LSS | Cans DB
Civil Procedure: Nathanson and Crerar: Couse Notes: 2010/2011: Term 2
● These notes are a compilation of my class notes, notes from the course materials, notes from the Walker textbook, and notes from the black annotated Rules.
● The grammar and spelling below is atrocious and I can’t be bothered to fix it.
● Good luck! Hopefully some of this is helpful
|Introduction: |
1. Topics:
(b) The life cycle of a civil action
Why Procedure Matters
● USSC clerk Edward Lazarus
○ descirbd a situation where you only needed 4 judges to get a death penalty appeal heard, but you needed 5 judges to grant a stay
■ and a stay would be important if you are going to be executed the next day!
○ due to poltiical divisions, 4 judges would want to hear the appeal, but they couldn’t get a stay
■ so the appellant would be executed while waiting for his appeal to be heard
○ demonstrates the rpobelm with procedure
■ procedure shouldn’t dictate outcome
■ we should get it RIGHT
■ the outcome should be right on its merits, not diven by procedural rules.
● Okanagan Indian Band Case
○ wanted to be able to log on their land despite regulations to the contrary, but had no money to litigate
○ it was important to the band and to the First Nations law, and it was thought the band would probably prevail, but they needed funding to go forward and costs normally follow the action
○ the SCC created an exception to the ordinary cost rules allowing costs to be awarded in advance, which allowed the case to go forward
● INSITE Case
○ highly driven by procedural points
Course Objectives
● exposure to core concepts of civil procedures driven by the Supreme Court Rules
● look at some procedural steps found in other statutes and common law
● look at the values and policies behind these things, and compare oru solutions to the rest of the common law word.
● Balancing of values
○ justice on the merits vs. finality, certainity, efficiency
■ we don’t always strike this balance quite right.
● how to be an ethical and courteous lawyer
○ civility is important, and in many cases the rules are not always strictly observed
○ may be better not to insist on strict observance and instead work together to find ways of moving the case forward without compromising the interests of the client
○ just because you can do something doesn’t mean you should;
■ not ever rule needs to be enforced in every case.
2. Readings:
The Structure of a Civil Proceeding
● Rules of civil procedure differ between provinces, but are intended to be a complete code of procedure for civil proceedings.
● Aim is fair and effective procedure; law in order to get substantice justice.
● Rules are applied on a daily basis and must be consistent among cases.
○ all applications and cases ought to be treated the same way
● procedure drives most outcomes in civil litgation
● Most of the court covers pre-trial stuff, since few trials make it to court- well over 80% sette or otherwise resolve pre trial
Procedural Pathways
● Basic rule that all kinds of applications should be treated the same way is different from old CL rules, where different matters were treated via different procedures
● modern rules tend towards consistency, but there are variations for particular areas (family law, morgage law, etc)
● procedural approaches will vary based on the complexity of the issues- small claims is an example of this.
○ certain kinds of litigation have general practice direction
Garry D. Watson, “The Structure and Purpose of Civil Procedure”
● application typically has 3 parts
○ judge hears evidence
○ judge makes evidentiary findings of fact
○ judge applies facts to law
● at appeal, law dominates; at trial, facts dominate
○ little argument over law at trial typically.
● Historical pespective
○ must understand history to understand genesis of current system.
○ historially civil system had juries, and a lot of oral trials that were dealt with in shorter periods of time.
○ witnesses testified in person, helps assess reliability and could lead toconvicning testimony
○ historically little room for adjournment- trials didn’t stop half-way through just because something weird/suprising happened- jury wanted to come home to the kids!
○ juries now uncommon, still want things to be fair so if we are going to have a continuous, oral trial we want to give notice to avoid “genuine surpise”
■ evidence that had the other party known about they could have prepared for and produced contrary evidence.
○ so we require parties to give notice of the pleadings, the evidence to be used to prove the facts alledged.
■ includes disclosure of documents and facts through pre-trial disclosure- discovery
○ other ways of dealing with this
■ no notice, but toelrance for adjournment
● can be inefficient.
■ hearings occuring at different times, over a period of time
● continental system.
○ due to long time leading up to trial, CL developed provisional remedies like interim injunctions
○ if there is no facts in dispute, we can get summary judgment- if there is no disagreement as to facts, no need for trial
■ the court can just hear the agreedupon facts and rule on the law on that basis.
○ if a claim or defence is legally invalid, we do not need a trial- just move to strike for failing to stae a reasonable cause of action.
● Due Process perspective.
○ the process of adjudication should be fair to both parties.
■ we want to reach the “right” decision, but we also want parties to be convinced that the route to the answer was fair.
○ fairness of proedure typically dealt by statute, so no clear CL answer as to what is fair.
○ courts deal with fairness mainly in the context of administrative law
■ courts oversee administrative matters to make sure that the procedures are fair.
○ elements of fairness
■ notice- both of proceeding and nature of allegation
● must be made in writing and served to the other party
● both of the action and any relevant step in the proceeding
■ right to be heard
● right to take part in the process by aducing evid3ence and making submissions
■ right to be free of findings of fact except where the party had the opportunity to participate
● issue estoppel
■ the right to a reasoned decision and the reasons for decision
■ the right to appeal an initial adverse decision
■ the right to avoid discovery and trial if there is no genuine issue for trial or where there is no reasonable cause of action or defence.
Considerations Before Commencing Litigation
● litigation is expensive and time consuming, and alternate means ought to be considered.
○ explore issue of settlement.
○ at least send a letter
○ starting and action should usually be an action of last resort after all other options taken
● if you decide to sue, consider
○ reasonable chance of winning
■ valid cause of action
● if you assume all the facts can be proven, is there a legal wrong the court could exercise?
● maybe be tricky to tell with novel actions.
● if no valid cause of action, defendant may move to strike
■ if the D contests the facts, are they likely to be proven
■ but remember, the D may not contest- sometimes the initiation of an action is enough to convince the D to settle.
○ financial considerations
■ win or lose, may be expensive
■ may be hard to recover against a defendant
● make sure they got that cheddar
● failing to satisfy a judgment for money is not contempt
● if the D just can’t afford it, too bad.
■ but is there an insurer?
■ plus, if the client loses, still going to have to pay counsel.
Selecting the Appropriate Court
● pretty easy in canada, since we have courts of general civil jurisdiction
○ also small claims (limit 25K)
● Does court have jurisdiction?
○ Superior courts have the power excerised historically by courts of CL and equity in Ontario and England.
● certain federal matters and family matters must be brought to certain courts
● consider caps on damages- Small claims, for example.
Commencing the Proceedings: Actions
● Start by filing a notice of civil claim. textbook is from Ontario, useless for BC.
● Must serve notice on D
○ physically hand him or rep the notice
○ for corporation, give it to the the officer, director, or agent
○ typically P will use a sheriff or private processors
○ if D is evading service or can’t be found, P may apply for substituted service
■ court may allow notification by advertisement, or something similar.
○ statement of claim will explain that if D takes no actions, the judgment will be given by default.
Commencing the Proceeding: Applications
● P may start proceding by application rather than action
○ applications are used where there is little likelyhood that any material fact in dispute will require oral evidence
○ applications differ from actions because affadavits are used
○ in applications, there is neither pleadings nor trials
Asserting Claims and Defences: Pleadings
● Statement of claim is to include a summary of fact relied upon in support of the cae and a statement of the relief sought
● P’s bare allegations, not the evidence to be used in proving those facts.
● allows court to see whether there is a good cause of action
○ D may have motion dismissed otherwise.
● notifies D as to nature of the claim
● then D makes a pleading: statement of defence
○ or face default judgment...
○ similarily, inlcudes facts relied on in defenec NOT the evidence
● P may respond by: reply
● D may also asssert a countercliam if D believe P has actually caused D some damage
○ similar to statement of claim, served on P
● D may make a cross claim against other co-defendants
● D may make a third-party claim against third parties.
● All of these pleadings identify the critical issues at trial.
● The only evidence that can be led during trial are those things which relate to the facts in the pleading
○ if the evidence goes to something else, a “variance” is said to occur.
○ parties may request the judge “amend” their pleadings to include matters not already pleaded.
Obtaining Information Before Trial: Discovery
● we want parties to understand the case that must be met
○ pleadings help with this
○ but there are various “discovery” devices that help parties obtain information about their opponents case
● Discovery of Documents
○ each party discloses under oath an affadavit of all documents now, or previously, in their possession relating to the action
● oral examination for discovery
○ can interview a representative of the other party under oath concerning the issues at trial
○ may ask the opposing party to disclose the facts on which it relies in support of its case.
○ transcribed and can be used in trial to impeach credibility if the witness changes its story
○ admissions made on examiniation for discovery can be used to help prove case.
● May use orders to inspect property or submission for medical examination
● if there is an intent to use XW at trial, must make a version of the evidence available to the other side before trial.
Disposition Without Trial
● various procedures to resolve without trial
● Settlement
○ various procedural rules incentivze settlemnt
○ once both sides understand the others’ case, settltment more likely.
● strike for failure to establish a cause of action/ failure to establish a reasonable defence.
