for party) o Unless there is some other proper person willing and able to act as litigation guardian the court shall appoint 1) the Children's Lawyer if the party is a minor b) the Public Guardian and Trustee if the party is mentally incapable, and c) either if a) and b). Consequences if you are considered under a legal disability?  Incompetent to retain and instruct counsel.  Incompetent to sue or be sued in your own name.  You are represented by a litigation guardian if you meet the test for legal incapacity. o For minors, it is normally the parents.  A parent will not act as a guardian when there is a conflict of interests (CUSTODY)  Office of the Children’s Lawyer, assigns litigation guardians for minors.  Child might need to sue parent to engage insurance o For people under disability  The Office of the Public Guardian and Trustee. - Costs Validity of cause Client expectations Solvency of defendant Limitations o Generally 2 years as per section 4 of the Limitations Act  EXCEPTIONS - Time doesn‟t run:  S (6) – MINOR  S (7) – DISABILITY  S (10) – ASSAULT OR SEXUAL TRAUMA – condition precludes bringing claim o Limitations arise from the point of discovery or the point that the plaintiff should have discovered if employing due diligence  Section 5 and Central Trust (reasonable diligence) 3 o o o o o (2) Rebuttable presumption that this date is the date that the injury occurred  Central Trust  Cause of action arises for the purposes of limitations when the material facts on which it is based have been discovered or ought to have been discovered by the claimant, employing due diligence o Knowledge is key!! – when does knowledge of injury commence?  M(K) v. M(H)  “plaintiff have a substantial awareness of the harm and its likely cause before the limits period begins to toll” o Facts – later discovered sexual abuse Defendant must plead a limitation defence to the claim being made  Defence is absolute despite the merits of the claim – must be done early so that litigation $$ are not wasted Ultimate limitation periods not longer than 15 years – section 15  Exceptions 15(4) – time doesn‟t run when person with claim:  Physical, mental or psyc. condition o not rep. by LG  Minor without LG  Person who the claim is against o Conceals – injury, loss or damage o Misleads – approp. of a proceeding as a remedy  Burden of proof on claimant to establish exceptions Section 11  Third party resolution – arbitration – mediation etc.  Limitation period resumes on resolution, abandonment, or withdrawal Section 22  (1) A limitation period under this Act applies despite any agreement to vary or exclude it  (2) Subsection (1) does not affect an agreement made before the day this Act comes into force – Jan. 1st 2004  Access to Justice Bill, Schedule D, clause 2(3) (Supp., p.20) would now allow (after Jan. 1. 2004) limitation periods to be modified by:  Agreements made by parties who are all acting for business purposes, or  Agreements made to suspend or extend a limitation period (i.e. – only advantage the potential injured – CAN‟T DISADVANTAGE) POLICY  Fairness to defendant  Economic  Justice system without time limits would be inefficient  Cultural – must accept at some point that disputes are stale/ancient  4 o Flexibility  Some times unjust to enforce limitation period  When a person acknowledges liability – time running prior, court can hold doesn‟t count – acknowledgment must be in writing  S. 11 – Time stops for third party resolution o No Limitation Periods for the following:  For a declaration if no consequential relief is being sought  To enforce a court order  To obtain support under the Family Law Act  Under the Remedies for Organized Crime and Other Unlawful Activities Act, 2001  To recover money owed to the Crown in fines and taxes  To recover money owed in respect to student loans  To recover money paid in connection with social, health or economic programs as a result of fraud, misrepresentation, error or inadvertence 2. Jurisdiction Superior Court o Except where provided specifically to the contrary, the Court‟s jurisdiction is unlimited and unrestricted in substantive law in civil matters  80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd.  Jurisdiction of Ontario Superior Court o Brooks J: with regard to the power of the Supreme court's (Superior Court)  1) power to grant an appropriate remedy  2) control its own process, the superior court of general jurisdiction has unlimited and unrestricted jurisdiction in substantive law in civil matters, except where specifically provided to the contrary. o See section 18-19 of CJA – Divisional Court o See section 22-23 of CJA – Small Claims Court Rules 17.02(h) and (o) o Defendants can be served without leave in cases in which the damage was suffered in Ontario, regardless where the wrong occurred, (o) or in which the defendant is merely a necessary party to a proceeding against another defendants served in Ontario  Judgment must be taken to a jurisdiction where the defendants assets are located and bring an action on the judgment there Rule 17.03(1) - - 5 - - - - o In any case to which 17.02 does not apply, the court may grant leave to serve an originating process or notice of a reference outside Ontario Rule 17.05(2) o Manner of Service  Same as if in Ontario or in the manner provided by that jurisdiction Rule 17.06(1) o Motion to set aside service outside of Ontario or stay proceedings  3 Grounds  2(a) service outside Ontario is not authorized by these rules  (b) an order granting leave to serve outside Ontario should be set aside  (c) Ontario is not a convenient forum for the hearing of the proceeding  Defendant seeking this should do so before submitting SOD or otherwise they will be deemed to not contend jurisdiction Real and Substantial connection between the court and the person being served – BUT – courts have discretion and flexibility on the test (Muscatt) o Morguard Investments  Broader real and substantial connection than the personal subjection approach  BUT still need Significant degree of contact between the defendant and the forum - prerequisite for the assumption of jurisdiction  Constitutional considerations in Morguard – provinces should NOT be recognized as a foreign state – importance of flow of wealth and hence a liberal approach – this was affirmed in Beals  So this consideration is infused with the measure of fairness from Muscatt – Real and Substantial - factors  McNichol  Affirmed this approach from the perspective of avoiding a multiplicity of proceedings o If no real and substantial connection to the forum, the assumption of jurisdiction could be challenged on constitutional grounds  Hunt o This test also to be considered for interprovincial and international ENFORCEMENT if the defendant has no assets in Ont.  Beals Commencing an action in home jurisdiction against out of jurisdiction defendant – Factors (Muscatt) o The connection between the forum and the plaintiffs claim o The connection between the forum and the defendant  If the defendant has done anything within the jurisdiction that bears upon the claim advanced by the plaintiff, the case for assuming jurisdiction is strengthened 6 - Also – could effect if it was reasonably foreseeable that the defendants conduct could result in harm within the jurisdiction o Unfairness to the defendant in assuming jurisdiction o Unfairness to the plaintiff in not assuming jurisdiction  Permitting a suit where there is a real and substantial connection to the forum is a reasonable balance of the rights of the parties o Involvement of the other parties to the suit  Involvement of the parties bears on the real and substantial connection test o The courts willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis  If not - cannot assume jurisdiction in proceeding with a claim o Whether the case is interprovincial or international in nature  Assumption of jurisdiction more justified in interprovincial cases that in international cases o Comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere – this consideration is not necc. In interprovincial cases because the same standard applies through out Canada  In international cases it may be helpful to consider international standards regarding the rules of assumed jurisdiction, recognition and enforcement in the location where the defendant is situated  Court noted that the international standards of help in assessing the real and substantial connection test Forum non conveniens (inapp. Forum) – stays and injunctions o Potent strategy for defendants – BUT – courts frown on forum shopping o Canadian courts have preferred to stay proceedings rather than finding themselves constitutionally incapable of deciding a case  BUT - Courts may however decline to hear a matter where there is clearly a more appropriate forum elsewhere  Motion or application to existing court or one in which the jurisdiction should take place o Anti-suit injunction is binding only on the plaintiff in the foreign action – has the potential to pre-empt the decision of a foreign court regarding its own jurisdiction  Issued with caution because of above  Ex. NY and Ont. – NY defendant applies to Ont. Court for anti-suit injunction in Ontario – NY  7 3. Selecting an Appropriate Court Supreme Court of Canada Ontario Court of Appeal Court of Ontario A. Ontario Court of Justice B. Superior Court of Justice Family Division Criminal Division 1. General Trial Function 2. Divisional Court 3. Small Claims Court 4. Specialized Toronto Courts a. Commercial List b. Estates Court c. Family Court 4. Type of Procedure and Originating Process Actions o Originating Process  Statement of Claim  Assigned number by court on issuance – must serve within 6 months  Style of Cause o Names Party  Statement o Claim and relief (claim everything!! – basket clause)  Rule 14.03 – Notice of Action  If insufficient time to prepare SOC before limitation period – gives an extra 30 days Simplified Procedure – Rule 76 o Less than $50,000 – Mandatory – Rule 76.02(1)  Above 50K can be put into SP by consent  Nailed on costs if you inflate your claim just to get out of SP 8 - - No Discovery – Rule 76.04  Still have Affidavit of Documents – 10 days after the close of pleadings – Rule 76.03(1)  List of potential witnesses – Rule76.03(2)  Written evidence (affidavit) o No cross – Rule 76.04  Can still have summary judgment – Rule 76.07  Must be clear on evidence o However more relaxed under SP  Newcourt Credit Group o TEST:  Rule 76.07(9)  Shall grant unless: o Unable to decide issues in the action without cross o It would be otherwise unjust to decide the issues on motion o **Can make determination of credibility -Newcourt o Originating Process  Statement of claim or notice of action – must say being brought under SP  Rule 76.02(4) Applications o No material fact in dispute that requires oral evidence o Written evidence – affidavits o Rule 14.05(3)(g)  Can commence Charter challenge by way of application o Originating Process  Notice of Application Rule 14.05(1)  Applicant and Respondent  9 JOINDER and Consolidation – Applications and Actions - Joinder Policy - Balance between preventing duplicative litigation (potential for inconsistent verdicts) and making the litigation too complex and burdens o Basis - S. 138 of CJA  “As far as possible multiplicity of legal proceedings shall be avoided” – does not instill an absolute right o Being joined not in adverse interest like in cross claim - CONSOLODATION – or hearing proceedings together o Generally  Will do so whenever joinder should have taken place  Will not do so if represented by different solicitors  Will also not do so when it would not be convenient  May direct that the actions be tried together  Will not do so if proceedings not taking place in the same court – although there is authority to do so under s. 107 of the CJA o Rule 6.01(1)  Where two or more proceedings are pending in the court and it appears to the court that,  (a) they have a question of law or fact in common  (b) relief arises out of same transaction or occurrence or series of transactions or occurrences  (c) for any other reason an order ought to be made under this rule, court may order that,  (d) consolidation, heard at same time or right after each other  (e) any of the proceedings be, o (i) stayed until after the determination of any other of them, or o (ii) asserted by way of counterclaim in any other of them o Consolidated – one of everything o Together – separate everything – just one after another o Counter argument – can delay and be inefficient  “Too high a price has been paid in an uncertain attempt to achieve consistency and economy”  Rae-Dawn Construction Ltd o Rule 6.02  Presiding judge nevertheless has the discretion to order that none of this takes place o PRACTICAL  Parties might not like this since there is the potential that a single jury might pay out a smaller aggregate award than if actions were tried separately  POLICY – Potential prejudice of plaintiff award in pursuit of judicial economy 10 - - JOINDER OF NECESSARY PARTIES - Rule 5.03(1) o Presence is necessary to enable the court to adjudicate effectively and completely on the issues - joined as a party to the proceeding  Onus on the plaintiff to ensure that all relevant aspects of the claim or claims are argued in the one proceeding or the lose the opportunity to do so (if a joinder of claims issue) o Rule 5.03(4)  Court can order joinder of parties that should have been joined  If contended - courts will not force to join as plaintiff but may add then as defendant instead  Lovric  BUT – Hannah  Motion by defendant to adjourn and add different party as a defendant – court held that the prejudice against the plaintiff (waited until 4 days before trial) outweighed the considerations of potential duplicity of proceedings o Court held that the defendant should have brought a third party claim and respected the right of the plaintiff to sue who they choose PERMISSIVE JOINDER – Concern – max. size of litigation o Rule 5.01(1) – Joinder of Claims  A plaintiff or applicant may in the same proceeding join any claims the plaintiff or applicant has against the opposite party o Rule 5.02  (1) – Joinder of plaintiffs – have to be represented by the same counsel  Also require claims of relief arising out of the same transaction or occurrence or series of those OR  A common question of law or fact may arise in the proceeding OR  It appears that joinder will promote the convenient administration of justice  BUT - Defendants can resist multiple plaintiff o Unsimilar facts or law o Joinder not advantageous  (2) – Joinder of defendants – REQUIRES:  Relief from same transaction, occurrence or series OR  Common question of law or fact OR  Doubt as to which person(s) the plaintiff is entitled to relief from OR  Damage has been caused to the plaintiff by more than one person – does not matter if the claims have a factual connection and there is doubt as to who the plaintiff is entitled to relief from – or liability amounts  It appears that joinder will promote the convenient administration of justice 11 - - Joinder via 3rd Part claim - Rule 29.01  A defendant may commence a third party claim against any person who is not a party to the action and who…  (c) should be bound by the determination of an issue arising between the plaintiff and the defendant SEVERANCE o Rule 5.05  When complex, prejudice etc. court may sever claims  Should only be ordered in the clearest of cases (Sempecos) and only in exceptional circumstances (Stevens)  WHY STRICT? o Law needs to progress in recognition of tremendous expense and protracted nature of litigation today  Foley  BUT - Could be live privilege issues preventing the actions from being heard together – disclosing info to other party Stevens Res Judicata - COMMON LAW DOCTRINE o Prevent duplicate litigation  Fairness and closure to winning party and efficiency o Issue estoppel is a doctrine of public policy that is designed to advance the interests of justice - CAUSE OF ACTION ESTOPPEL o From Hoque – Cromwell JA. o Court has adjudicated a claim between disputant parties and a subsequent action is brought between the same parties that are directly connected to the initial action.  