● if agreement as to facts, may procede to place a question of law before the court
○ court just has to decide on the law.
● if there is no triable matter, one side can apply for summary trial
● in BC, summary trial under 18A
○ intended to avoid lengthy trials, expedite early resolution
○ only written materials, like affadavits and evidence on discovery
○ judge may rule if he or she can make necessary factual findings and it would not be unjust to grant judgment.
● if D fails to deliver a statement of defence, P gets default judgment
● if the P failes to proceed with the action, the defendant may have the action dismissed for want of prosecution.
Case Management and Alternative Forms of Dispute Resolution
● Case Management
○ judges taking more active role in controlling early stages of litigation to tamp down on rising costs of litigation and delyas in bringing procedures to a close
○ Court confers with counsel to set a schedule for pre-trial motions
○ Court monitors proceedings to ensure compliance with the schedule.
● Judicial Dispute Resolution (BCSC)
○ judges acting as facilitators or mediators to help the parties resolve disuptes without trial, typically in settlement conferences or when requested.
● Other Dispute Resolution Mechansims
○ mediation, arbitration and concilliation increasingly important in curtaining costs and delay, and giving parties more control
○ if used alone, can bypass the courts altogether
○ mediation also used in court
■ “court annexed mediation”
■ BC very common
■ BCPC has mandatory settlement conference where judges can mediate disputes
■ parties serve notice to mediate on oppposite party that then requires all parties to attempt a mediated settlement
■ very succesful; adopted partly in BCSC, in the future will be expanded.
Setting the Case Down for Trial
● after all pre-trial motions, the P puts the case on the list for trial.
Mode of Trial
● may be before judge alone, or with jury.
● Typically, each party is entitled to have the case tried by a jury
○ some cases cannot be tried by jury
● In Canada, mostly by Judge alone
○ in Ontario, can get jury of 6
The Trial
● P’s lawyer makes opening statement
○ nature of case outlined, so are facts that need to be proved.
● leads witnesses, takes answeres in “exacmination in chief”
○ D gets to cross examine each witness
○ P may re-examine
● Rules of evidence apply
○ must be relevant, other rules followed.
● P closes case once all witnesses led.
● D may apply for non-suit if P failed to prove some elements of case.
● D may rpesent case, examination-in-chief followed by cross.
● P may reply, but not on matters that should have been included in the first place.
● Then TJ rules
The Judgment, Its Enforcement, and Its Effect
● The Judgment is the final determination of the lawsuit, subject to appeal
○ typically money award
○ may be declaratory
○ specific performance
○ order prohibiting future behavior
● P must collect on the order
○ burden on P to do so through “execution”
○ P obtains “writ of execution” allowing sheriff to seize D’s property and sell it to satisfy the judgment.
○ if injunction obtained and D refuses to comply, the P may apply to have the D found in contempt of court.
● Costs typically awarded to the winning party
○ only cover a proportion of the actual costs.
○ succseful party presents a bill of cost and gives it to the losing party
○ may have the bill assessed before a judicial officer
○ can be recoerd via writ of exectuion
● res judicata means the trial cannot be retried, but can be appealed.
Appeals
● IN Canada almost any ruling may be appealed.
● Party uses right by filling a notice of appeal setting forth ground of appeal.
○ must set out a statement of fact and law that sets out facts of case and the points of law relied on
○ respondent does the same.
● CA may affirm, reverse, or vary the original determination
○ may be necessary to order new trial, or can subsmtute the decision of the TJ for the correct decision.
○ Findings of fact can only be substitute where the finding of fact at trial was a clear error
● Most appeals on matters of law
○ CA can apply the law correctly and substitute correct determination.
● If evidentiary error made, new trial may be ordered.
● Appeals usually argued based on transcripts of trial.
● Appeal of civil matters to the SCC is a available only on leave
Motions
● applications made to the court before the trial itself
○ often deal with pleadings or discovery - pre trial stuff
● can apply to the masters to ammend pleading, for example.
● may apply for motion where other party refusing to answer questions during discovery.
● right of appeal from an order made in motions is limited, and depends on whether the determination was final or interlocutory
○ don’t want these pre-trial motions going o nforever.
(b) “Life cycle of an action in British Columbia Supreme Court”
|Start of Proceedings |Discovery |Pre-Trial |Trial |Post Trial |
| | | | | |
|· Pleadings: |· Document Disclosure |· Pre-trial |· Summary Trials (R. |· Orders |
|o Notice of Civil Claim |(R. 7-1) |(“Interlocutory”) |9-7) |(R. 12-6, R. 13-1) |
|(R. 3) |· Examinations for |Applications (R. 8-1, R. |· Ordinary Trial |· Costs (R. 14-1) |
|o Service of Pleadings |Discovery (R. 7-2) |8-2) |Rules |· Appeal (Court of Appeal|
|(R. 4) |· Interrogatories (R. 7-3)|· Garnishing Orders (Court|(R. 12) |Rules) |
|o Response (R. 3-3) |· Discovery of non-party |Order Enforcement Act) |· Expert Reports |· Examinations in Aid of |
|o Counterclaim (R. 3-4) |witness (R. 7-5) |· Injunctions (R. 10-4) |(R. 11-1, R. 11-6, |Execution |
|o Third Party Notice (R.|· Physical Inspection |o Mareva Injunctions |R. 11-7) |· Other execution |
|3-5) |(R. 7-6) |o Anton Pillar Orders | |procedures (Court Order |
|o Reply (R. 3-6) |· Notices to Admit (R. |· Pre-Trial Conference | |Enforcement Act) |
|o Petition (R. 16) |7-7) |(R. 5-1 to R. 5-3) | | |
|· Particulars |· Particulars |· Offer to Settle (R. 9-1)| | |
|(R. 3-7(18) to R. 3-7(24)) |(R. 3-7(18) to R. 3-7(24)) |· Strike Pleadings | | |
| | |· Summary Judgment/Trial | | |
| | |(R. 9-6, 9-7) | | |
| | |· Mediation (Notice to | | |
| | |Mediate (General) | | |
| | |Regulation) | | |
|Theoretical Perspectives |
1. Topics:
(a) The adversary system
Takeaways
● Procedure affects legitimacy and the perception of fairness
○ we need people to accept judicial rulings
● there is no procedure that is universally correct in all cases
● the appropirate procedure varies with the interests at stake
● fair procedures may sometimes create unfair outcomes, but where outcomes are repeatedly unfair the legitimacy of the system will be undermined
● the rules reflect important balances to be struck between different values
● it’s important to know the conditions necessary for fair procedure and why they are necessary
Toshiba Case
● filing was one minute late due to a traffic jam, costing a law firm millions in fees
○ the delay caused no prejudice and wasn’t lengthy, but the law firm simply failed to take regular traffic into account
● Reasons this was the right decision
○ it was unfair to the timely party that the otehr party was late
○ we have rules and they must be followed
○ we want to deterred lateness
○ timing is connected to finality, a virtue
● Reasons this was the wrong decision
○ may unjustly enrich the other pary
○ foils the adjudication of the case on its merits, since the whole case was about costs
■ ultimately the whole point of the system is justice on the merits
○ if there was a breach of a procedural rule
■ was the other side prejudiced, or was it a harmless error?
■ if there was prejudice, look to see if tehre’s other more appropriate ways to remedy the issue without completely quashing the merits.
Dispute Resolution Mechanisms
● Coin toss
○ advantages:
■ fair, perception of objectivity
■ commonly accepted with clear rules
■ final, definitive, speedy
● I cut, you Choose
○ disadvantages
■ doesn’t work with multiple parties
■ doesn’t take into account how much the parties have put into the pie, or how much they want it
■ doesn’t accoutn for economic inequalities.
● auctions
○ very market driven, whoever wants it the most and has the most money will win.
● important to have default rules of efficient resolution of basic problems
○ ie. where multiple party, responding counsel goes in alphabetic order
Values underlying Rules
● correctness on the merits
● speed
● finality
● certainty
● efficiency
○ cost
● reasonableness
● consistency
● limited impact on third parties
● impartiality, expediency, transparency and accesibility
● intelligibility, clarity and simplicitiy
Conditions Necessary for Fair Procedure
● Impartial decision maker/judicial independence
● natural justice
○ notice
○ to be heard at your own trial
● duty to give reasons
○ prevents unreasonable outcomes, ensures accountability, and presents a record for appeal
● rule of law
○ law applies to everyone, including the government
○ a system of positive laws rather than ad hoc procedures
Burden of Proof
● unlike the criminal law, burden of proof is rarely at issue in civil trial
● often it is just chance which party sued first, and often both parties are suing each other
● in a pracitical sense its rare that a judge will really have no ablity to decide between the two cases
Setting Aside a Defaul Judgment: Miracle Feeds Test
● Must show
○ faliure to appear was neither wilful nor deliberate
○ the application to set the default judgment aside was made as soon as reasonably possible
○ a defence to the judgment that is worty of investigation
2. Readings:
Sir Jack I.H. Jacob, The Fabric of English Civil Justice
● Fundamental characteristic of the CL system is the adversary system
● Created evolutionarily out of practical way social, political, and cultural problems were solved.