Prevents fragmentation of litigation by prohibiting the litigation of matters that were never actually addressed in the previous litigation, but which properly belonged to it (ought to have been included)  BUT – Canadian courts are not so inflexible – Suggestion from Hoque is that Canadian courts have not embraced the broad principle that everything that should have been raised in the first action cannot then be raised in a subsequent action o No test – rather an inquiry into the context of the first proceeding and the issues raised there  Court must decide if that evidence could have been available in the first proceeding with reasonable diligence o Town of Grandview  If new evidence 12  Will look at reasonable availability of evidence in first action  Was the failure to raise point through negligence, accident or inadvertence? POLICY – There must be a balance struck between denying the proper adjudication in a matter – with the fullest of evidence - and respecting the courts process in avoiding duplicate litigation and the defendants right to have a matter be put behind them  - ISSUE ESTOPPEL o Considerable flux in Canada  English – Rigid  US – Flexible o Three prong test:  Same issue?  Prior final judicial decision?  Mutuality requirement met? o Expanded Requirements for the application of issue estoppel  Same issue must be involved in the initial and subsequent litigation  The issue must have been actually litigated and determined in the first suit and its determination must have been necessary to the result in the litigation  Decision on the issues in question must have been final and adjudicated  The only parties who can benefit from or be bound by are the parties of the initial litigation  Mutuality o Can‟t use decision (negative or positive) unless original parties o Abuse of Process (we have are not calling it nonmutual issue estoppel – wink wink) might curtail the strict application of this concept  Airline crash example  Offensive non-mutual issue estoppel – good – saves 200 trials trying to establish negligence  Counter argument o Is that it would increase at everyone adopts a wait and see attitude  Argument is that we should extend issue estoppel to parties that are not mutually privy to the original action o POLICY AGAINST:  Would necessitate the party not privy to the original proceeding be bound by that determination without having opportunity to 13 make their own case, present their own evidence. Etc. o Arnold  An issue may be relitigated if the law has changed  More flexible approach – special circumstances do exist where the rule should not be recognized o McIlkenny  Denning tried to take US non-mutual issue estoppel stance but got shot down by the HOL – they took the abuse of process approach that we have adopted in Canada o Criminal Convictions –  Prior criminal convictions on civil proceedings  General Rule in Ontario - Prima facie proof of liability only – subject to rebuttal by defendant (potential for relitigation!!) o Finding of fact in support of that conviction are not admissible in evidence  Re Del Core and Ontario College of Pharmacists  Policy here – Rule appears to allow (through effective rebuttal) the relitigation of a criminal conviction – not a good use of courts time – and amount to a collateral attack  Demeter  SCC – Upheld OAC finding that an attempt to relitigate an issue already determined in a criminal proceeding is an abuse of process o Life insurance money for wife‟s death (he was convicted in her death!)  Toronto (City) v. Cupe, Local 79  Defendant rebutted conviction of sexual assault at labor arbitration - was found to be wrongfully dismissed  Court held in this case that it was not a collateral attack – simply contesting the correctness of the factual basis of the decision – RIDICULOUS!  Issue here is that they should have been able to use Issue Estoppel but the mutuality requirement was not met – so they applied discretion – abuse of process  Collateral Attack o An attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment o To overturn convictions when these actions take place in the wrong forum (e.g. overturning a criminal conviction during a labour arbitration)  Abuse of process as way to deny the quasi collateral attack– cases might not meet the true definition of 14 collateral attack when one seeks to render the prior judicial determination of no force or effect o Proceedings unfair to the point that they are contrary to the interest of justice o Engages the inherent power of the court to prevent the misuse of its procedure o Similar checks for abuse of process – allowed in same circumstances as issue estoppel o In this case the court held that anyone acting reasonable with the evidence could not have come to his finding (labour arbitrator) o Admin. Tribunals  Rasanen  Confirmed that an administrative finding could be a “final, judicial decision”  However ESA is well established – not a great authority if considering a very informal tribunal  Good authority for shared community of interest o First action was MOL and def. o Second action was P. and D. o Court held that since MOL and P. held a community of interest that the mutuality requirement was met  As long as the tribunal provides the parties with an opportunity to know and meet the case against them, and proper jurisdiction, then there is no basis for exempting issues adjudicated by the tribunal from the operation of issue estoppel in a subsequent action  POLICY – How informal can these administrative findings be? o Will this prevent people from bring action in the more affordable forums for fear they will not receive a competent decision and then subsequently be bound by it?  Minott  A person must actively participate in administrative proceedings to meet the same parties criteria to engage issue estoppel  Not enough that they were entitled to be there  POLICY – You could just not show up and then not be bound  OBITER o Court held that it would have used it‟s discretion to not apply issue estoppel even if the test had been met – take away from strict application of test  Danyuck 15     Issue estoppel should not be employed if not in the interest of justice Decision must have emanated from such a tribunal in the exercise of its adjudicative functions o ESO‟s improper behavior carried her outside the jurisdiction of the ESA  Administration decision without jurisdiction does not qualify o But – in this case the court decided that the test had in fact been met – and applied its discretion!! Naken o Discretion should be broader in the context of administrative tribunals because of the enormous range and diversity of the structures, mandates and procedures of administrative decision makers Test: o Is there something in the circumstances of this case such that the usual operation of the doctrine of issue estoppel would work an injustice?  Wording of the statute from which the power to issue the administrative order derives  The purpose of the legislation  The availability of an appeal  The safeguards available to the parties in the administrative procedure  The expertise of the administrative decision maker  The circumstances giving rise to the prior administrative proceedings  The potential injustice 16 5. Pleadings Purpose of Pleadings 1. To define the question(s) in controversy between the litigants; 2. To give fair notice of the case that has to be met so the opposing party can appropriately gather evidence and respond; 3. To define the issues for the purpose of discovery (documentary and oral) and, potentially, settlement ; 4. To assist the court on adjudicating the allegations made by the parties; and, 5. To constitute a record (blue print) of the issues involved in the action (ie. to later determine the applicability of res judicata). Types of Pleadings: Rule 25.01 provides for 12 types of pleadings: STATEMENT OF CLAIM - Serve in 6 months o Rule 14.08 - Material fact pleadings – one that is necessary to support the SOC – no evidence o Minimum of Material Fact disclosure  Rule 25.06(1)  Every pleading shall contain a concise statement of the material facts which the party relies on for the claim or defence, but not the evidence  Rule 25.06(8)  Where fraud, misrepresentation, breach of trust, malice or intent is alleged – full particulars required - Substantive Adequacy o Rule 21.01(1)(b)  Must disclose cause of action - Conclusions of law (Cause of action) must be supported by material facts o Rule 25.06(2) – Famous Players  Must be a cause founded in law – novelty is no concern o Johnson  Disclose a reasonable cause of action with some chance of success – action may proceed o Operation Dismantle Inc - Amendment – prevents variance (lawsuits decided within boundaries of plds) o Rule 26.01  Motion at any stage (even at trial) provided incompensible prejudice doesn‟t occur – earlier the better  If plaintiff can show no incompensible prejudice then mandatory (Mazzuca) 17 o Rule 26.02  Can amend:  (a) Without leave – before the close of pleadings if the amendment does not include or necessitate the addition, deletion, or substitution of a party  (b) With filing of consent of all party – if adding party with their consent too  (c) With leave of court o McDonald Construction Company  POLICY REASONS FOR AMENDMENT  Civ. Pro. not plastic and technical to deny proper justice (see also Severin) o Support – Scalera – SCC  What really matters is not the labels used by the plaintiffs, but the true nature of the claim  Must allow new ideas/directions unavailable at time of pleadings o Court used discretion to allow pleadings to be reopened – new discovery  Costs to be born by party who should have asserted claim/defence in pleadings o Reconstitute Action  Rule 5.04(2)  More discretion than amendment but narrower scope for reasons o Discretion to add, delete, or substitute a party of correct the name of a party unless prejudice would result  Amendment is not mandatory once prejudice is established to be compensable as under 26.01 o Court has residual discretion to deny amendment under this rule  Mazzuca o Limitation Periods  Expiry of limitation period – PREJUDICE – Deaville  If plaintiff can‟t rebut presumption should apply – onus not unfair – facts within their reach o Can override SOL in very peculiar circumstances  Barasky  In this case overridden to allow increased prayer in death of wage earner – claim on behalf of widow and children through Fatal Accidents Act  Court compassion – were these the special circumstances? 18 - - Recommendation - Need symmetry between rights - Watson  Should be allowed to amend if can prove no prejudice to the interest sought in the SOL – timely notice o Def. would have to show that evidence is unavailable o Def. would have to show that he has changed position in reliance of the expiry of the limitation period  Onus should be on defendant – he knows it best! – his prej.  Mazzuca  Party seeking amendment – show no incompensable prejudice and existence of special circumstances Punitive claims must be pleaded o Rule 25.06(9) – Nature of the relief to be claimed  Must be material facts to support this claim  Whiten – OBITER – Onus on def. to seek particulars – did in this case influence the courts discretion in find the pleading sufficient to engage claim of punitive damages. Pleadings can be unsubstantiated o Lammie  Not unreasonable for pleadings to be unsubstantiated but must not progress past certain point without evidence – or suffer cost consequences  Eve of trial and still had nothing o Practical - plead everything – better to drop than to have to add  STATEMENT OF DEFENCE - Issued in 20 days o Rule 18.01(a) - Substantive Adequacy o Rule 21.01(1)(b)  Must disclose reasonable defense - Material Facts o Rule 25.07 - Must  (1) Admit uncontested facts  (2) Deny or plead no knowledge in other facts – otherwise you will be deemed to have admitted the, o Rule 25.07(4)  All matters to defeat claims of other party must be pleaded – no surprises at trial!! - Minimum of Material Fact disclosure o Rule 25.06(1)  Every pleading shall contain a concise statement of the material facts which the party relies on for the claim or defence, but not the evidence o Rule 25.06(8) 19 - - Where fraud, misrepresentation, breach of trust, malice or intent is alleged – full particulars required o Copeland  If minimum level of fact disclosure is not met – motion to strike out pleading – not motion for particulars Motion to Request Particulars o Rule 25.10  7 days – court can order  NOTE – Fine line between particulars and evidence – balance between issue defining and giving evidence  Depending on case – level of particulars can vary – Copeland Motion to strike pleading or part of pleading – with or without leave to amend  Motion can only be brought, except in exceptional circumstances, before a response is fired to the impugned pleadings  Motion is asserted with a belief that the pleadings are factually inadequate  Strategic – ready for a fight, ready to defend o Rule 25.11  (a) May prejudice or delay the fair trial of the action  (b) Is scandalous, frivolous or vexatious; or  (c) Is an abuse of the process of the court o Court will refuse leave to amend only in the clearest of cases  Lido Industrial Products o POLICY  Court is looking to obtain substantive justice – not procedural justice – if a pleading is struck, should be done with leave to amend if pleading can be improved and no injustice is suffered  Watson  REPLY - Rule 25.08(1) o Contest newly pleaded facts - Rule 25.08(2) o Must reply setting out a defence on any matter that might take the opposite party by surprise at trial - Rule 25.09(1) o A party who delivers a reply should admit every allegation of fact that they do not dispute - Rule 25.04(3) o Issued in 10 days  Or 20 days if issued with a defence to a counterclaim 20 COUNTERCLAIM - General o Economy, convenience, judicial resources – easier than new action  Should be allowed to amend pleadings to include CC  Lid Brokerage & Realty  BUT – Court can exclude CC if not efficient to plaintiffs action  Rule 27.08(2) – see below – opposition section o A defendant may assert any right or claim against the plaintiff including a claim for contribution or indemnity under the Negligence Act – does not have to relate to main action – neither does the relief!!  