● emerged from Magna Carter which required “trial by peers” and the prohibition of the Lateran Council forbidding the clergy to take part in trials.
● avoided the inquisitorial system
● based on procuedres in the Superior Common law Courts.
● under inquisitorial system the judge plays an active role in getting to the truth: the court plays an active, interventionist role.
● under adverserial system, the judge is passive and non-interventionist, meaning the parties themselves play the larger role.
● Civil procedure in the CL system is a private dispute between parties, so the dispute should be dealt with privately
● in inquisitorial system, civil claims are viewed as a breach of public law, so a right of an action is seen as a public law right. Court sees taking a role as part of the public system.
● Role of the Court
○ inactive, passive, non-interventionist for the most part, but there are exceptions
○ the court has no investigativ eprocess of its own
○ the court does not interview or coross witniesses.
○ the court does not call witnesses
○ the court has no power or duty to promote a settlement or comprimise
○ however during the trial and hearings themselve the court does play an active role.
■ court helps guide proceedings to get at the truth
○ the neutrality of the court helps explain the great respect given to judges.
● Role of the Parties
○ they are the active parties, especially through their lawyers
■ lawyers much more important than in civil system
○ parties retain the initiative at all stages of civil proceedings.
■ agree to extend time limits
■ define issues as they please through pleadings
■ interview parties and witnesses
■ may move case quickly or slowly, within limits.
■ etc.
○ it is up to the lawyers to ensure the case of the client is fully and effectively begun or defended and framed, prepared and presented.
○ within limits, both sides are entitled to take advantage of errors made by the opposing party.
○ generally don’t inform the other party they are making a mistake.
● Failings and Changes
○ adverserial system makes it a battle of wits
○ but it also corresponds to English cultural values of independence and fair play.
○ civil disputes ought to be under the control of the lawyers of the clients’ choice, not the judges who ar not answerable.
○ but sometimes doesn’t always work.
■ there is an amount of gamesmanship, delay, technical maneuvers
■ sometimes one side is seriously out matched by the other.
■ may lead to mystique
○ reforms?
■ could change to inquisitorial system
■ but lack the human infrastructure and experience working in that system
■ we’d have a lack of judges, since here judiciary is chosen from the practising lawyers, not career judges.
○ but court should remember its public duty and interest to ensure proper progress of the proceedings.
■ mointor progress of proceeding, try and control future conduct, formulate real issues between parties, to determine whether disclosure has occured, to ensure exchange of XW reports, etc.
■ should be a duty to encourage settlement and comprimise.
Neil Brooks, “The Judge and the Adversary System”
● Two basic questions in any adjudicative procedural system
○ function of the parties and function of judge with respect to initiation and content of adjudication
○ function of parties and judge with reference to the procedrual system once the claim is initiated and defined
● adverserial system rests on party prosecution, which means burden of proceeding lies on parties to claim
● Party-Autonomy
○ judges only rule on the cases brought before them.
○ not “self-propelled vehicles of justice”
■ but judge can refuse to initatie certain proecddings, ie. cannot bring hypotheticals or moot problems.
■ can give summary judgment, give judgement on pleadings
■ so with the assistenace of counsel he can control the use of court time.
○ parties define the dispute they would like resolved
■ even if the judge would prefer to address a different dispute altogether.
○ the system does not require the judge to take an active role seeking out disputes because it is assumed self-interest will be sufficent to drive parties where the issue is truly important.
○ if it is truly important, the state can bring the action- only the judge himself is barred from initiating the proceeding, not the state.
○ the motive behind barring te from acting on his own motion is rooted on the appearance of fairness
■ as soon as the judge takes that kind of role, the notion of impartiality becomes troubled.
● Party-Prosecution
○ parties have the right and the responisbility to choose the manner in which they will go forward with their case and the proof they will present in support of it.
○ while the judge is to ultimately rule on the merits, in appropriate cases it may be that the judge should play a larger role in the conduct of the case
○ the principle of party-prosecution at trial rests upon two broad empirical assumptions:
■ the legitimacy of adjudication as a means of social ordering is enhanced if it is conducted according to an adverserial presentation
■ more accurate fact-finding is likely to result if parties motivated by self-interest are given the responsibilities of investigating facts and presenting arguments, and if the decision maker remians passive.
● the Adversary System Increases the Acceptability of Adjudication
○ legitimacy is key, and this is particularly the case where the judge’s decision may be seen as undemocratic in the sense that there is no electoral recourse.
○ Adjudication must be fast, final, inexpensive, and considerate of privacy and other social values
■ the degree to which the adverserial system meets these goals determines its level of legitimacy
○ there are four reasons why the adverserial system is a particularly legitimate means of fact finding
● Reason 1: Relationship to the Prevalent Political and Economic Theory
○ it is consistent with the broader social focus on the individual and liberalism more generally
■ a more corporatist view might prefer a more active system of justice
○ adverserial system emphasizes self-interest, limited role for the state/distrust of the state, significance placed on the participation of the parties.
○ but laissez-faire theory taken less seriously now, so can’t support the system on its own.
○ The liberal political philsoophy continues to distrust the state, and the adverserial system can be seen as a way of decentralizing power to avent abuses from the political class.
■ but the judge is going to make the ultimate decision in any case, so this role must not be over emphasized
○ In a democracy, the most legitimate and acceptable type of decision is a personal choice
■ this system encourages parcticipation and allows parties to make up their own mind about what to do.
■ in some cases, this means the judge should not interven
■ but other times, intervention may be needed to make the participation more meaningful
● Reason 2: Cathartic Effect
○ the “battle atmospher” of adversary litigation may provide a sublimation of more direct antagonism and aggression.
■ makes sense historical: trial by ordeal
■ we talk about tactics, strategy, treat trials as a game.
○ danger is that the search for truth may be left by the wayside: the true facts of the case become less important than how well the parties play the game.
○ may create an atmosphere of aggression inconsistent with the need to compromise and co-operate that is important in the vast majroity of interpersonal contacts.
○ besides, the sides are rearely equal
■ becomes less of a sport, more of a slaughter.
○ so can’t look at the judge as simply providing and enforcing the rules of a game.
● Reason 3: Role of Counsel
○ Clients and lawyers can indentify and sympathize with each other
○ but the judge cannot destroy this by taking a more active role
● Reason 4: Appearance of Impartiality
○ where the parties control the proceeding, there is less concern that the judge is being unfair.
○ but as long as the judge’s actions are careful, intelligent, and controlled, this should not seriously impair the appearance of impartiality
● The Adversary System Increases the Accuracy of Fact-Finding
○ Will result in more thorough investigation of facts than the adverserial system
○ the trier of fact is more likely to reach the correct decision because he will not acquire a bias towards one outcome or the other
● Parties Motivated by Self-Interest are Likely to be More Diligent in Presenting and Critically Evaluating all the Evidence.
○ Assumption 1: Parties are Initially Motivated
■ parties are motivated to seek out all favorable evidence
■ otherwise, they would not oppose the other parties case
○ Assumption 2: Parties will Sustain their Motivation
■ various rules encourgae this
● solicitor-client privilege
● work product rule: one lawyer cannot demand disclosure of the other’s work brief, w/r/t to witness stateemtns and related materials prepared or collected for use i the litigation
● otherwise temptation would be to free load.
■ cannot rely on judge to obtain evidence in favor of the client
○ Assumption 3: Parties have Equal Capacity, Skill and resources
■ parties encourgaed to play self0interested role.
■ Rules attempt to give maximum access to each others’ evidence, but cannot preculde cheating.
■ pretrial discovery
● helps obtain evidence
■ lawyers come between parties, lawyer has responsibility to the court as well as client and can help avoid cheating.
■ but this starts to break down where representation not equal.
● judge may need to play more active role if one party is so overborn that the competition stops being equal and there is real risk to trial fairness.
○ Assumption 4: The Parties will be Given the Opportunity to Test Adverse Evidence
■ need to test eachothers evidence
■ cross is available, but not always effective.
○ Assumption 5: All Interests Affected Are Represented
■ Some interests may not be of concern to the parties at trial, despite the fact the dispute impacts on those interests
■ public interest also important
■ the judge ought to allow intervenors in order to take account of these interests.
● The Adversary System Counteracts Bias in Decision-Making
○ Adverserial system viewed as better because it avoids bias.
■ bias meaning prejudgment or interest in resolving the case in favor of one side or the other.
○ Reasons bias may emerge in non-adveserial sytem
■ if judge interviews W and doesn’t like him, he may be less likely to believe that testimony
■ judge may give too much weight to evidence he himself has revealed
■ judge may become focused in too closely on one element of the investigation- loss of perspective
■ because inquisitorial judge reads file before starting case, danger of prejudgment
■ avoid decision-maker bias
● when a person is involved in investigation, begin to form hypotheses
○ leads to confirmation bias and tends to dictate the further progress of the investigation
● So judge should keep these kinds of factors in mind when deciding the degree to which intervention is appropriate.