Rule 27.01(1) o A defendant who CC‟s may join as defendant to the counterclaim any other person, whether a party to the main action or not, who is necessary or proper party to the counterclaim  Rule 27.01(2) - Procedure o Rule 27.02  Counterclaim should be included in the same document as the statement of defence o Amendment  Rule 27.07(1)  Can amend to include counterclaim if against plaintiff or another person already party to the main action in accordance with regular amending rules – 26.02  Rule 27.07(2)  If amending to include a CC against party not in main action can do so with leave - Opposition to Counter Claim (through amendment) o Lid Brokerage  Leave should be granted unless the plaintiff can establish  Counterclaim if even delivered on time could have been struck out under Rule 21  Extenuating circumstances which would render it inequitable to grant leave (limitation period etc.)  Proposed counterclaim will be unduly complicated and delay trial of the main action – bad outweighs the good in joining claims o Costs should compensate the party delayed by not bringing the CC in the pleadings - Trial o Rule 27.08(1)  Tried at the trial of the main action  (2) Court may order severance if unduly complicate or delay the trial – or cause undue prejudice to a party - Compulsory Counter Claims – (not very mature in Canada) o Roque 21 - - - Not bringing a counterclaim in an action against you does not preclude you bring a separate claim later  POLICY  One should be able to decide when, within the limitation period, to assert their own claim – not be pre-empted by Rules Set-Off Judgment o Allowed under section 111 of the CJA – only for mutual debts  Legal set off – defence  Costs on success (BETTER STRATEGY THAN CC)  Equitable set-off – common law doctrine  Claim for unliquidated damages – no clear value  Must be inequitable to permit one to proceed with out considering the other o Difference ($) between claim and counter claim  If amounts are the same in the claim and the set off – judgment will be defaulted for the defendant and the plaintiffs action dismissed o Not just in PI cases with insurance companies  Wells o Set-off is not privy to limitation periods - More advantageous than CC in this respect. Abuse of Process CC o Bringing of an action , even if factually groundless, together with wrongful motives for bringing the action, are not sufficient to constitute the tort of abuse of process – Teledata  POLICY rationale by the court in this case  People should be able to assert their process without the fear of sanction beyond responsibility of cost  Counter o Bad policy argument – fill courts with frivolous law suits – could incite deep pocket plaintiffs to sue anyone they want for injunctive or monetary relief with only the fear of costs  Punitive element to dissuade? Or slippery slope argument that it might become impossible to define it‟s applicability o Cannot Counterclaim on the basis that the main action is an abuse of process  Beckingham Cost considerations o Mutually successful CC and Claim – each party entitled to costs o Preferable to use set-off as a defence rather than file CC because of beneficial costs consequences  DEFENCE TO COUNTERCLAIM 22 - Rule 27.05(2) o Issued in 20 days Defendant to counterclaim (original plaintiff) o May take third party proceedings  Rule 29.13 REPLY TO DEFENCE TO COUNTERCLAIM CROSSCLAIM - Rule 28.01(1) o A defendant may cross-claim against a co-defendant who,  (a) liability to the defendant in all or part of the plaintiffs claim  (b) independent claim arising  (i) related transaction or occurrence involved in the main action  (ii) related transaction or occurrence or series there of  (c) should be bound by the determination of an issue arising between the plaintiff and the defendant - Rule 28.01(2) o A defendant who claims contribution from a co-defendant under the Negligence Act shall do so by way of cross claim - Rule28.03 o Can amend SOD to include a crossclaim – in accordance with 26.02 - Rule 28.10 o Relief for plaintiff from cross claim if prejudice or unnecessary delay – on motion the court may order that the cross claim proceed as a separate action or on other such terms where it can be done without injustice to the parties in the crossclaim DEFENCE TO CROSSCLAIM REPLY TO DEFENCE TO CROSSCLAIM THIRD PARTY CLAIM - Person not named in the action and claim can be asserted against regardless of whether the plaintiff prevails against the defendant o Rule 29.01  A defendant may commence a third party claim against any person who is not a party to the action and who,  (a) liability in all or part of the plaintiffs claim  (b) independent claim arising o (i) related transaction or occurrence involved in the main action o (ii) related transaction or occurrence or series there of 23 - - - (c) should be bound by the determination of an issue arising between the plaintiff and the defendant o Judicial efficiency – now a general joinder device  Prevents multiplicity of proceedings and inconsistent findings  Court decisions between the plaintiff and the defendant bind the 3rd party (satisfies the mutuality requirement since they can defend against main action) rd o BUT - 3 party can participate in defence of plaintiffs claim – as such – not unfair to bind the third party  Can raise any defence open to the defendant and those not raised or contradictory  Smith v. Brown Seeking o Contribution  Third party pays any amount for which the defendant is liable to the plaintiff o Indemnity  Full compensation – Any amount owing to the plaintiff in damages, defendant costs and any costs having to be paid by defendant toward the plaintiffs costs  Right of indemnity based on relationships: o Agent by a principal for liabilities incurred in the course of the agency, o A guarantor by the principal debtor in respect of liability to the creditor under the guarantee to satisfy the debt – cosigner o Any contract by which one party agrees to indemnify the other (insurance) o A servant is liable to indemnify a master for a tort committed in the course of employment for which the master is vicariously responsible  Lister o Consensual bailment of auto – borrower indemnify the owner o Practical – Deny liability in SOD but issue third party claim, notwithstanding denial, claims indemnity from the third party for any losses PRACTICAL - INSURANCE o Carsewell  Court recognized right of insurance company to bring a 3rd party subrogation action in the name of it‟s insured in order to have access to discovery – subrogation would still operate only when and if defendant was found to be liable.  Rationale - “all parties involved in the same factual situation have their rights determined without a multiplicity of proceedings” Procedure - Rule 29.08(1)(2)  24 - o Third party action is placed on the trial list right after the main action o Claim tried at or immediately after trial of the main action PLAINTIFF RELIEF from 3rd party claim o Rule 29.09  Plaintiff can bring motion citing prejudice or unnecessary delay at the expense of the 3rd party claim – court may order that the claim proceed separately or other such orders that would not create an injustice THIRD PARTY DEFENCE - Options - 3rd party has to file SOD – Rule 29.03(a) o 20 days - Motion to strike out third party claim o Rule 20 or 21 - Rule of Law o NO 3P notice which is based solely on facts which, if proved, would provide a complete defence to the main action th - 4 party claim - Relief from 3rd party claim (by Plaintiff) o Rule 29.09  Plaintiff can bring motion citing prejudice or unnecessary delay at the expense of the 3rd party claim – court may order that the claim proceed separately or other such orders that would not create an injustice - Relief from Joinder o Rule 5.05 - General o Production and Discovery are the same REPLY TO THIRD PARTY DEFENCE ADDITION OF PARTIES (GENERALLY) - Joinder or Third Party - Motion to add/switch defendant mustn‟t be done too late o Prejudice to the plaintiff - Hannah 25 **Class Proceedings Why - Access to justice, improved judicial efficiency (only if the indiv. claims are viable), deterrent function of law - Rule 12.01 – Basis of Class Action o Where numerous persons have the same interests, one or more may bring or defend a proceeding on behalf of all - S. 35 of CPA o Rules of Civ. Pro. apply to class proceedings Commencement - CPA o 2(1) - Plaintiff can commence proceedings on behalf of class o 3 - Defendant may ask to group two or more claims be joined into class action o 4 - Any party to a proceeding against several defendants may ask that the proceeding being certified as a class proceeding and that a representative defendant be appointed Motion for CERTIFICATION is the major component of class action – usually never proceeds to trial – win or lose on certification. This is not a look at the merits of the case but rather that a class proceeding is the most appropriate way to prosecute the claim. Ontario Class Proceedings Act - Certification – Section 5(1) – Bold = Difficult o Claim must disclose a cause of action o Must be an identifiable class of two or more persons  Hollick  Not onerous to establish  Must be some indication that the class is not unduly broad  Show that the class could not be defined more narrowly without excluding some people who also share the community of interest seeking assertion and resolution o Must raise common issues (commonality requirement)  Rationale – common issues means preventing duplicate litigation  Western  A substantial ingredient of the class members‟ claims  Hollick  Common issue need not be „identical‟, but there should be shared issues of fact or law o Must be the preferable procedure for resolving these common issues (preferability requirement) o There is a representative Plaintiff or Defendant 26 Must fairly and adequately represent the interests of the class and be able to adduce evidence to support each part of the test except the cause of action test  Hollick  Not have a conflict on the common issues with the other class members  Must have a workable plan for the processing the action and notifying the class o ALSO CONSIDER – added some breadth to the perferability consideration  Rumley  5 new factors to consider: o Do the common questions predominate over individual questions  Is the common issue too general…must dominate! o Whether a significant number of the members of the class have an valid interest in individually controlling the prosecution of separate actions  Access to justice argument o Whether the class proceedings would involve claims that are or would be the subject of other proceedings o Whether other means of resolving the claims are either less practical or less efficient o Whether the administration of the class proceedings would create greater difficulties than those that would likely to be experienced if relief were sought by other means (joinder)  BUT – Could argue that this decision is too BC specific to apply to Ontario but SCC and binding the way it talks of preferability o CAUTION – HOLLICK  Turned on PREFERABILITY test  Court noted that this aspect of the test should be looked at through the lens of the three policy reasons for class action o Access to justice, Improved judicial efficiency, Deterrent function of law  2 Points to consider in preferability test  Whether or not the class proceeding would be a fair, efficient and manageable method of advancing the claim  Preferable to other alternative procedures such as joinder, test cases, consolidation and so on  27 - Seems to raise the bar on certification  Court found that the claim fund provided an avenue for the unviable claims and if they weren‟t using the fund then likely the claims were viable o Another course of compensation outside of courts should be necessarily deferred to  Issue here is, such an analysis engages a look at the merits of the case – this is not considered in 5(1) – created a on/off switch of judicial discretion o Even if statutory considerations are met  See WESTERN - below o Certification for Settlement?  The common issue requirement and the preferable procedure requirement are more easily satisfied when certification is for the purpose of settlement  Bona Foods Ltd. o Limitation Periods  Section 28 – Limitation periods stop from the moment of certification o HYPOTHETICAL  If the CPA didn‟t exist would have to look at Western – courts must fill the legislative void under their inherent power to settle the rules of practice  Apply four comm. between provincial class action leg. o Identification of class o Commonality of fact and law  Question should be approached purposively  Will it avoid duplication of fact finding or legal analysis  An issue will be common only when it‟s resolution is necessary for each class member to satisfy their claim  Common issues to not have to be majoritarian or determinative of each class members claim o Common success  Success for one and for all o Representative must adequately represent the class  Motivation  Competence of council  Capacity to bear costs  Need not be typical or the best of the class Defence to Certification – in the prelims of certification motion – Western o Defendant could argue under Western that certification should not be allowed and that the action not proceed  28 - - - Defendant may wish to raise different defenses with respect to different class members  May be necessary to examine each class member in discovery  May not be commonality in issues  Proposed claims may be so small that joinder would be a better solution o CANNOT be defeated for the following reasons – Section 6 - CPA  1. The relief claimed includes a demand for money damages that would require individual assessment after determination of the common issues  2. The relief claimed relates to separate contracts involving different members of the class  3. Different class members seek different remedies  4. The number of class members or the identity of every class member is unknown  5. The class includes subgroups that have claims or defenses that raise common issues not shared by all members of the class o Practical  Once certification is achieved settlement is not far off – Court in their certification has made an inherent judgment of the case National Classes o Not limited to Ontario – can bring in plaintiffs from provinces that don‟t have CA legislation NOTICE o s.17(1) - Once the action is certified, notice of the action is to be given by the representative party to the class members (advertising, leafleting, publishing, etc). o s.17(2) - Court can dispense with notice where appropriate  However, where class members are required to participate in the determination of individual issues (eg. assessment of damages), notice is mandatory. o s.21 - The court may even require the D to deliver the notice where this is more practical o s.22(1). The court may order that the costs of notification be paid by either party or apportioned between parties Opt-Out o Only way out once the proceeding has been commenced – you are assumed to be in the class until you opt out o Section 9  Any member of a class involved in a class proceeding may opt out of the proceeding in the manner and within the time specified in the certification order o PRACTICAL  Some opt-out because the damages $$ would be more if action was pursued individually  29 o BUT - Res Judicata – Get neither the benefit or the burden of the class action Discovery o Limited to named parties (Representative plaintiff)  May request leave to discover other class members after discovering the representative  Section 15(3) – Factors to be considered: (a) the stage of the class proceeding and the issues to be determined at that stage; (b) the presence of subclasses (strong argument); (c) whether the discovery is necessary in view of the claims or defences of the party seeking leave; (d) the approximate monetary value of individual claims, if any; (e) whether discovery would result in oppression or in undue annoyance, burden or expense for the class members sought to be discovered; and (f) any other matter the court considers relevant. – BASKET CLAUSE - DISCRETION o Def. can allege that the rep. plaintiff is not rep.  