D. Kennedy, “The Responsibility of Lawyers for the Justice of Their Causes”
● Polemic piece on avoiding ethical compromise
● no duty to accept a client who you disagree with ethically, unless court appoints you to do so.
● not required to take a client you don’t like or don’t agree with.
● in fact, you should feel bad if you take a client that is morally reprehensible.
○ unpopular opinion- most lawyers don’t blame counsel for the actions of the client.
● if you think the outcome sought by your client would be bad for society, don’t take that client.
● can make money better way without comprimisibng yourself, even if somewhat less money
● just because someone else would do it anyways, doesn’t mean you have to.
● just because client has a legal right doesn’t mean you are required to help them enforce that.
○ the law and morality are different and not coterminus.
● lawyers play a role in molding hte law, and so are responsible for the way they mold the law.
○ if you put your legal talent on the wrong side, and change the law in the wrong way, you are responsible for that.
● however, don’t sabotage or represent client have way
○ if you take a client, you should give it your all barring true ethical comprimise
● people do have a right to counsel in a few situations
○ but that doesn’t mean they have a right to your counsel
○ we have a social consensus that people in general need counsel in some cases.
○ if someone needs a lawyer and can’t get one, then you have a responsibility to step in
○ but in most cases, the immoral party is not in that place, and doesn’t need your counsel.
● just because the market assigns representation on a per-pay system, doesn’t mean lawyers shouldn’t be help accountable where they hurt others.
○ if lawyers felt accountable for their causes, they would be more likely to help the poor and middle-class people who actually need their services.
Owen M. Fiss, “Against Settlement”
● ADR increasing common
○ aim is to acheive settlement before trial.
● Criticisms
○ Settlement is like plea bargaining: often coercen, struck wihtout a person in authority; absence of trial and judgment makes later review difficult; justice may not be done.
○ settlement is a factor of the money each side has and is prepared to put up, and these resources are not equally distrubuted
○ the ability of one party to pass along its costs may further pervert outcome.
○ money talks, basically
■ poorer party may be less able to amass and analyze the information needed to predict the outcome of the litigation
■ may need the money now, even if that means less over all.
■ may need to settle since no money to continue litigation, particularly since the other party can manipulate discovery to effectively spend him out of the case.
○ contingencies may help, but this means its i the lawyer, instead of the rich opponnent, who now exploits the pporer party
■ they get a big chunk of the settlement
■ and they are unavaiable for the defendant client
○ little government support is civil context
○ while outcome of trial is also affected by the resources inolved, but at least at court the Judge can take a more active role to ensure justice be done
■ may ask his own questions, call witnesses, and other such measures.
● Justice rather than peace
○ aim of ADR is peace- the resolution of the dispute.
○ but adjudication isn’t just about peace between neighbours
■ it uses public resources and public officials, and sometimes public participatants
■ the goal is to give effect to the constitution and ensure jsutice be done.
○ settlements deprive the court of establishing a precedent
■ where parties settle, society gets peace, but not justice.
■ settlement amy sefcure peace, but not racial equality (for example).
○ the relief felt when a case is settled is not rooted i njustice, it’s a recognition that one less case needs to come before the court.
○ civil litigation is a tool to shape society into our chosen ideals
○ courts are necessary instruments of justice
(b) Casebook:
Murphy v. Dodd
Issue
● How does procedural rules impact outcomes?
Facts
● Murphy applied for an injunction to prevent Dodd from getting an abortion
● she didn’t show up, so default judgment was that the injunction succeeded and Dodd could not get an abortion
● once given notice, you must appear at the date listed unless you can show your failure to do so was through accident, mistake, or insufficient notice.
● Dodd was working, Murphy came and asked her not to have an abortion
● Murphy’s lawyer came by later and attempted to give notice orally, but Dodd is deaf and didn’t understand.
○ Dodd looked at the paper, and understood hat they were about
○ but didn’t really understand and was very upset, plus the abortion was scheduled the same day as the court hearing.
○ Dodd did not understand that the hearing could affect her ability to have an abortion.
○ the affadavit would have to have been fied within an hour and a half to get it in before the start of the weekend, which is possible, but normally if you want to reduce the time set for a procedure you must get permission from the court.
Analsyis
● the notice was clear that failure to appear could lead to default judgment
● Dodd was competent and intelligent, and there are no special rules which apply to serving documents on the deaf
● people “lost in the justice system” may be entitled to special treatment, but Dodd is not such a person.
○ it would be heard for a deaf person to get legal counsel on short notice on a long weekend.
● however, based on all the circumstances, notice in this case was insufficient
● further, there may have been fraud in the injunction application - Murphy stated the child was his, but in fact it was not clear this was the case
○ Murphy belieevd it to be the case, but it wasn’t certain.
○ plus Murphy led evidence that Dodd’s life would be in danger, which was completely false
○ this was a fraud on the court.
● so the injunction order will be struck
● the court explicitly chooses not to deal with the status of the fetus, the standing of Murphy, or substantive law.
Ratio
● I think this case is intended to illustrate how procedure can be used to short-circuit substantive rulings
○ especially the initial ruling- why would you grant an injunction here by default!
● it also may serve as a useful analogy for other cases where notice is insufficient, or where a fraud on the court is perpatrated.
Class notes from Murphy v Dodd
● Notice
○ a fudnemental part of the adveserial system since if a person doesn’t have notice they can’t answer or respond to the case
○ an ex parte proceeding occurs where there is no notice at all
■ mareva, piller orders.
○ ex parte proceedings include special duties
■ full and frank disclosure
■ must give the judge everything the other side would say if they were tehre
■ including citing cases against you, explaining problems with your arguments
■ leaving out material facts is a terrible idea
● may have to pay costs personally or be reported to the law society
● Other Means of Addressing the issue
○ Dodd could have appealed the order itself rather than going after it on the basis of notice
■ while the court found fraud here, it didn’t need to- it could have simply found an absence of full and frank diclosure.
○ the court used inherent jurisidction to reconsider the order, which is pretty rare.
○ while the injunction was set aside, the real issue on the merits- whether you ought to be able to get an order stopping someone from having an abortion - was never resolved.
○ so not that great an outcome.
○ perhaps a better result would have been an interim injunction which will only last to preserve the status quo until the cause can be assessed on its merit.
○ in Tremblay and Dague, the SCC chose to address a similar issue even though the woman in question had already gotten an abortion, so the question was laready moot.
■ SCC decided to hear the case anyways to decide the issue
■ they decided to determine whether an injunction can be used to stop an abortion, and decided the courts should not issue these kinds of orders.
R. v. Ferguson, 2008 SCC
Issue
● What is the relationship between the constitution and rulings? What kinds of remedies does the constitution allow?
Facts
● This is the case where teh RCMP shot Darren Varley, and the court granted a constitutional excemption to the mandatory minimum.
Analysis
● s. 12 was not violated in this case, so there is no need to address the issue of constitutional exemptions
○ however, they will be addressed to clarfiy things for lower courts
● clearly there are remedies to s. 12 remedies, the questions are what kind of remeides are avaliable
○ 24(1) is the broad remedy- whatever the court considers apprpriate
■ case by case remedy for unconstitutional government actions
○ 52(1) striking down laws inconsistent with the constitution
● the normal remedy for a s.12 violation is to strike down the law.
● Ferguson argues the mandatory minimum is ordinarily unconstituional, but that it is constitutional in his case.
● Argues that where a mandatory minimum is usually constitutional, it is better to grant an exception that strike it down altogether.
● plus, it seems available on a plain reading- 24(1) gives courts a wide discretion to grant such constitutional remedies as are “appropriate and just”
● But, these arguments suck, and the courts have long been critical of constitutional exceptions.
● Intrusion on the role of parliament
○ s. 52(1) only allows courts to declare laws invalid where they are inconsistent with the constitution.
■ the court should thus avoid doing so, byu severance, reading in and reading down.
○ but adding an exception would run precisely contrary to the intent of parliament, by making discretionary what Parliament indtended to be mandatory.
○ and it is not even clear that Parliament would have passed the law including such an exception.
○ so allowing mandatory minimums intrudes into Parliamentary jruisdiction.
■ whole point of mandatory minimums was to remove judical discretion.
■ Parliament must be taken to have intended what it stated: all convinctions for manslaughter with a firearm will be subject to a 4 year mandatory minimum.
● Remedial scheme of the Charter
○ normal remedy for a law with an unconstitutional effect is to use 52(1)
○ 24(1) is used for unconstitutional government acts which take place under constitutional legitimate laws.
○ so they seve different purposes
■ 52(1) deals with laws, 24(1) with actions.
○ the wording of 24(1) appears broad enough to encompass an exception, but read in context it was clearly intended to apply to acts, not laws.
○ plus 52(1) is written so as to make it mandatory to invalidate laws that are inconsistent with the constitution
■ except where this can be remedied via interpretation
○ plus a broad interpretation of 24(1) could make 52(1) redundant
● The Rule of Law
○ constitutional exceptions also undermine the rule of law.
○ laws should be accessible and intelligible
○ exceptions reduce accesisbility, certainty, clarity and predicatability.
○ it makes it so the law is on the books, but may or may not apply.
○ case-by-case exceptions make appliaction of laws uncrtain.
○ it impairs the ability of citizens to know what the law is and how to conduct themselves.
○ makes it hard for judges to determine when it should apply
○ and it means every case will have to deal with this consittuional issue.
○ plus it makes it difficult for Parliament to know when its laws are constitutional, and when they are not.
Ratio
● Constituional exceptions are not going to be allowed
○ exceptions intrude into the role of parliament by underminig the law as written
○ the upset the remedial scheme of the charter whereby 52(1) applies to laws and 24(1) to government actions
○ and they undermine the rule of law, by reducing accisibility, intelligibility, clarity, and predictability.
● Shows a series of consitutional values.
● Also shows the court dealing with an issue head on rather than limiting itself to the narrowest possible judgment.
Meek v. Fleming
Issue
Facts
● Basically Meek got beat up and wrongfully imprisoned by Fleming, who was a chief inspector
● at the first trial, he lost, but Meek says during that trial Fleming knowingly representend himself as a chief inspector when he had actually been demoted for misconduct, and that the credibility of the parties was critical at trial.
○ basically Fleming said he was places he wasn’t, and had someone else show up at court in other cases pretending to be him.
● Both Fleming and his counsel were fully aware of this, but decided not to disclose it
○ moreover, Fleming showed up out of uniform, while all other police wintiesses were in uniform
■ there was thus no symbol of rank on fleming
○ the other police, Meek’s counsel, and the Judge all referred to Fleming as “inspector” or “chief inspector”, and were never corrected.
● Fleming dissembled and basically said he was an inspector, and it was clear the judge thought he was an inspector.
○ the judge seemed to have put some weight in terms of credibility on this “fact”.
Analysis
● the lengths that Fleming and co. went to conceal his demotion shows how important they thought that fact was.
● So what do you do when new evidence comes out?
○ normally yo uwill order a new trial if the evidence probably would have an important influence on the result of that case
○ but usually a little bit stricter with credibility evidence
■ the evidence must be such that no reasonable juror could act on the evidence of the witness whose character had been called into question.
○ where the judge or jury have been misled, further considerations. apply
● where a party deliberately misleads the court in a material matter, and that deception may reasonably have tipped the decision in his favor, it would be wrong to allow him to retain that judgment.
○ finality is important, but must not upset justice
○ and don’t want to encourage people by allowing the wrongdoer to keep the spoils
○ this must be approached proportionately, but here it is clear that both the judge and jury were misled on an important matter.
● here counsel unduly subordinated his duty to the court in favor of his client.
● while Fleming was not required to reveal something to his discredit, but he shouldn’t have implied or pretended that he maintained a rank he did not have.
○ Fleming and counsel deliberately hid the truth so that he could pretend to be an inspector when he was no such thing.
● Fleming’s counsel paid insufficient regard to his duty towards the court, and his friend the plaintiff.
○ it would be a miscarraige of justice to let the judgment stand.
Ratio
● perhaps an illustration of the adverserial system, and the role that one must play with the court
○ cannot deceive the court, this abrogates your duty towards the court.
● very serious stuff.
● the court allowed a new trial even though the deception didn’t go to the merits of the dispute
○ it went to credibility rather than an element of thetort
● we have to look at the connection between the misdeed and the results it may have influenced
○ the greater the connection, the more likley we are to require a new trial
British Columbia v. Imperial Tobacco Canada, 2005 SCC
Issue
● deals with issues surrounding unwritten constitutional principles
Facts
● basically the tobacco companies are seeking to invalidate laws passed making it easier for the government to recover health care costs.
● basically the legislation creates a cause of action whereby the government of BC can recover from the tobacco manufacturers money spent treating disease in BC, if the disease was caused by a tobacco produce (whether in BC or not)
○ this can be pursued on the aggregate- all people for whom the government has made or can reasonably be expected to make expenditures
● Goverment may use statistics and epidimeology to define that class, and does not need to identify or prove disase for any individual member of the population
○ health care records of individuals are not compellabel.
● Government gets a reverse burden of proof for parts of the claim
○ once the government establsihes that the manufactuer breached a duty to BC residents who were or might have been exposed to cigareattes, and that the exposure could cause or contribute to disease, and that during the breach the manufacturer’s prodcuts were available in BC,
○ the court will presume causation
● so burden rests on manufacturer to show that the breach did not lead to exposure and illness
○ this reverse burden is on BoP
● then the manufacturer will be liable for damages in proportion to its share of the cigarette market.
● all of this operate retrospectively.
● tobacco companies say it is unconstitutional.
Analysis
● Extra-territorial
○ this objection is based on s. 92 of the Constitution Act, which restricts provincial competence to their territories.
○ when a challenge is made for territorial, look to the pith and substance of the act to identify dominant feature, looking at both the puose and the effect
○ if the pith and substance relates to a tangible matter, then just look at the location of the matter
■ if within the province, fine
○ where the legislation relates to an intangible matter, a bit more complicated
■ here we have the creation of a civil cause of action
■ this falls under 92(13) property and civil rights in the province.
■ so suitable head of power found.
■ since this act relates solely to diseases suffered by British Columbians, there is a strong relationship between the enacting territory, the subject of the law, and the persons made subject to it
■ so the law can easily be said to be connected to the province.
■ while some activities in other provinces are relevant, BC is clearly the strongest jurisdiction for this cause of action because there is at all times the critical connection to BC: the action is in relation to expenditures by the BC government for the health care of British Columbians.
● Judicial Independence
○ judicial independence is a foundational priciple of the constitution, and consists essentially in the freedom to render decisision based solely on the law and justice
■ requires that the judiciary be left free to act without improrper interference from other entities, including the government
○ three characteristics:
■ security of tenure, financial security, adminsitrative independence.
○ but the key question is whether the court is free, and is seen to be free, as independent from interference
○ tobacco comapnies say that judicial independence is violated by the rules of procedure in this new cause of action
■ must presume irrational things, and limits the findings of fact made.
■ this interferes with the courts ability to determine the truth, and all-but-guarantees the outcome of the action.
■ the trial is jury rigged against the tobacco company
○ however the new rules have good policy reasons
■ they reflect the systemic advantages the manufacturers have when claims for tobacco-related harm are litigated individual in the normal common law tort actions.
● but this is beside the point- the aquestion is not whether the rules are fair or logical, but whether they interefere with the role of the judiciary.
■ the tobacco commpnies have a big systemic advantage if we were to try the cases through the ordinary tort system
● the modiifed rules are simply aimed at rebalancing a systemic advantage.
○ role of the judiiary is to interpret and apply the law, weighing evidence relevant to legal issues.
○ the judiciary must apply all laws, even those with which it idsagrees.
■ even if those laws are unfair or illogical
■ judicial independence isn’t rule by judges, they must apply the law
○ the argument of the manufacturers misinterprets the nature and scope of the role of the courts
■ their arguments would create judicial governance, not judicial independence
○ to violate judicial independence, laws must actually interfere with the courts judicial role, or with the essential conditions of judicial independence.
■ which did not occur here.
■ the court maintains is adjudicative role and can exercise that role without interference.
■ just because the act shifts certain onuses of proff does not interfere with the courts adjudicative role
○ so not unconstitutional for these reasons.
● Rule of Law
○ rule of law is at the root of our system of government
○ has three principles
■ law is supreme over government as well as individuals
■ there must bbe a system of positive laws which presrve and emobdy the more general principle of normative order
■ the relationship between the state and individuals must be regulated by law
○ none of these principles speak to the terms of legislation, just who it must apply to.
○ The rule of law does have some normative force, and unwritten principles are capable of limiting government actions
○ but there is a lot of debate over what these principels are and what they mean
■ advocates tend to read into the principle of rule of law anything which supports their particular view of what the law should be.
○ tobacco companies say law must be
■ prospective
■ general in character
■ not confer special privilege on the government, unless necessary for effective governance
■ fair civil trials
○ but none of these are found in the jurisprudence
○ and acknolwedging these kinds of principles of rule of law as binding woud undermine the role of judicial review
■ because many of these principles are expansions of enumerated rights, and recognizing them woud render the charter redundant.
■ and because there are other principles at play- like democracy and constittutionalism- that favor upholding the law.
■ in a constitutional democracy protection from laws that some feel are unfair or unwise depends on the balance box and the written law.
● Prospecitivity
○ there is a presumption that laws should not be given retroactive effect, but if the law is explicit, they can be retroactive.
○ the presumption is that if parliament is explicit, it has decided the unfairness resulting from retrospective laws is worth the price in terms of policy effectiveness
○ plus, Common Law changes are always retrospective- the court applies the new common law principle to thee same case from whcih it emerges, like in Donahue and Stevenson
● Generality in the Law, Ordinary Law for the Government, and Fair civil trial.
○ laws which specifically benefit the Crown and target specific individuals are constitutional
○ there is no right to have your civil trial follow the ordinary civil rules
■ plus these are not unfair rules: the tobacco companies still get a public hearing, before an independent and impartial court, in which they may contest the claims of the P and adduce evidence in their defence.