Courts are fairly liberal if it is just  Can use this as a benchmark to establish that common issues do not prevail and that it is not the preferable means to proceed o CANNOT discover non-parties – Rule 12.03(2) Settlements (or discontinuance) o Must be approved by court, otherwise not binding – S. 29(2) – CPA  Both counsel are present  Class members can object – BUT – this right may be contracted out  High judicial intervention since the client monitoring function is absent and since the settlement affects a large number of people o The common issue requirement and the preferable procedure requirement are more easily satisfied when certification is for the purpose of settlement  Bona Foods Ltd. o General  Non-settling defendants have no general right to involve themselves in the settlement to which they are not parties  Gariepsy o Considerations for approval of settlement – Gariepsy (from Dabbs)  Fair, reasonable and in the best interests of the whole class  Likelihood of recovery, or likelihood of success  Amount and nature of discovery evidence  Settlement terms and conditions  Recommendation and experience of counsel  Future expense and likely duration of litigation - 30 -  Recommendation of neutral parties…if any  Number of objectors and nature of objections  The presence of good faith and the absence of collusion o Reversionary settlement (Coupon settlement)  Claimants can apply to get % reimbursement of their cost – left over in fund at a certain point reverts to the funding company o PRACTICAL AND POLICY  Conflict of interest at settlement and class counsel hearings – whose interests are actually being represented – Should there be a third party monitoring? Trial o Establish liability first – common issue Damages o S. 24(1) CPA – ASSESSMENT OF DAMAGES  Individual proof and assessment - individual case by case  Webb????????  Aggregate assessment of damages – RARE (inaccurate)  (c) Must be fact appropriate – must be able to reasonably determine without proof by individual class members o Distribution  Individual – Smaller class/Bigger claims  Average amount – Bigger class  Cy-pres  Applies money to the benefit of people that may not be included in the class – diff. in finding proper class Costs o Can be awarded against only representative plaintiff except if the court is of the view that the action was a “test case, raised a novel point of law or involved a matter of public interest”  Few significant cost awards have been made against plaintiffs  OLRC – Recommends costs only if the action was frivolous o Ontario Class Proceedings Fund – section 59.1(1)(2) – Law Society Act  If plaintiff applies to and receives assistance from the fund – fund becomes liable for costs  BUT – have to pay in 10% of settlement if win – practical reality – no one applies – only 6 to date o Class counsel usually don‟t explain costs or indemnify them  Higher risk now for costs against rep. plaintiff  POLICY o Could incite „deep pocket‟ strategy  PRACTICAL 31 - o Find judgment proof plaintiffs o Indemnification o Class Counsel Fees – MUST BE COURT APPROVED  S. 32(1) – CPA – IN WRITING!!  (a) State terms under which the fees and disbursements will be paid  (b) Estimate of the expected fee, whether contingent on success or not  (c) State the method by which payment is to be made, whether by lump sum, salary or otherwise  S. 32(2)  An agreement respecting fees/disbursements is not enforceable without court approval  S. 33(1)  Despite Solicitor Act and Champerty Act a solicitor and class rep may enter into a written agreement for fees/disbursements only in the event of success in class proceedings o (2) Interpretation: success in class proceeding  a) a judgment on common issues in favour of some or all class members and,  b) a settlement that benefits one or more class members o (4) Agreement under (1) may permit to have fees increased by multiplier.  Multiplier compensates the lawyer for the risk of engaging in potentially unsuccessful litigation. Creates incentives to take on class proceedings.  Gagne (Application of test affirmed in Parsons) o Three considerations for assessing fair and reasonable fee compensation (multiplier):  1) Percentage of gross recovery, base fee high, should have low multiplier.  2) Multiplier range: slightly greater than 1 to 3 or 4 in the most deserving case.  3) Retainer, and whether fees will create economic incentive to take on class actions 32 6. Service Rule 16: Service of Documents - 16.01 o (1) (Originating Process) originating process shall be served personally as provided in 16.02 or by alternative in 16.03. o (2) party not served with originating process but delivers defence, shall be deemed to have been served o (3) (All other documents) do not require personal service. Permit service by fax or email (16.01(4)). - 16.02(1) (Personal service required) o a) individual: on an ind, leave copy with ind o b)municipality: leave copy with chairman, mayor, warden, solicitor or clerk of municipality o c) corporation: leave document with officer, director, or agent of corporation or with person at any place of business of corporation with control/management o e) person outside Ont doing business in Ont: leave document with anyone carrying on business in Ont for person o h) Attorney General: leave copy in Crown Law office o i) absentee: litigation guardian or Public Guardian and Trustee j) minor: litigation guardian o k) mental: with person or guardian m) partnership: on partner - 16.03 (Alternative to Personal Service) where Rules or court order permit alternative to personal service: o (2) acceptance of service by solicitor, only where solicitor endorses document upon acceptance o (4) service by mail to last known address with acknowledgement of receipt card o (5) service at place of residence leaved sealed envelop with adult member of household o (6) service on corporation, by mail on corporation where cannot be found at registered address. - 16.04 (Substitute Service): where it appears to court impractical to prompt personal service court may make order for substituted service, or where necessary in the interest of justice court may dispense with service. o May make substituted service order where it would be dangerous  Must be expert evidence of this – not simply an affidavit saying you‟re scared – Gallacher  POLICY – this could have a deterrent effect or alternatively a dangerous outcome to the person serving o Obviously the nature of the act incites tension - Rule14.08 o Six months to serve SOC  BUT – if fail to serve – court can extend time limits 33   See below BUT AGAIN  If now passed Limitation - Buleychuck o Plaintiff can only rebut prejudice if special circumstances or exceptional circumstances exist (Deaville) o Allowed in this case - no indication that the defendant would have been prejudiced as a result of the late service – defendant admitted this!!  The basic consideration in these matter is whether the renewal post diem will advance the just resolution of the dispute, without prejudice or unfairness to the parties  Laurin - - Rule 2.01(1) o A failure to comply with the rules does not create a nullity  (a) May grant all necessary amendments or other relief in order to secure the just determination of the real matters in the dispute Rule 3.02(1) o Courts can extend time under the rules (generally - any time – any rule) o If passed a limitation period  See above 7. Case Management Only 5-10% of civil actions are settled at trial Typical lawsuit costs each party 38k and takes 5years for a settlement of 50k Rules of Professional Conduct o Rule 3, commentary 5  The lawyer should advise an encourage the client to compromise or settle a dispute whenever it is possible to do so on a reasonable basis Rule 77.02 - Rationale for case management o Reduce unnecessary cost and delay in civil litigation  Access to justice o Facilitate early and fair settlement o Bring proceedings expeditiously to a just determination while allowing sufficient time for the conduct of the proceeding  Transfers principle responsibility for management of the pace of litigation to the judiciary - General - Rule 77 – Ottawa, Essex County - Rule 78 – Toronto (actions after Dec. 31st 2004) 34 o Can be assigned to 77 track Application of Rule 77 Case Management - Generally o Doesn‟t apply to certain family law, construction lien, or bankruptcy matters o All cases falling under this regime are relegated to a mandatory 3 hour mediation early in the action pursuant to Rule 24.1 o Three types of judicial conference under Rule 77  Case conference  Time table creation etc.  Settlement conference  Scheduled at defined intervals – vary depending on track  Trial-management conference  Ensure efficient trial - Choice of Tracks – Rule 77.06(5) o Fast track or standard track (5 or 8 months)  Must consider:  (a) The complexity of the issues of fact or law  (b) The likely expense to the parties  (c) The importance to the public of the issues of fact or law  (d) The number of parties or prospective parties  (e) The amount of intervention by the case management judge that the proceeding is likely to require  (f) The time required for proper discovery, if applicable, and preparation for trial or hearing o PRACTICAL – Deep pocket def. don‟t like fast – argue case unsuitable - Change of Tracks – Rule 77.07(1) o On Motion and (a) before the close of pleadings (action) or (b) on the 10th day after the first affidavit has been filed by the respondent (application) - Dismissal by Registar – Rule 77.08(1) o Where no defence has been filed and the proceeding has not been disposed of by final order or judgment, the registrar shall, 180 days after the date of issue of the originating process, make an order dismissing the proceeding as abandoned  Order can be set aside if there is no prejudice to the defendant  Graff (Litigation Guardian of)  Can‟t wait too long – 18 months – too long  Hayes - Assignment to Case Management Judge/Team – Rule 77.09.1 o After receipt of defence the case is referred to a team which includes the judge who will conduct the settlement conference (will not be the trial judge) - Compliance with Timetables – Rule 77.10(1) o Failure to comply – case conference will be held – potential consequences for not respecting timelines 35 - - - - - Case Management Powers – Rule 77.11 – judge or master o (a) extend or abridge a time prescribed by an order or in the rules o (b) transfer a proceeding from one track to another o (c) adjourn a case conference o (d) set aside an order made by the registrar o (e) make orders, impose terms, give directions and award costs as necessary to carry out the purpose of this Rule Motions – Rule 77.12 o Made to case management judge or master only  hoped to streamline motions by relaxing some of the requirements (ie no supporting materials like affidavits, teleconference, in front of registrar)  Unless a motion to transfer to case management – then need full supporting materials o Tibbits Case Conference – Rule 77.13 o On judge/master initiative or party request  Revising timetable, admin. details etc. Settlement Conference – Rule 77.14 o Mandatory – before judge or master – discoveries and motions must be completed (need to be in the best position to settle) – judge will give predictive advice based on written briefs supplied by parties  Potential for strong arming if no settlement is reached Trial Management Conference – Rule 77.15 o Ensures smooth structure of trial in as little time as possible – decide on number of days, # of witnesses Application of Rule 78 Case Management o Toronto – New civil cases - Dec. 31st 2004 and after o Rule 78.12 – Bring case under Rule 77  (1) On consent of all parties in writing, motion – (2) Judge/masters own initiative or motion of party if there has been chronic delay (obstruction)  Can bring case under Rule 77 case management - must meet one of the following criteria (Tibbits):  There are complex factual or legal issues o Extraordinary production or discovery issues  The litigation is a matter of public interest  There are numerous parties or numerous related proceedings  There is chronic and substantial obstruction to the timely disposition of the action 36 History and anticipated need for interlocutory proceedings or other interventions  Whether any parallel proceedings exist  Evidence of the appropriate nature and timing of ADR options o Mandatory mediation – but not Rule 24.1 steez  Parties are still required to conduct meditation but they are free to determine the timing of the mediation, they are expected to conduct it at the earliest stage at which it is likely to be effective  But no longer than 90 days after the action is set down for trial o Wrongful dismissal and SP within 150 days of the close of pleadings  37 Rule 77: Case Management Timelines: Fast and Standard Track Defended Actions1 A. Standard Track Defended Actions: Event Case Conferences (throughout proceeding) Mandatory Mediation Trigger Optional: Parties, judge or master Rule 24.1 90 days from filing of first defence 150 days from filing of first defence 30 days after unsuccessful mediation or after order exempting case from mediation Settlement Conference Deadline Presider Case Mgmt. Master/Judge Mediator Mandatory Med‟n Parties Postponed on Consent Case Conference to establish Litigation Timetable (req. by plaintiff) Optional: Plaint. files litigation timetable or requests case conference to establish Mediator C.M. Master/Judge Parties Must Complete all Discovery before Settlement Conference: production of documents, examinations, experts‟ reports and all motions surrounding discovery Settlement Conference (assigns trial date) Trial Management Conference Automatically 240 days from filing Scheduled by of first defence Registrar Optional: Parties, Judge or C.M.Master C.M. Master/Judge C.M. Master/Judge 1 Note: Where no defence has been filed and the proceeding has not been disposed of by final order or judgment within 180 days of commencement, the registrar shall dismiss the proceedings. 