Ratio
● Basically not going to get too far on unwritten principles
● sets out some of the basic concepts of fair trial and so on, as well as tying the legtimiacy of judicial review to an appropriate relationship with parliament.
● the focus seems to be on maintaining the correct relationship between judges and the law
● also shows how the government can change procedure to affect policy outcomes, and how the courts should tolerate that.
|Commencement of Proceedings |
1. Topics:
(a) Jurisdiction
Inherent Jurisdiction
● masters have a narrow range of competence as compared to judges
○ they cannot proceed over any final decisions
○ this is a product of history
○ as the judicial system in England moved from the king and his delegates dispensing rough justice to a more orderly system of courts, designated judges were appointed and imbued with inherent jurisdiction to do whatever neecessary to ensure the proper administration of justice
● inherent jurisdiction si the idea that there is a superior court judge who does not derive power from a set of rules or from statute, and if a new situation arose that judge can craft a new legal remedy
● masters cannot make an injunctino, only superior court judges can, since it is an exercise of inherent jurisdiction
○ this includes BC supreme court judges
○ not provincial court judges or masters.
○ SC judges were the first designated judges in the colony of BC
○ reaching across the Atlantic, there was a handing of power to the colonial judges
○ neither the Provincial court nor the Court of Appeal have original jurisdiction
○ the Court of Appeal boot strapped intself into inherent jurisdictions
Chambers
● there is a clerk who calls up the cases
● lawyers will argue on the basis of affidavits
● chambers judge here this barrage of law and facts in a compressed time period, and will normally rule right away
● the master composes his judgment on the spot and must speak slowly so as to be recorded
Forum
● basically two questions
○ Jurisdcition simpliciter- Does the court have the ability to take the case?
○ Forum Conveniens - OUght the court take the case
● comity is the principle that courts should respect the legal systems and courts of other counrtries
○ the laws of comity have drastically reduced the role of forum shopping and so on
○ courts must now ask themselves whether they are the most appropriate forum to hear the case
■ which court has the most real and substantial connection?
Limitation Periods
● hugely imporant
● if you fail to advise your client correctly regarding the limitation periods, you may be liable for the full value of the claim
● there may be multiple applicable limitatoin periods
● normally limitation period begins at Discoverability
○ general common law principle: the clock does not begin to run until the material facts on which a claim is based were or ought to have been discovered by the Plaintiff.
■ there is a degree of due diligence implied here.
Discoverabliity
● the term used to determine when the clock starts ticking for the purpose of limitation period
● postponement
○ the idea that a claim may not start running at the normal time the cause of actio occurs- may be where there has been an injury and you have suffered loss
○ clock won’t start in certain circumstances where the P wouldn’t reasonablly know they had a cause of action
■ the harm was latent, they were a minor, they were in a coma, etc.
(c) Different forms of procedure and consequences: notice of claim versus petition
Notice of Claim
● it is important that this is correctly drafted, as a defective claim can deep-six an action
○ you want to be very sure you have listed the right party
● you can get this amended, but amendment takes time at this can run up against limitations
○ we had an example of class counsel who were trying an automotive case, but the longer they took before they got to trial the more people would be barred by statute
○ they lost at chambers, and by the time the appeal reached the SCC it was too late since the money no longer added up
● recall legsilation was another example
○ there was an effort to recall NDP MLAs, however the notice of claim only listed three plaintiffs
■ it would have been easy to include voter plaintiffs from every jurisdiction, but htey didn’t do so.
○ The courts determined you had to have a plaintiff from the riding of the MLA you were trying to recall
○ so due to a stupid omission, the recall effort failed
Rule 1-3 Object of Rules
● great rule, which sets out the object of the rules is to secure the just, speedy and inexpensive determination of the case on its merits
○ this won’t happen ifn a minor procedural screw-up scuttles the case
○ however the court is often strict with respect to service
● it is thus rare to find a procedural error that cannot be fixed.
A case ordinarily begins with a notice of civil claim setting out the facts and the remedy sought, which is filed in the court remedy and served on the defendant
● once D has realized they are in a lawsuit, they will prepare a response to the civil claim responding to the factual claims made out in the civil claim
● the P will respond to this in the form of the reply
○ D may be able to get a sur reply, but quite rare
● these pleadings set out a list of what is relevant to the dispute, so it must be gotten right
Cases may be either Actions or Petition
● an action is about 90% of what we think of as “court”
○ documents, discovery, trial, cross-examination
○ all proceeding from the notice of claim
○ plaintiff versus defendants
○ often very costly
○ you may take positions in the alternative
○ there will be discovery, actual witnesess and crossexaminations
● petitions
○ you must take a single position on the facts
○ you state the facts you believe occured- giving only one version of reality
○ the affadavits will set out that the alledged events occured.
○ this is basically a request to the court for permission to do something
○ usually comes up where a statute authorizes a certain remedy
■ the stattue says “Someone may apply to the corut for an order”
■ this presumptively requires you to go ahead by way of petitions.
● under the new rule the division between petition and action is very clear and precise
○ there is a narrow band of items that must be brought by petition
○ everything else is presumptively a proceeding by action and notice of civil claim.
Rule 2-1(2) Sets out the rules for petitions
● the person starting the proceeding is the only person interested in the outcome- no opposing party
● the sole or principle question at issue is one of the construction of the document
○ so what does the contract mean, NOT whether or not the contract was breached
● no significant credibility or factual problems, so all the evidence will be the contract and accompanying affidavits setting out the facts
● may relate to guardianships or trusts, could be a bankruptcy proceeding
Leung Case- Optional Reading
● the judge forgave the parties for proceeding improperly
○ though typically the party who made the mistake will be sanctioned through a cost award
○ the order was discretionary- so the judge could have dismissed the claim altogether, and may well have done so if there was more prejudice
Petitions may be converted into Action
● if they’re really messy or require further facts and evidence, the court may allow a case started as a petition to be converted into an action.
● this occurs under 22-7(3), a remedial provision saying that a case does not need to be struck just begins it started under the wrong originating proceeding
Old rules
● Had two stages
○ writ
■ told the D he was being sude
■ told the D he had to appear and a brief section (one or two lines) outlining the case, which could be fleshed out later in the statement of claim
○ statement of claim
● often the filling of the writ would provoke settlement even before the statement of claim could be made out.
● it was often much faster to get a writ done quickly as compared to a notice of civil claim, which could help with the periods of limitation, since the limitation period is measure against the filing of the doucment in court.
● now you must file the notice of claim itself
○ however, in order to get around the statute of limitations, it is only necessary that the notice be filed- not that the adverse party be notified
Notice of Claim
● now the only originating document for an action
○ must contain the facts, the damages sought, the connection to BC, etc.
● served on the other party and the registry
○ until D is sued, they may not know they’re being sued
○ it may be wise to delay service if you are seeking an Anton Piller order or Mareva injunction.
● must be renewed once yearly
○ can renew once, then again
○ the master cannot allow you to renew a third time, though presumably a jduge can
○ courts increasingly sceptical about renewals
Service
● court is strict with res[pect to service
● if the service was deficient, the proceeding may be rendered a nullity, since it is wholly unfair to pronounce judgment against someone who has not been served and notified.
●
Hypotheticals
● Door slammed at process server, server slips the notice under the crack, the defendant kicks it back
○ counts as service beacuse the D understood what the notice was enough to reject it.
● D running away, server balls up the notice and throws it at the D. It bounces off D and he runs away
○ no service, because it bounced away and the D never saw it.
● In a room full of people, the server announces the notice is for D, and leaves it in the room for D
○ counts as service since close enough proximity and certain that D was there. It is critical, however, to be sure that D is actually sure.
● the “i’m not touching it” game
○ counts as service, since there is disclosure of the notice in front of the party, who has the opportunity to take it but refuses to do so
● in a divorce case the wife serve’s the husband’s papers to the mistress, who gives them to the husband
○ this counts as service
○ but if the mistress puts it in an evelope and loses it, or otherwise doesn’t show it to the husband, no service.
● Service to a recent immigrant who speaks no English. The server gives him the papers and walks away
○ probably counts though no case as of yet
● the court is basically flexible, balancing the strenth of some factors of delivery against weaknesses of other factors.
2. Readings:
(a) Casebook
Orazio v. Ciulla, 1966 BCSC
Issue
● what is necessary to affect notice?
Facts:
● Solicitor (S) worked for D
● D had insurance, and everyone knew S worked for D
● S shared an office with the counsel for P, but no business relationship
● At some point, S took over from P’s counsel negotiations with counsel for D
● S took from P the notice of civil claim, and gave it to D, then S put it somewhere in the office
○ D claimed to be unclear that he was being served with notice
Analysis
● was D properly served?
○ D says no, since while S showed him the summons, S then put it in his office rather than giving it to D.
○ D says you have to actually leave the notice with him.
● the point of service is to give notice to the party served, so they know what is going on and what they have to do.
● services must make it clear what the document is.