38 B. Fast Track Defended Actions: Event Case Conferences (throughout proceeding) Mandatory Mediation (no postponement on consent) Case Conference to establish Litigation Timetable Trigger Optional: Parties, judge or master Rule 24.1 90 days from filing of first defence 30 days after unsuccessful mediation or after order exempting case from med‟n Settlement Conference Deadline Presider Case Mgmt. Master/Judge Mediator Optional: Plaint. files litigation timetable or requests case conference to establish C.M. Master/Judge Parties Must Complete all Discovery before Settlement Conference: production of documents, examinations, experts‟ reports and all motions surrounding discovery Settlement Conference (assigns trial date) Trial Management Conference Trial Automatically 150 days from filing Scheduled by of first defence Registrar Optional: Parties, Judge or C.M. Master C.M. Master/Judge C.M. Master/Judge Trial Judge 39 Mandatory Mediation - Rule 24.1.01 (Purpose) o Establish a pilot project for mandatory mediation in case managed actions, in order to reduce cost and delay in litigation and facilitate early/fair resolution - Rule 24.1.04(1) (Scope) o Applies to action which are a) commenced in i) the City of Toronto on or after January 4th, 1999 ii) Ottawa-Carleton region iii) City of Ottawa Jan 1, 2001 - Rule 24.1.05 (Exemption from Mediation) o The court may make an order on a party‟s motion exempting the action from this rule  O. (G.) v. H. (C.D.)  Criteria for exemption: o Parties have already engaged in ADR o Matter of public interest – adjudication in order to establish an authority which will be persuasive if not binding on other cases o Low sum – low complexity – amenable to a settlement conference presided over by a judicial officer without examination for discovery o Whether one of the litigant is out of province and not readily available o Whether the exemption would reduce cost or delay in litigation and facilitating early and fair resolution  Denied - Despite fear of being in the same room as Defendant o Court held sufficient alternatives - Rule 24.1.09 (Mediation Session) o (1) Time limit mediation session shall take place within 90 days after the first defence has been filed, unless court orders otherwise. o (2) Extension or Abridgement court will consider circumstances, including: # of parties, complexity of issues, state of pleadings, whether greater than 90 days will lead to success o (4) Selection of mediator filed with registrar within 30 days of receiving defence o (7) assigned mediator shall immediately fix a date for mediation and 20 days before date provide date & time notice - Rule 24.1.10 – Statement of Issues o (1) Statement of issues must be filed with mediator and opposite counsel one week prior to mediation  Position and objectives  (5) If this is not done or they fail to show within 30 minutes of the scheduled time the mediator can issue a certificate of non-compliance o Repercussions: 40  CM judge or master will order case conference and might dismiss the action, strike out the SOD, …costs  Patrus o Duty to contact mediator or court to extend time for mediation - - - Rule 24.1.14 (Confidentiality) o All communications at a mediation session and the mediator's notes and records shall be deemed to be without prejudice settlement discussions  Rogacki – Support for policy reasons o BUT – Rudd – Benefit gained by disclosure that is greater than any injury to the mediation process by the disclosure of the discussions  Very little impairment in this case and the mediator was allowed to be examined on the specific issue Delay o Rundle  Not allowed just because discoveries haven‟t happened  Court held med‟n is perfect to tell story – less adversarial PRACTICAL o According to Hann et al. there is a higher proportion of cases being settled earlier in the litigation process Criticism of ADR and Settlement –Morrison and Mosher/Fiss - Effective for ongoing disputes, BUT - power imbalance (lack of resources to accurately assess chance in litigation), lack of precedent, could create two tier system, no injunctive solutions 8. Settlements Rule 49: Offers to Settle – Form 49A - D should raise offer a bit over actual value of case, P should lower expected number. o Effect of Rule 49 is to bring parties closer to a value which would facilitate settlement. - Four criteria for offer - can be made by P, D, or 3rd party o 1) offer has to be in writing - 49.02 o 2) has to be left open until the trial (ie. expiration after "opening of 1st minute of trial") - (unless written notice of withdrawal – 49.04) o 3) has to be served at least 7 days before the trial for 49.10 to be applicable – 49.03 o 4) has to be for a certain amount - Rule 49.01 (Definitions) o D includes R, P includes A. 41 - - - - - Rule 49.02 (Where Available) o Any party may serve on another a written offer to settle any one or more of the claims in a proceeding on the terms set out in the offer Rule 49.03 (Time for Making Offer) o Offer may be made at any time but where made less than 7 days before the hearing, the costs consequences of 49.10 do not apply. Rule 49.04 (Withdrawal/Expiry of Offer) o 1) Withdrawal offer may be revoked at any time before accepted by serving written notice of withdrawal o 2) Time limit if offer includes a time limitation for acceptance, deemed withdrawn after o 3) Court disposal of claim offer may not be accepted after court disposes of the claim. Rule 49.06 (Disclosure to Court) o 1) no statement included in pleadings o 2) where not accepted, no communication or filing shall be disclosed until case determined, at costs stage. Rule 49.10 (Cost Consequences) – NOT in effect if offer is within 7 days of trial o P's offer (1):  P recovery is equal to or greater than P's offer to settle, receives partial indemnity costs up to the date of offer, substantial indemnity after.  If P's recovery is more than any D offer but less than any P offer, usually will receive partial indemnity costs throughout the action. o D's offer(2):  P recovery is equal to or less than D's offer, P receives partial indemnity costs up to date of offer service and D receives partial indemnity costs after that date.  If P's action is dismissed, D will usually receive partial indemnity costs throughout action. o Burden of Proof  Of the favorability of the settlement is on the party who claims the benefit of the rule o Some discretion also built into this rule  CL on offers and costs  Needs to be more than token offer  Walker Estate  Good faith is not considered  Morden J: the good faith of the party who did not accept an offer should be not be given significant weight when assessing whether the interest of justice requires a departure from the rule. The policy behind the rule and the importance of reasonable predictability and even application of the rule are paramount. o Niagara Structural Steel 42  Court might use the lack of compromise in the offer to engage it‟s discretion to “order otherwise” under 49.10  Data General (Canada) Ltd - - Rule 49.13 (Discretion of Court) o Despite 49.03 and 49.10 the court may exercise its discretion with respect to costs and take into account any offer to settle made in writing, the date the offer was made, and the terms of the offer  Where the conditions of 49.10 are not met, rule 49.13 does not confer a wide discretion to award substantial indemnity costs Acceptance of Offer o Binding contract  Responding with rejection or counter off does not kill the 49a offer as I would at CL – alive until specifically withdrawn by offeror or court resolves claim 9. Motions and Disposition without a trial Motions - Rule 37 o Notice of motion – Rule 37.06 – Must be served to any party affected by the proceedings unless; ex parte (default proceeding) – can mail etc  Precise relief sought  Grounds to be argued, incl. ref. to any stat. provision/rule to be relied upon; and  The documentary evidence to be used at the hearing of the motion. (i.e. transcript from discovery) – supporting materials  Usually affidavit evidence on a motion – 1st person writing by deponent – they are subject to cross examination  Oral evidence is permitted only in exceptional cases  NB – No evidence on Rule 21 motion o Location of Hearing – Rule 37.03  Without Notice  County where proceeding was commenced, where any party resides, or where the office of the solicitor of record for any party is located  With Notice  County where the office of the solicitor for any responding party is located or where a responding party who acts in person resides  BUT – Rule 37.03(2) o If no resp. party in Ontario – then in county where proceeding was commenced, or where the office of the solicitor of record for any party is located 43 o EXECEPTIONS FOR LOCATION:  Where the parties otherwise agree;  Where a motion is already pending in a place named in acc. with the foregoing rule, any other party may make a motion at the same place and time to the same judge or Master,  Where, on the grounds of urgency, hardship or for another sufficient reason, the court may grant leave for the hearing of a motion at a place elsewhere than provided in the foregoing rules (DISCRETION) o Motion Record – Rule 37.10(2) – MUST INCLUDE:  A table of contents,  A copy of the notice of motion,  A copy of all affidavits and other material served by any party for use on the motion,  A list of all relevant transcripts of evidence in chronological order (not necessarily the transcripts themselves), and  A copy of any other material in the court file required for the hearing of the motion. o Costs  S. 131 – CJA – Authority for costs at any step in a proceeding – court discretion – court may determine who  Rule 57.03(1) – Pay within 30 days – unless other just alter.  Costs in the Cause – awarded to party who gets costs on the entire proceeding  Costs to a Specified party in the Cause – named party is entitled to costs of the motion if that party succeeds in getting costs on the proceeding  Costs to a Party in any Event of the Cause – Named party gets motion costs regardless of outcome of proceeding  Costs Fixed in the Amount of $X – common – entitles the party to have costs fixed right after the hearing of the motion  Costs Payable Forthwith after Assessment Thereof – Entitles the party to have assessment and payment right then – regardless of stage of proceeding  Costs Reserved to the Trial Judge – reserved for disposition of trial judge  No Costs – court orders that no costs be paid in ass. with motion 44 Interim Substantive Relief - Interlocutory Injunction – Rule 40.01 o Just and convenient – s. 101 CJA o Rule  An interlocutory injunction or mandatory order under section 101 or 102 of the CJA may be obtained on motion to a judge by a party to a pending or intended proceeding  3 Part Test – RJR MacDonald Inc.  Is there a serious question to be tried? o Determined on a common sense basis – extremely limited merits review o However a detailed merits review will take place where the result of the motion will, in effect, amount to a final determination and where the only issue is a simple question of law, (or possibly) where the factual record is largely settled  Will the applicant suffer irreparable harm if the injunction is not granted?  Which party will suffer the greater harm from granting or refusing the remedy pending a decision on the merits? - Certificate of Pending Litigation Respecting Real Property o Rule 42 - Registered against land title – public notice of claim to interest in the land – “lis pendends” - Interim Preservation and Recovery of Property o Rule 44 - Recovery of property (replevin) – might have to post security o Rule 45 - Power to grant the preservation, inspection, or custody of any personal property that is relevant to the subject matter of the litigation - Duality of Concerns o Right of party on interim basis vs. potential prejudice on substantive outcome  Would granting the injunction on an interlocutory basis pre-empt the courts decision in the main action? o PRACTICAL – Courts focus on procedural and equitable factors not merits of the case – minimize prejudice Disposition without trial - Rule 20 – Summary Judgement - Missing Facts – Motion After Discovery o Purpose  „The essential purpose of summary judgment is to isolate, and then terminate, claims and defences that are factually unsupported‟  Dawson  Material fact – result of proceeding must turn on its existence  Agunoie  Motion after Discovery – evidence does not support and prove the material allegations of the pleadings 45 - o Test:  Rule 20.04(2) provides that summary judgment SHALL be granted by the court where “it is satisfied that there is no genuine issue for trial with respect to a claim or defence”  Genuine Issue must be related to material fact  No evidence to support allegations in SOC or SOD  PRACTICAL – After discovery – written evidence on motion – can use discovery transcripts  BUT – Irving Ungerman  Credibility issues not to be resolved by motions judge – facts could be word against word o Motion judge to determine if there is a genuine (not spurious) issue for trial; that there is no issue of fact that requires a trial for resolution  Burden is on moving party  BUT AGAIN! – Rogers Cable o Party must put their "best foot forward" which goes together with the requirement that the motions judge take a "hard look at the merits of the action" to assess whether genuine trial issue o Genuine issue of credibility only precluded from motion judge o Rebuttal (responding party)  Rule 20.04(1) - Can‟t rely on allegations or denials of pleadings – affidavit or evidence of specific facts showing genuine issue for trial  CANNOT say that you require discovery of more evidence at trial  645953 Ontario Inc. o If Refused…or allowed in part…  Rule 20.05(1)(a) – May be put on list for a speedy trial if court has made order that some material facts are not in dispute  Rule 20.06(1)  No SJ – SI costs on motion –court can use discretion to find motion reasonable Rule 21 – Motion to Strike – Missing Law (substantive adequacy) – after plds. o General  No evidence – factum  Similar requirement to Rule 22  Only in clear cases and only a judge – Nelles, Jane Doe  PRACTICAL – Spending money to fix pleadings – perhaps just call counsel – judge will likely allow amendment of pleadings  Must do before you fire you‟re response (SOD or reply)  Substantial level of judicial discretion  SOC must be read favorably for the plaintiff o Operation Dismantle Inc. 46 Must be satisfied that it is plain and obvious that the plaintiff cannot succeed o Dawson  POLICY – what about novel claims?  