○ so just handing someone a document in a closed envelope is not service, nor his handing them a document that they throw away without reading.
● basically you must know that the documents is a notice or summons, and know the general nature of the claim.
○ so mere personal devliery is not sufficient.
○ but you don’t necessarily have to leave a copy of the document with the D personally either.
● the test
○ the document must be delivered so that under the circumstnaces the court can conclude that the person knew or reasonably ought to have known the nature of the notice and the general nature of the claim it advances.
● here D knew the nature of the claim and basically the nature of the dcoument, so notice was complete.
Ratio:
● the document must be delivered so that under the circumstnaces the court can conclude that the person knew or reasonably ought to have known the nature of the notice and the general nature of the claim it advances.
Credit Foncier v. McGuire,1979 BCSC
Issue
● what counts as impractical for the purpose of susbtituted service?
Facts
● The process server came to the house of the defendents
○ the old lady in the defendant’s house refused to open the door or accept any documents
○ turns out she was likely the housekeeper, and the Ds were away
○ so the process server posted the documents on the door- served substitutionally
● But actually, D was in prison
Analysis
● the rules require that a petition and copies of all documents in support be served on all persons who may be affected by the order sought
● where this is impractical, the court may order substituted service, whether or not there is evidence that the document will probably reach the person to be served or will probably come to the attention of the person evading service.
● but what counts as impractical?
○ you must show the judge that personal service cannot be usefully effected or will involve too great a cost.
○ you must show that reasonable steps have been taken to locate the party to be served and that reasonable efferts have been made to affect personal service
■ reaosnableness is contextual
■ the type of relief and amount requested may change what is reasonable in terms of expenses and so on.
● typically you have the sheriff officer show up a few time, finding no one home, leaves a card, and the party still evades service.
● if you get substituted service, you don’t need to show they will actually likely get the document, but you still need to include all the relevant facts
● delay or difficulty is not enough
Ratio
● in order to get substituted service, you must show that personal service cannot be usefully effected or will involve too great a cost
● you must show that reasonable steps have been taken to locate the party to be serve, and if you do locate him, you must show that reasonable efforts have been made to affect personal service
○ reasonableness assessed contextually.
Austin v. Rescon Construction, 1986, BCSC
Issue
● when can you have a summary judgment set aside?
Facts:
● P says D illegallly trespassed by inserting anchor bolts under the surface of the P’s land.
● P served the notice on the D’s counsel, T
● T asked for particulars, which P provided, stating that if D did not file a statement of defence, P would apply for default judgment.
● D didn’t, but T says that P’s lawyer agreed to give him ore time.
● so Default judgment entered, but D wants it set aside.
Analysis
● in order to have a default judgment set aside, you must show
○ that you did not deliberately or wilfully fail to enter an appearance or file a defence
○ that youy made the application to set aside the judgment as soon as reasonable possible
○ that you have a meritorious defence, or at least a defence worthy of investigation.
● here there was misunderstanding, and there was no wilful or deliberate failure on the part of D to file a notice of defence
● and there is a meritorious defence.
● so D will have to pay the costs relating to the summary judgment, but the summary judgment is set aside and the D will file a new statement of defence
Ratio
● n order to have a default judgment set aside, you must show
○ that you did not deliberately or wilfully fail to enter an appearance or file a defence
○ that youy made the application to set aside the judgment as soon as reasonable possible
○ that you have a meritorious defence, or at least a defence worthy of investigation.
Schmid v. Lacey, 1991 BCCA
Issue
● What constitutes a defence worthy of investigation for the prupose of having a summary judgment set aside?
Facts:
● D and P had a disagreement over the cutting down of trees
● D was served with notice, but chose not to respond
● so default judgment lodged.
● D wants to have the judgment set aside
Analysis
● D says it should be set aside for two reasons
○ D believed a settlement had been reached
■ this is set out in a fairly deficient affadvit
■ no particulars of the settlement, jsut D says one has been reached
■ this is not enough
○ D says someone else did it
■ again, bare assertion, nonething more.
● but P has an affadavit saying she told D at the start of the logging, and D refused to stop
● D provides no particulars as to this other person
● so basically D hasn’t provided sufficient grounds to set aside the judgment.
● in order to show a “defence worthy of investigation”, you have to provide some details so the judge can decide whether there is in fact such a defence
Ratio
● in order to show a defence worthy of investigation, you have to provide sufficient details such taht the court can assess whether there is indeed such a defence.
Professional Conduct Handbook, c.11, s. 12, p. 658
● lawyers must fulfill all their undertakings, make no undertakings that cannot be fulfilled, and should scrupulously honor any trust
○ undertakings and trusts should be clear and in writing.
● a lawyer who knows that a lawyer has been consulted should not proceed by default without inquiring with the other lawyer and warning the other party
● lawyers should not threaten to report another lawyer’s past illegal or unprofessional conduct to the law society.
Global Light Telecommunications Inc. v. GST Telecommunications, 1999 BCSC
Issue
*where should an issue be tried?
Facts
● GST says it negotiated an opportunity to create a network in Mexico: Bestel Opportunity, spending 2 million in the process.
○ Mextel created to hold GST’s 49% interest in the Bestel opportunity
○ Global ended up holding these shares in Mextel
○ GST used to own global, but now controls a minority interest
● GST claims that some of its directors transferred the shares from GUS to Global for no consideration, loading up on options and stock in order to make a killing.
● GST started an action in California for fraud, trying to get the shares back.
● the Diretors said that California was forum non coveniens, brefrering BC, and the court agreed
○ California had little interest in a fraud action between Canadian companies dealing with Mexican businesses.
● GST also launched actions in New York, and Washington State.
● Then action in BC between Global/Mextel and GST
● the issue is whether the BC action should be stayed because the BC court has no jursidction or should refuse to exercise its jursidiction in favour of an American forum
Analysis
● in order to assess whether there is jurisdiction simpliciter, look to see whether there is a real and substantial connection between the court and either the defendat or the subject of the litimgation.
● if there is jurisdiction simpliciter, the court may refuse to exercise jursidiction if there is a clearly more convenient or appropriate forum elsewhere
○ the real and susbtantial connection test applies here as well
● in determinig the appropriate forum, the onus ois on the D to show another forum that is clearly more convenient or appropriate
● the factors in the real and substantial connection test are:
○ parties residences and places of business
○ where the cause of action arose
○ where the damage was suffered
○ any juridical advantages and disadvantages
○ convenience and expense
○ governing law
○ existence of parallel proceedings
● parallel proceedings should be avoided unless the party resisting the action to stay can show a possible loss of juridical advantage.
● the goal is to ensure the litigation is tried in the locatio nwith the closest connection, not to ensure one party the most advantage.
● if the court is satisfied that both BC and the foreign courts are appropriate, but netiher is clearly more appropriate, then the court will favor the party who made the proceedings first.
● Here, GST is a BC company with stock on the VSE
● Global is managed in BC
● the shares were over a mexican company, but where traded in BC
● so there is a real and substantial connection to BC
● so can D show a MORE convenient forum?
● D says washington is most appropriate
○ economic interference claim is grounded in actions and counterclaims which were commenced in the US
■ P is suing D for having sued P in the other jurisdiction
■ this is novel type of claim
○ D lives in washington
■ well so what, P is in BC
○ Parallel proceedings
■ P says the action in Washington not truly parallel since deals with a different issue
■ but the same factual scenario is going to come up
■ if parallel proceedings exist and the foreing forum is not clearly more appropriate, comity suggests the court which first took jurisidction over the parties or subject matter
■ the action in Washington started a day earlier but only became parallel after the BC action began.
■ since BC was first, comity suggests BC should get it.
○ juridical advantage
■ D says they would have an advantage in WA because there would be jury and deposition of witnesses
● but jruidical advantage applies only to substantive findings, not procedural ones like deposing of witnesses
● Washington jury not more likely to render a correct finding than a BCSC justice.
Ratio
● In order to find jurisdiction simpliciter, real and susbtantial connection test
○ parties residences and places of business
○ where the cause of action arose
○ where the damage was suffered
○ any juridical advantages and disadvantages
○ convenience and expense
○ governing law
○ existence of parallel proceedings
● use same test to assess whether another forum would be more covenient
● principle of comity suggests whoever started the procedure first should win, all other things equal.
K.L.B. v. British Columbia, 2003 SCC
Issues
● How does a limitation period work?
Facts
● KLB were siblings, abused while in foster homes
● the government placement agency ought to have known better than to place them with the homes
● KLB advanced four grounds whereby the government was liable
○ direct neglgience, viacrious liability for the conduct of foster parents, breach of a non-delegable duty by the government, breach of a fiduciary duty by the government
Analysis
● Direct Negligence by the Government
○ government had a duty to place children into adequate foster homes and to supervise their stay
○ the stute itself charges the ministry to make such arrangements for the forster children as will best meet the needs of the chilrden, imposing a high standard of care.
○ does not make the government a guarantor against all harm, but it holds the government responsible for harm sustained by the children in foster care when, judged by the standards of the day, it was reasonably foreseeable that the government’s conduct would expose these children to this type of harm.