PRACTICAL – Sometimes you let the deficient pleadings proceed and wait until trial to say it is not in the pleadings - would have to amend – deep pocket strategy o 3 Parts to Application  Rule 21.01(1)(a): Determination of an Issue of Law  Determination before trial of a question of law raised in the pleading – any party – no evidence – except on leave  Similar requirement to Rule 22 o Application of the rule must dispose of all or part o of the action or substantially shorten the trial or result in a substantial saving of costs  Rule 21.01(1)(b): Striking Out for Failure to Disclose Reasonable Cause of Action – No evidence  1) Pleading must disclose a cause of action, novelty of the cause is of no concern  2) The material facts pleaded are to be taken as proven provided not speculative or assumed  3) If the claim has some chance of success the action is allowed to proceed  4) Claim must be read as generously as possible, accounting for drafting deficiencies  Rule 21.01(3): Additional Grounds for Defendant to Stay/Dismiss Action  Jurisdiction, legal capacity (defendant or plaintiff) Special Cases (Stated Case) – Question of Law - Rule 22 – Must be mutual agreement for use and mutual agreement on the state of facts o Party, action or application, by motion, can state a question of law in the form of a „special case‟ for the opinion of the court o PRACTICAL  Deep pocket defendants likely not going to agree to use if there is a potential that the question will not be decided in their favour – Do not want to give the other party a chance to resolve an issue in a low cost fashion, would not be benefiting from their deep pocket advantage o Rule 22.01(2) - Grounds  Judge may hear and determine a special case if he or she is satisfied that the determination of the question may:  Dispose of all or part of the proceeding,  Substantially shorten the hearing, or  Result in a substantial saving of costs 47   **No academic, hypo, moot, purposeless or spec. questions o Rule 22.03(1)  Special case heard directly by COA when above criteria – PLUS:  Conflicting trial court decisions in Ontario - no appeal dec.  Conflict between an Ontario appellate decision(s) and an appellate court in another province, or among appellate decisions in other provinces; or  One of the parties seeks to establish that an Ontario appellate decision should not be followed o IMPORTANT  Issues determined on special case cannot be relitigated in the proceeding  RES JUDICATA Default Proceedings - Rule 19 – Fails to respond to SOC in time (20 days) o Time for response has expired o Plaintiff file proof of service with a request that cuts off the ability of the defendant to respond (requisition the registrar to note the defendant into default) o Default - Deem the defendant to have admitted all allegations in the SOC o The defendant is not entitled to notice of further steps in the action except in specified situations  Relief sought is liquidated where the amount can be ascertained by calculation/fixed by scale or other positive data - Rule 19.02(3)  If SOD goes into default  Defendant deemed to admit the truth of all the allegations in the SOC  Defendant no longer entitled to notice of any step in the proceeding, will hear next on enforcement – unless for a reason noted in Rule 19.02(3)  Defendant can‟t do anything but bring a motion to set aside default proceedings (Rule 19.03); or judgement (Rule 19.08).  Plaintiff can then:  Ask the registrar to sign judgement o Rule 19.04(1)  If a debt or a liquidated amount (cash)  Limits fact finding of registrar  Bring a motion for judgment to the court on the SOC – if not liquidated amount o Rule 19.05  Some degree of fact finding required – value finding etc. 48 - Rule 19.08 - Set aside DP – Lenskis ( in this case the defendant was medicated at the time and poor, no counsel, didn‟t want husband to find out about proceedings – defendant then won lottery – case settled on dismissal of motion to set aside DP – no defence and argument of duress and medication weren‟t applicable to the settlement negotiations) – FACTORS: o 1) The delay between the default and the noting pleadings closed o 2) The delay on the part of D between learning of default judgment and moving to set it aside o 3) The reason for the delay o 4) The prejudice, if any, which either or both of those delays caused the P o 5) Whether or not there was a matter disclosed which could afford a defence to the motion.  *substantive point, must explain delay and merits of case to justify setting aside. Dismissal for Delay and Non-Compliance - Rule 24.01 – Action dismissed BY DEFENDANT for (if not under default): o To serve the statement of claim on all D‟s within the prescribed time; o Note any defendant into default if no SOD within 30 days after the default o To set the action down for trial within six months after the close of pleadings; o To deliver a notice of readiness for pre-trial conference under Rule 76.08(1) (re: simplified procedure); o To move for leave to restore to a trial list an action that has been struck off the trial list, within 30 days after the action was struck off.  Plaintiff must have reasonable excuse (reasonable delay permitted)  BUT – Delay cannot be used to abuse process - Baksh  Def. not likely to succeed unless substantial risk of prejudice  Belanger Dismissal for Procedural Misconduct - Rule 2 – Umbrella Rule o Permits court to award any relief “on such terms as are just, to secure the just determination of the real matters in dispute”  PRACTICAL – Use all misconduct provisions – more the better Discontinuance, Withdrawal and Abandonment - Discontinuance – Rule 23.01 o Plaintiff can discontinue all/part of an action against any defendant  Before the close of pleadings: Right – Form 23A  After the close of pleadings – With leave  At any time – Consent in writing of all parties - Withdrawl – Rule 23.06 o Defendant may withdraw all or part of SOD by delivering notice to all parties – if withdraws all – noted into default 49 - Abandonment of Application – Rule 38.08 o May do so by delivering a notice of abandonment  Respondent entitled to costs unless court orders otherwise – WHAT RULE? 10. Discovery Function - Evidence is seen for the first time - Issue Defining - Notice Giving o Exchange of information - Take away element of surprise at trial - Encourages settlement - Creating evidence in testimony o Procure admissions to be relied on in trial - Sizing up witnesses and counsel Lawyers Duties with respect to Discovery – Rule 4.01(4) – R.P.C. - Explain - Necessity of full disclosure of all documents relating to any matter in issue - Explain - Duty to answer, to the best of his or her knowledge, information and belief, any proper question relating to any issue in the action or made discoverable by the rules. - Shall assist her client in fulfilling his or her obligations to make full disclosure; and (puts an onus on the lawyer to perform duty) - Shall not make frivolous requests for the production of documents or make frivolous demands for information at the examination for discovery Discovery of Documents Affidavit of Documents (SWORN) (Form 30A – Ind. & 30B – Corps.) o Rule 30.03(1) – Within 10 days of the close of pleadings – knowledge, information and belief of all documents related to any issue in action  Related = provide benefit/burden – Peter Kiewit Sons o Rule 30.03(4) – If rep. by lawyer – must certify they explained to client  Necc. of full disclosure and what kind of docs. would be relative o Schedules – Rule 30.03(2)  A = Existence of all documents with no objection to produce  B = Existence of all documents under privilege (and grounds!!) 50 - - - - Grounds – sufficient detail “allow court to make a prima facie decision - privilege been established from what appears on the face of the affidavit” – German, Grossman  C = Docs. no longer in possession – reasons when and how lost. o Incomplete or Improper Privilege– Rule 30.06  Court may order cross examination on AOD  Order service of “further and better” AOD – EXPENSIVE!!  Order disclosure/production of missing docs. if not privileged  Inspect document (court) to determine relevance or privilege o Sanctions – Disclosure/Production – Non-comply – Rule 30.08  If favorable – document can only be used on leave  Not favorable – court may “make such order as is just” General Scope o Rule 30.02(1) - Disclosure of the existence of all documents relative to the case - AND o Rule 30.02(2) - Production of all documents not protected by privilege on request – including insurance policies (30.03(3)) o Rule 30.01(1)(a)  Tape, video, film, pic, chart, graph, map, plan, survey, book of accounts, any info stored on electronic device o Peter Kiewit Sons – court may intervene where production is endless  In this case had a mini-adj. process to consider extent of prod. Inspection o Rule 30.04(1) – Party who serves request can inspect all Schedule A documents – production for inspection does not = admission of relevance o PRACTICAL – Can outspend the other party in inspection – no obligation to disclose the exact location of any document  Counter – send back AOD mark which documents to be copied Request to Admit (ANYTIME) – Rule 51.02 o Serve request to admit truth of a fact or authenticity of a document Continuing Discovery – Rule 30.07 o Duty for disclosure of new documents or correct inaccuracies in AOD Priv. Docs at Trial – Rule 30.09 o Have to give notice (relinquish priv.) 10 days after trial date is laid out if you are going to use at trial o EXCEPTION  Can maintain priv. and use if for impeachment  PRACTICAL – hide ammo under sched. B – lit. priv NON-PARTY PRODUCTION – Rule 30.10(1) o Allows – must satisfy 2 part TEST  Relevance - Relevant to a „material issue‟ –  Result of proceeding must turn on its existence - Agunoie  Fairness - unfair to proceed without o Issues: Confidentiality (Wood) o Factors to be considered (Stavro)  Importance of the documents in the litigation  51      Is production in discovery vs. trial necessary to avoid unfairness? Is discovery already adequate with respect to the issues to which the documents relate – if not – b/c of documents or other? The position of the non-parties with respect to production Availability of documents or their informational equivalent from other accessible source If the non party is an ally of your opposing party – should be more susceptible to a production order than a true stranger to the litigation Examination for Discovery General – Rule 31 o Under oath, must be notice, objections allowed, can be written (interrogatories) – but shite – usually drafted by lawyers Availability – Rule 31.03(1) o Discovery is available in every action (not applications) o Not for appeals – unless sig. change to pleadings or if order new trial Location – Rule 34.07(1) o If person to be examined resides outside of Ontario - court can dictate where the discovery is to be held and at whose expense o Rule 34.07(2)(a) Moving party can request a commission authorizing the taking of evidence before a named commissioner  (b) or a letter of request to the judiciary of the to be examined party, requesting an issuing of such process to compel the person to attend and be examined before the commission. Who may be discovered? o Rule 31.03(1) - Parties adverse in interest o Rule 31.03(2)(a) – Corporations – Officer, Director, Employee  Examining party chooses – other party can bring motion to change person for discovery (authority under the same rule)  Motion – likely need conflict of interest or prejudice - not enough that they are not the most knowledgeable person if they can easily get up to speed etc. – Clarkson Mews, CNR  TEST for who is Officer, D, E  person connected with company best informed of matters which may define or narrow the issues between the parties at the trial – Bell  Require CL def. of employee/employer – NO - Atherton  Independent contractors NO – Joseph Silaschi  Former officers and employees – NO RULE  Has happened – may need to show left to frustrate litigation o Hamilton Harbour  Un-bona fide resignations – Butler  Otherwise NOT allowed – Sudbury Downs - - - 52 - - - - o Rule 31.03(2)(b) - Second Officer, Director or Employee – on leave or consent of the other party  Unlikely on leave if other side warned 1st person wasn‟t best o Rule 31.03(3)(a) – Action against firm name – partner/sole prac. at time o Rule 31.03(5)(a) – Persons under disability- Litigation Guardian or (b) person under disability if they are competent to give evidence o Crown – NO RULE – Governed by Proceedings Against the Crown Act o Rule 31.10(2) – NON-PARTIES with leave – TEST (must satisfy all) :  (a) No other way to obtain information through entitled discoveries or from the person they seek the information  Court strict – confirmed in Carleton Condo  (b) Unfair to require the moving party to proceed without  (c) Examination will not (i) delay commencement of proceeding, (ii) entail unreasonable expense for other parties, (iii) result in unfairness the moving party seeks to examine Procedure o Transcript can be used by the party asking the questions (opposite party) o Lawyer makes sure questioning is fair and proper – only speak to object o Rule 34.19 – Discovery by video conference is permitted Scope – Rule 31.06(1) o Must be directed at the pleadings – elucidation of claim or defence – or with reference to a material fact in the pleadings  Liberal approach to what is relative - Forliti o CANNOT object on the following grounds (Same rule):  (a) The information sought is evidence;  (b) The question constitutes cross-examination, unless the question is directed solely at the credibility of the witness; or,  (c) The question constitutes cross-examination on the affidavit of documents of the party being examined. Type of Questions o Witness need not answer solicitation of opinions  EXCEPTION: Q‟s about their professional conduct and/or competence when it is an issue in the action  Must pertain to the areas of expertise of the individual  Hypo‟s may be put to the witness where the witness has some expertise in the area and the hypo relates to an issue in the case Answering Questions – Rule 31.06 o Best of his or her knowledge, information or belief – must be relevant  Knowledge (observation or participation)  Information (wasn‟t there but informed of the event)  Belief (infers a fact from personal knowledge or info. from others) o Obligations  Info. obtained from potential witnesses must be disclosed  Positive efforts to inform themselves from everyone on everything  Can‟t answer – undertake effort find out – List of undertakings o Privilege 53 - - - Husb. & Wife (no CL) –can speak of contents – not information Doc & Pat. – NO privilege all relevant info must be disclosed Lit. Priv. – Rule 31.06 – narrows the effect of LT  An examined party must disclose all facts/info relevant to the matters in issue EVEN IF contained in and learned of from LP document  POLICY – Litigation Privilege should not operate to frustrate the just and efficient resolution of the dispute – but rather create a window of protection so that the pursuit of defences and claims can be effected vigorously o Hickman, Chrsuz o Disclosure of Potential Witnesses – Rule 31.06(2)  Disclose name and address of those who have relevant info – combine with obligation under (1) – have to disclose details of evidence they might present o Expert Opinions – Rule 31.06(3)  CL – only experts can testify on opinion  Wide disclosure - “findings, opinions and conclusions” and factual basis of any expert engaged by the person being examined  BUT – UNFAV. OPINION - (a)(b) Opinion + Name/Address not when in contemplation of litigation and no other purpose AND when not going to be called to trial o Insurance Policies – Rule 31.06(4)  Discl.of existence, $$, conditions on avail., any info making it void o Divided Discovery – Rule 31.06(6)  Delay and protect info. until issue is determined and info relevant  Requires prejudice to not allow this delay Continuing Discovery – Rule 31.09(1) o Info to parties in writing on discovery – o Rule 31.09(2) - Receiving party can request info be sworn in affidavit or present party for further EFD o Rule 31.09(3) – Info. not disclosed  (a) If favourable - can‟t use at trial except with leave  (b) If unfavourable – court will order as see just Use at Trial o Rule 31.11(1) – Party may read into evidence any part of EFD coming from adverse party o Rule 31.11(2) – May be used to impeach witness – anyone can use  Must show witness prior inconsistent statement and allow response  Section 20 and 21 of Evidence Act o Rule 31.10(5) – Non-party transcript – only to impeach – not admissions o Rule 31.11(8) – Same parties and same subject matter – Different action – transcript can be used as evidence as if it had been taken in this action Physical Discovery o Inspection of Property – Rule 32 (rare)  If necc. for determination of issue    54 Need prob. that inspection will establish the position of one of the parties regarding a material fact o Physical/Medical Examination – Rule 33 and s. 105 – CJA  s. 105(2) – where physical or mental grounds in question, may order examination by one or more health practitioners  TEST (since other party will assert): o The allegation is relevant to a material issue in the proceeding; and, o There is good reason to believe that there is substance to the allegation  Rule 33 – Details of procedure  Privilege General o Onus on asserting party Solicitor/Client Privilege o Communication between for the purpose of giving or receiving legal advice  Notes taken for purpose of providing a legal opinion  McCarthy Tetrault o Current and past – not future wrongdoings o Privilege expands to cover all people who will assist the lawyer  Example - In-house legal opinion of the OHRC – Pritchard o Corporate clients  Canada - Broad protection for conf. communication emanating from an employee, regardless of position in hierarchy – provided the objective was to obtain legal advice Litigation Privilege o Documents produced or come into existence in contemplation or with a view to litigation o Anti-full disclosure  BUT – allows through prep. – wouldn‟t do certain things otherwise  Hickman, Chrusz o Test – Rigid and narrow scope – Lyle affirmed in Chrusz  Document was created with the dominant purpose of submission to a lawyer for use in litigation, actual or contemplated –  construed narrowly! – see below - 55 o Much narrower than S/C priv. – “modern perceptions of discoverability” – moving towards more open disclosure  Chrusz o POLICY  There is some contention amongst academics that Chrusz so narrowly limited LP that in order for a document to be afforded such protection it must have been created after AND with the reasonable contemplation of litigation o Issues from Chrusz:  Litigation privilege is a protection only against the adversary and only until termination of the litigation  Litigation privilege should a qualified one capable of being overridden where the harm to other societal interests in recognizing the privilege outweigh the benefit  Non-privileged documents (public documents) do not obtain LP status by being photocopied and place in lawyers brief o Oral Discovery – changes – see above Privilege on Grounds of Confidentiality (between unrecognized categories of privilege) – MORE FLEXIBLE APPROACH o This is NOT a test and application carved in stone – these considerations provide a general framework – then look at policy considerations and the requirement of fact finding - weigh and balanced on the basis of their relative importance to the particular case o Applicability Test (Slavutych – affirmed in Gruenke)  Confidentiality must have been ascribed to the communication  Must be an essential element to the full and satisfactory maintenance of the relationship between the parties  The relation must be one which, in the opinion of the community, ought to be diligently promoted (society want to protect)  The injury to the relation must be greater than the benefit thereby granted for the correct disposal of the litigation Implied/Deemed Undertakings – Rule 30.1.01(3) o Confidentiality in discovery (oral and doc.)  Risk of contempt o Implied undertaking rule  Cannot use documents obtained through discovery (but for discovery) for any purpose other than present litigation o BUT – Court can grant relief Rule 30.1.01(8) & Goodman  Greater injustice to other party – i.e. clearing ones name  Or in interest of justice o Also exceptions – Rule 30.1.01(4)  Can be used on consent - - 56 - Does NOT apply to evidence filed with the court, given or referred to during a hearing, or information obtained from evidence referred to in the two above situations  Court proceeding and evidence is public Settlement Privilege – Rule 49.05 & 49.06(2) o Rule 49.05  An offer to settle shall be deemed to be an offer of compromise made without prejudice o Rule 49.06(2)  Where an offer to settle is not accepted, no communication respecting the offer shall be made to the court at the hearing of the proceedings until all the questions of liability and the relief to be granted, other than costs, have been determined o Any communications with the specific objective of settlement even if the dispute has not evolved into an action  Field o If settlement is defaulted – some authority that the priv. is expired  Middlekamp  Depends on the ground for its claim  Under an approach that focuses on the relationship between the parties as opposes to the specific terms of the contract they have offered to, it is possible to assert that the privilege should continue to exist beyond the agreement itself  If one of the parties defaults, SP is said to be waived and the offended party may move for judgment on that settlement, using as evidence details of the formerly protected settlement communications o POLICY – This seems to provide parties with great incentive to not default – for fear that their confidential communications could be exposes  This is not unfair – the severity of the repercussions merely reflect the severity of defaulting on the settlement agreement o SP TEST:  A litigious dispute must be in existence or within contemplation  The communication must be made with the express or implied intention that regardless of result – would remain confidential  The purpose of the communication must be to attempt to effect a settlement (no actual number offer needed – otherwise SP would be ridiculously narrow) o Heritage Duty Free Shop  Breach of fiduciary duty – SP still recognized  57 11. Mode of Trial Judge or jury Jury o Decides issues of fact and judge decides issues of law Either party is entitled to have the case tried by a jury Civil juries are 6 people and the parties select the jurors o Challenge for cause – dismissal of juror for cause (can‟t be trivial) o Defendant Lawyer has 4 peremptory challenges – excuse juror without reason 12. Trial Plaintiff lawyer makes an opening statement o Outlines the case and the facts and how they are going to be proven o Examination in Chief  Defendant Lawyer then can cross examine  Plaintiff Lawyer can then re-examine Once the Plaintiff has called all their witnesses their case is closed Defendant can contend that the plaintiff lawyer has failed to adduce sufficient evidence to support the cause of action o Application for a non-suit (motion) o Judge will only rule on this if the defendant lawyer does not call any evidence if they do the judge will wait until it is heard  In any event will wait for the jury to consider the evidence to date Otherwise the defendant pursues their case and calls witnesses – same process o Plaintiff right to reply is restricted to meeting new issues raised by the defendant Both parties then have the opportunity to address the jury After the counsel has addressed the jury then the judge will deliver his charge o Will summarize the evidence and is allowed to assert an opinion as to what evidence is believable and what is not – must also caution the jury that they are to keep an open mind and that they may or may not reject the judges opinion o Judge will also instruct the jury on the law Counsel may object to the charge – and if the judge sustains the objection he will recall the jury and recharge on the point which the objection was made Judge may overrule the decision of the jury in a situation where the judge feels that the evidence does not support a jury acting reasonably, have found what they did Without jury the judgment is either rendered immediately orally or later in written form - - - - - 58 13. Enforcing Judgment Execution is the method of making a defendant pay o Seize the defendants property (Sheriff)  Sell at public sale and pay plaintiff If an injunction – if the defendant does not comply the plaintiff may apply to have them found in contempt of court - 14. Appeals Appellant submits a statement of fact and law that they rely on in the application for appeal Opposing party does the same Factual findings at trial are not contested o However admissibility of evidence can result in a new trial being ordered 15. Costs Retainer o High emphasis on written instructions  Fee arrangements in writing (must be fair and reasonable – Rule 2.08 of ROPC – DISBURSEMENTS TOO!)  Can or must be validated by the courts if assessment officer thinks is not fair and reasonable (s.17) o SA – Section 18  Only on business to be done in courts – not small claims courts o Expresses the ambit of legal services to be provided and should be, in contentious manners, be given with respect to specific proceedings o Existence of retainer must be proven by Lawyer  Roberts v. Kroll Solicitors Bill o Detailed or General o Interim accounts are sent out and monies moved in and out of trust (bills must be sent out first) Assessment of the Solicitors Account o Solicitors Act allows client or solicitor to bring before the court – must not be a dispute of retainer – solicitor must bring an action if in dispute  Re Solicitor - - 59 - o Lawyers are not to be bound by the estimate – changes must be confirmed – or be bound  Cohen v. Kealey o Court officer decision has the effect of a judgment  Solicitors Lien – s. 34 – Solicitors Act  Entitles the solicitor, even without assessment, to retain possession of the client‟s property – case file, books etc. including the proceeds of a judgment o Relief can be granted if manifestly unfair  Re Gladstone Costs at Trial or on Motion o Rule 57.01(3)(7)  Requires court to devise and adopt the simplest, least expensive and most expeditious process for fixing costs  May appear before judge or make oral or written submissions o Rule 57.01(3.1)  Court may defer fixing of costs at the end of proceedings and may defer to an assessment under Rule 58  Exceptional cases o Argue in front of assessment officer o Costs can always be appealed o Section 131 of CJA  Stat. Authority to award costs any way - discouraging marginal litigation and encouraging preciseness, effectiveness and efficiency o Rule 57.01(2)  Costs can be shifted either way – despite party success or failure o Partial Indemnity  Reality – 40% o Substantial Indemnity  Exceptional circumstances - (may use to sanction a party) or;  Procor Ltd. v. USWA  Reprehensible, scandalous or outrageous conduct on the part of one of the parties”  Young  Ex. – Allegations of fraud and dishonesty when had access to information to conclude that was merely negligent and not dishonest or fraudulent  Hamilton v. Open Window Bakery Where the litigation concerns a fund of money – those parties who have an interest in the fund, or who are responsible for its maintenance – will usually be awarded costs out of the fund o Rule 57.07  Costs against a solicitor personally o Disbursements – P.1383  Considered individually - relation of issue to evidence  60   -  Contingency Fees o Not champertous absent an improper motive and encouraging litigation that the parties would not otherwise be disposed to commence”  Mcintyre o Reg. 195.04 of the Solicitors Act  Contents of Cont. Fee Agreement as per section 1  That the client and solicitor have discussed options for payment other than CFAs, including hourly rate retainer;  That the client has been advised that hourly rates can vary and that she can speak with other solicitors to compare rates;  That the client has elected to retain the solicitor by way of CFA,  That the client understands that all the usual protections and controls on retainer agreements, as defined by the LSUC and the common law, apply also to CFAs.  Details about the CF that has been set and the mechanics of applying it  That the client is aware of her right to ask the SCJ to review and approve of the CFA  That the client retains the right to make all critical decisions regarding the conduct of the litigation!!  Statement that reasonable contingent compensation is to be paid for the service – also a maximum amount that the compensation is not to exceed after deduction and all reasonable disbursements  Section 4(1)(a)  Solicitor cannot require consent for decisions re: settlement or abandonment  Cannot prevent the client from terminating the contingency fee agreement with the solicitor or changing solicitors  Cannot add provision allowing the solicitor to split fee with another person unless in accordance with the ROPC o Amount may be different from what the solicitor usually makes  Based on risk/reward o Must filed within 10 days of signing  If not filed in time then the compensation is based on solicitors hourly rate o Section 17  Agreement must be examined and allowed by an assessment officer 61 Must be worthwhile to get costs Onus is on the plaintiffs to establish that, at the time, the disbursement was a reasonable one, necessary for the trial of the matters Pittman Estate - o Section 18  Power to have court review if assessment officer thinks the agreement id not fair and reasonable o Section 24  Power to disallow if unfair or unreasonable – will revert back to normal solicitor/client arrangement  Will consider o Time, complexity, risk, results  Raphael Partners  Onus on lawyer to establish that it is fair and reasonable o Window of 6 months once the solicitor gets his fee – review – and change/disallow Interim Costs – Okanagan Indian Band o Court has discretionary power to do so  Several conditions must be present  Party must otherwise not be able to fund trial  Claimant must establish a prima facie case of sufficient merit to warrant pursuit  Must be special circumstances sufficient to satisfy the court that the case is within the narrow class of cases where this extraordinary exercise of its powers is appropriate 62 16. Professionalism The Ethics of Lawyering Governance performed by the benchers of the provincial law society o Self regulation and monopoly o Provincial offence to practice without a license o Ethics derive from values and morals and/or rules Two Models - Atkinson o Story of how professional duty overcame moral intervention  Those whose actions are dictated solely by the boundaries of law; and  Those who recognize constraints beyond the outer limits of the law - Neutral Partisanship – Butler o This concept of professionalism entails advancing client goals through all legal means, provided that the ends fall within the letter of the law. o It is up to the client to make the ultimate decisions in matters of morality and public policy. - Moral Activism – Maid o This concept of professionalism entails the belief that lawyers cannot claim moral absolution for assisting their clients in ‘unjust’ acts, however legally proper. o Lawyers must take direct moral responsibility for the consequences of their actions, rather than insulating themselves within their role. **Argument that before a lawyer allows a client to operate immorally but within the letter of the law, he/she should attempt to convince them otherwise - Hutch o Feels Rules and statutory ethical guidance is rich in generalities and poor on practical specifics o Legal ethics is contextual  Demands the cultivation of a critical reflection upon the professional role and responsibilities of lawyers Responsibility for Access - Public responsibility to access to justice o Money or justice  Needs to be a pro bono increase – profession reluctant to conform 63 - Martin o Conflict of interest  The prob. of real mischief – or;  Requires proof that the lawyer was actually possessed of confidential information and that there is a probability of its disclosure to the detriment of the client  The poss. of real mischief  Based on the precept that justice must not only be done by must manifestly be seen to be done o If it reasonably appears that disclosure might occur, this test for determining the presence of a disqualifying conflict of interest is satisfied Selection of Clients - Lawyers can choose to represent whoever they want to o Not like the UK - But – must not make their selection based on race or gender - Kennedy o Makes the argument that you shouldn‟t entertain morally uncertain cases just because they are based on proper law. o Let truth emerge through conflict – adversary system  Use for reflective essay – p.209 Rule 2 of the Rules of Professional Conduct govern all aspects of the relationship between lawyer and client Competence: Competence is defined in Rule 2.01(1) and provides a „blueprint‟ for the competent practitioner Requires high level of initial competence plus ongoing commitment to maintaining competence in five areas: knowledge, skills, communications, judgment and practice management. Rule 2.01 1. Knowledge: Rule 2.01(1)(a) holds that a competent lawyer must know „general legal principles and procedures and the substantive law and procedures for the areas of law in which the lawyer practices” LSUC‟s “minimum requirements” for continuing education (50 hrs/yr in self-study plus 10 hrs/yr in continuing education programs) 64 2. Skills:Rule 2.01(1)(c) sets out the various skills that a lawyer requires in order to deliver competent services to her client. Includes: legal research, analysis, application of law to relevant facts, writing and drafting, negotiation, ADR, advocacy and problem-solving ability. Does law school prepare us for this requirement? 3. Communication:Rule 2.01(1)(d) clearly requires „timely and effective‟ communication with our client at all stages of a matter This is the basis for the greatest number of client complaints to the Law Society – alleging insufficient communications between lawyer and client 4. Judgment: Rule 2.01(1)(f) requires that the lawyer apply “intellectual capacity, judgment and deliberation to all functions”; Rule 2.01(1)(h) obliges a lawyer to recognize “limitations in one‟s own ability to handle a matter or some aspect of it, and to take steps accordingly to ensure that the client is appropriately served”. 5. Practice Management: Rule 2.01(1)(i) specifically requires effective practice management as an aspect of professional competence Rule 2.01(1)(e) refers to a competent lawyer performing “all functions conscientiously, diligently and in a timely and cost effective manner”. Rule 2.02: Quality of Service Rule 2.02 focuses on the critical advisory capacity that the lawyer fills for a client Key requirements of this rule around: honesty and candor, encouraging compromise and dealing with a client‟s dishonesty. 1. Honesty and Candor: Rule 2.02(1) holds that, when advising clients, a lawyer shall be honest and candid. The Commentary to Rule 2.02 holds further that the advice given must be “undisguised and clearly disclose what the lawyer honestly thinks about the merits and probable results”. 2. Alternatives to Litigation: Rule 2.02(2) clearly mandates a lawyer to “advise and encourage the client to compromise or settle a dispute whenever it is possible to do so on a reasonable basis..” Rule 2.02(3) requires that lawyers specifically consider the use of ADR for every dispute and, if appropriate, inform the client of ADR options. 65 3. „Counsellor, Conspirator, Party, Tool and Dupe‟ : Rule 2.02(5) prohibits a lawyer from knowingly assisting in/encouraging dishonesty, fraud, crime or illegal conduct, or from instructing the client on how to violate the law and avoid punishment. Rule 2.03 : Confidentiality Duty of Confidentiality vs. Solicitor - Client Privilege? Sol-client Privilege is a rule of evidence observed in the adversarial process Lawyer‟s duty of Confidentiality is far broader ~ an ethical obligation imposed on lawyers 1. Confidentiality requires lawyers to keep the information in confidence, whereas privilege merely prevents the introduction of confidential information into evidence; 2. Privilege applies to all communications between solicitor/client made for the purpose of obtaining legal advice; confidentiality applies to all information concerning the client‟s affairs acquired from any source during the relationship 3. Unlike privilege which can be waived by the client if the information is disclosed, the duty of confidentiality applies even though others may share the lawyer‟s knowledge; 4. Confidentiality extends beyond the termination of the lawyer/client relationship, regardless of the reason for termination (including death of the client). Justified Disclosure: The duty of confidentiality is not absolute. Rule 2.03(2) requires a lawyer to disclose confidential communications in qualified circumstances if compelled by statute or ordered by court. A lawyer may also disclose confidential information in order to defend himself from allegations of : criminal conduct or civil liability in dealing with the client‟s affairs, or malpractice/misconduct. Permitted Disclosure: What if a client confesses criminal/violent conduct to his lawyer? This situation brings into conflict the lawyer‟s duty to her client with her duty to society Permitted Disclosure:Rule 2.03(3) requires the lawyer to make a number of carefully considered judgments: 1. Future Harm? The subrule permits disclosure only of future harm. 2. Imminent Risk? The subrule requires not only that the harm to be avoided be „in the future‟, but it must be imminent. 66 Permitted Disclosure:  Believes on Reasonable Grounds? The lawyer must not only have objective grounds to believe that the client‟s threat might be carried out, but he must actually (subjectively) believe that it might be.  Identifiable person or Group? The intended victim of the imminent future harm must be identifiable in order for the lawyer to disclose the threat. The commentary reveals that there is a fairly high degree of specificity required to bring the intended victim within this boundary. Permitted Disclosure: 5. Death or Serious Bodily Harm? The risk to the identifiable person or group must be either or death or of serious bodily harm. 6. Necessary to Prevent? Disclosure will only be permitted if it is necessary to prevent death or serious bodily harm. If the lawyer is aware that the information is available from another source, she is not permitted to disclose. Permitted Disclosure: 7. May disclose: Even after meeting all the preconditions to disclosure, the lawyer is not mandated to disclose the confidential client communication; rather, disclosure is permissive. Rule 2.04: Conflict of Interest Two main branches of conflict of interest: a. where the lawyer might prefer the interests of one client over those of another; and, a. where the lawyer‟s judgment might be compromised concerning loyalty to a client, usually because of the lawyer‟s personal interest, financial or otherwise. Rule 2.04: Conflict of Interest Rule 2.04(2) states that: “ a lawyer shall not advise or represent more than one side of a dispute” Lawyers often retained to act for two parties with interests that appear to be identical (eg. two co-accused); But, if it becomes apparent that a conflict of interest is likely to arise, Rule 2.04(3) provides that the lawyer cannot continue to act unless he discloses the (potential) conflict and the parties give an informed consent to his continuing to act 67 - the conflict of interest at the point of retention cannot be present – can develop later – see above What about former clients? Rule 2.04(4): The duty of confidentiality protects client confidentiality even after the relationship is over, so a lawyer who has acted for a client may not thereafter act against that client in the same or any related matter, or in any new matter if the lawyer received relevant confidential information from the first retainer. - Often an issue within firms of the same practice area - BUT – practical – any conflict files – setting up a fire wall – ie. keep all conflict files in special color files and lock in the lawyers office Joint Retainers: if 2+ clients ask a lawyer to represent them in the same matter, it is called a joint retainer. Rule 2.04(6) requires the following if a lawyer is requested to act jointly: 1. the lawyer must ensure there is no conflict of interest; 2. then, the lawyer must inform all of them that she has been asked to act jointly; 3. the lawyer must stipulate that she can hold no information confidential from the others in the retainer; (think of this in the context of Class proceedings – difficult – practical – have client meeting which everyone attends and can acquire the information) 4. the clients must all agree that if a conflict arises during the retainer, the lawyer will be unable to act for any of them. Rule 2.08: Fees and Disbursements Rule 2.08(1): a lawyer may not charge or collect a fee unless it is reasonable and has been disclosed to (and agreed to by) the client in a timely manner. „reasonableness‟ will be measured by a number of factors outlined in the commentary following Rule 2.08(2) - be aware of the factors in the commentary for this rule re: reasonableness Contingency Fees: Rule 2.08 (3)-(5) the rules re: contingency fees this model is permitted in most areas of law, but not in family law, criminal law or quasicriminal matters the C.F.A.must be clear and must advise that the client may apply to the Superior Court of Justice to determine whether the fee is fair and reasonable NO contingency fees in family law, criminal, quasi-criminal proceedings Reality is that regardless of them not being allowed often they are entered into on an informal basis and then they are not afforded the protection of regular contingency fees – CH argues that to avoid this lack of protection contingency fees should just be allowed in these areas to effect the protection and regulation 68 Rule 2.09: Withdrawal from Representation While a lawyer has a right to decline to represent anyone for any reason prior to the retainer, once the retainer has been entered into, the lawyer‟s right to terminate it is restricted The client may at any time, for any reason, terminate the relationship but Rule 2.09(1) holds that the lawyer may only terminate the retainer for good cause and with appropriate notice. Good Cause: depends on a number of factors - eg. Nature/stage of the matter, relationship with the client, lawyer‟s expertise/experience (starts to move out of you area of expertise) and any resultant prejudice to the client that may follow the withdrawal (CH thinks this is the most important one) Rule 2.09(2) holds that the lawyer may withdraw in cases of “a serious loss of confidence between the lawyer and the client” (ie. because the client told me he did it) Rule 2.09(3) allows a lawyer to withdraw for non-payment of fees, but only on reasonable notice to the client AND if it will not result in “serious prejudice” to the client. ( this doesn‟t mean that you don‟t have to proceed with money – court will always favour the client‟s interest) Reasonable Notice:“the governing principle is that the lawyer should protect the client‟s interests to the best of the lawyer‟s ability and should not desert the client at a critical stage in the matter or at a time when the withdrawal would put the client in a position of disadvantage or peril” (Commentary from Rule 2.09(1) Mandatory Withdrawal: Rule 2.09(7) sets out the five circumstances , criminal or otherwise, in which it is mandatory to withdraw from representation of a client: 1. Discharge by the client; 2. The client instructs and insists upon the lawyer to do something inconsistent with the lawyer‟s duty to the court; 3. The client is guilty of dishonourable conduct in the proceedings or is taking a position solely to harass or maliciously injure another; (CH story of docs in s. B not A) 4. It becomes clear that the lawyer‟s continued employment will lead to a breach of the Rules; or, 5. The lawyer is not competent to handle the matter. Rule 3: The Practice of Law Rule 3.01: Making Legal Services Available: Duty to Make Services Available? 69 Rule 3.01 provides lawyers „shall make legal services available to the public in an efficient and convenient way that commands respect and confidence and is compatible with the integrity & independence of the profession. Rule 3.01: Making Legal Services Available: BUT: Lawyers in Ontario do have a general right to decline a particular representation, but that right is to be „exercised prudently, particularly if the probable result would be to make it difficult for a person to obtain legal advice or representation‟ [comm. R. 3.01] But what about clients you disapprove of? Duncan Kennedy article (CB 206): As a society, we should disapprove of lawyers, and those lawyers should feel guilty, if they take on cases that they do not believe in…if you think that a case will do more harm than good, then you should not take it on. 70