○ while the standards fo the time where lower, they still were not met.
○ so government liable for direct negligence.
● Are the appellants tort actions barred by the limitation act?
○ limitation act imposes a two-year lmitation period begining when a child reaches the age of majority
■ this was 4 years before the application was made.
○ KLB says that the tort actions are not barred because the cause of action was not reaosnably discoverable prior to the commencement of the action
■ they say they did not have a susbtantial awareness of the harm and its likely cause prior to commencing the action
■ this is based on a psychologist who says KLB lacked a psychological connection between the abuse and their current state.
○ but “thorough understanding” is too high a test for limitatios.
○ KLB knew the abuse had occured when it occured.
○ KLB first consulted a lawyer about the issue 8 years before taking action, but just didn’t follow up, showing KLB had some idea of the cause of action.
○ KLB knew there was a cuase of action with a reasonable prospect of success.
Ratio
● under the BC Limitation act, you have a two-year limitation period for actions resulting from periods of injury
○ this period begins once you know you have a reasonable cause of action, basically
○ once the injury is discoverable
Snyder v. Snyder, 19992 BCSC
Issue
● When should a proceeding begin by way of an application as opposed to a statement of claim?
Analysis
● the normal, residual way of proceeding is by way of a notice of claim, but some claims may be made by application where set out in statute.
● where a statute authorizes an application to be made to the court by a particular mode, or authroizes an application to be made to the court and does not specify the mode of application, then the application is to be made by originating application under rule 10 or by interlocutory application under rule 44 (these are old rule numbers).
● where an originating appliction is authorized and the mode of application is specified in the enacting act, then the proceedings must begin by petition
● where an interlocutory applciation is authorized and the mode of application is specified in the Act or regulation the application must be brought by notice of motion
● if an anactment authorizes an application but is silent as to the mode of application, then if originating in nature it must be broughht by petition, and if interlocutory in nature it must be brought by motion.
● where an enactment merely states that a court may make some order or exercise some jurisdcition, the nature of the enactment will dtermine whether the appropriate procedure is by writ of summons, petition, or notice of motion
● if the encatment autorizes an appeal, the proceeding must commence by a notice of appeal.
● if an enactmet authorizes a proceeding to be commenced but does not specify that it shall be commenced by an application to the court, then the proceeding must be commenced by a write of summons.
Ratio
● not sure, review and cross against textbook.
Court Jurisdiction and Proceedings Transfer Act (2003)
● covers when a court is competent in a proceeding
○ when the person is a plaintiff in a nother proceeding in the court to which the proceeding is a counterclaim
○ the coruse of proceeding the person submits to the courts’ jurisdiction
○ the person lives in BC or has a real and substantial connection to BC.
● proceedings can be brought against vessles if they are served or arrested in BC
● even if there is no normal territorial competence, the court may rule if there is no court outside BC where the action can be started, or the commencement of a proceeding outside of BC cannot reasonably be required
● sets out the real and substantial connection, which is prsumed to exist if
○ it deals with property in BC
○ it deals with an estate of a deceased person who has immovable properyt in BC, or movable property and the dead guy lived in BC
○ deals with contracts and deeds dealing with property in BC or dead people who lived in BC
○ deals with assets held in trust that are located in BC
○ trustee livs in BC
○ the administration of the trust is carried out in BC
○ the trust is governed byt he law of BC because it is expressly set out as such in the tratu document
○ contractual issues that were to be performed in BC, BC is expressly set out as the appropraite forum, or the contract was for goods or service from a business in BC
○ restitutionary oblgiations that arose in BC
○ torts committed in BC
○ deals with a business carried out in BC
○ claims for an injunction ordering a party to do/not to some in BC, or in relation to property in BC
○ determination of the status of someone who lives in BC
○ enforcement of a judgment made inside or outside BC
○ recovery of taxes or indebtedness brought by the government of BC
● court may decline to exercise discretion on the grounds that another court may be more appropriate, considering:
○ the comparative convenience and expense for the parties to the proceedings, and their witnesses
○ the law to be applies in the proceeding
○ the desirability ofa voiding multiple legal proceedings
○ the desirability of avoiding conficlting decisions
○ the enforcement of an eventual judgment
○ the fair and efficient working of the Canadian legal system as a whole.
● in case of conflict between this act and other acts which expressly confer jurisdiction on another court, the other act wins.
Tabs A - I
(b) White Book:
(i) Rules
4-2 (old 4) Ordinary Service
● ordinary service may occur by leaving it at a person’s address
○ mailing it to the person
○ fax
○ email
● Counts as served if it is left at the address before 4PM M-F
● If served of weekend or holiday, served next business day
● if served by mail, it is deemed received one week after the day of mailing
● may serve by fax where less than 30 days, if transmitted between 5PM and 8AM, or at another covenient time
● documents transmitted by email/fax follow same rules as delivery to address
● if no none address for service, or if no requirement for personal service, the docment may be served by mailing to lawyer or if no lawyer, last none address.
● these rules cover delivery of documents in the course of litigation, and is different from personal service.
● there is an expectation that the parties will be alert on service of documents
● once personal service has occured, there will be an address given for ordinary service in BC- could also be a fax number or an email address.
● the exception here is where you are making a claim of contempt of court, where personal service is once again required, since the consequences include imprisonment.
● subpoenas must also be served personally
2-1 and 3-1 (old 8) Choosing the correct form of proceeding & notice of civil claim
● 2-1 sets out procedure for notice of Civil claim
○ default is this procedure
● 2-1(2) sets out the times you can use petitions, and if it is under the list you must do it by petition.
● Must file for petition in certian circumstances
○ the person filling is the only interested party or there is no person against whom relief is sought
○ sole or principal question is construction of a will, deed, or contract
○ relief or direction deals with the execution of a trust or administration of an estate, or relates to mainteance, guardian, etc.
○ or deals with solicitor client privilege
● to start a proceeding under Part 2 must file a notice of civil claim
○ it must
■ set out the material facts
■ set out the relief sought
■ set out the legal basis for relief
■ set ou the proposed place of trial
■ if P is suing in a representative capacity, must expalin that capacity
3-2 (old 9) Serving and renewing the notice of civil claim
● original notice lasts 12 months, but if it has not be served on the D, P may apply to renew for another 12 months, this may be done a couple times
● notice must be given again upon renewal.
16-1 (old 10) Petitions
● must file a petion in form 66 with affadavits
● must be personally served on all interested parties
● a person served who wishes to receive notice of the time and ate of the hearing must file a response with affadavits, and serve copies on the petitioner and other parties of record
● respons must explain whether the respondent consents, opposes, or takes no position on the order, and if the respondent is in opposition, must set out the factual and legal bases on which the order should not be granted, and set out affadavits and so on
● petitioner may respond again with more affadavits
● unless the parties consent, this is all the affadavits the parties get- the initial ones and those filed in response.
● may ammend a petition or response to petition with leave from the court, or once without leave of the court before service and with consent of all parties
● petitions last 12 months, but may be renewed for up to 12 moths, and may be repeated
○ notice again
4-3 (old 11) Personal Service
● Documents must be served by personal service if they are:
○ a notice of civil claim
○ a petition
○ counterclaim if the counterclaim is against someone who is not a party of record
○ subpeona to witness who is not a party of record
○ application for contempt
● Personal service is accomplished by
○ leaving a copy of the documents with the person
○ if they are a corporation, by leaving the document with a chief officer, with the city clerk, with a managger or other agent of the corporation
○ for a mentaclly incapable by leave a copy with the committee or with the guardian
● Personal service is deemed to be completed when it is served before 4 on a M-F
● if the pleading or petition has not been served on a person, but that person files a responding pleading or attends the proceeding, the original petition or pleading is deemed served on that person
● lawyers shoujld avoid serving documents themselves, since pesonal service requires an affadavit assuring it was completed, and this brings to light the possibility of not being believed.
● generally speaking, personal service is effected when you deliver the notice to the person and inform them of the nature of the document.
4-4 (old 12) Alternative Methods of Service
● if it is impracticable to serve a document by personal service, or if the person who needs to be served is evading service or cannot be found after a dilligent search, the court may order a substituted service.
● may serve by advertisement in some cases.
● this is quite common but easy to screw up.
○ it is best to try a few different forms of substitute service to show the court you’re responsible
○ so put it in the newspaper, give it to the friend, put it in the mailsot, etc.
● in order to get alternative service must show
○ impractibale (not capable of being done usefully or at too great a cost)
■ basically whether the means necessary to personally serve are disproportionate
○ the person cannot be found after a personal search, or is evading service.
4-5 (old 13) Service Outside BC
● Documents may be served on people out BC without leave in most circumstances, basically where there is a real and substantial connection
● if leave must be granted, must produce an affadvait showing what place the person is likely to be found, and the grounds of the application
● must service the person notified with the filed notice and affadavits
● parties to contract may specifiy a given jurisdiction has jurisdiction
● service abroad and proof of service may be accomplished by the BC rules, by the laws in the place at hand (if those laws can reasonably be expected to accomplish notice).
● basically there are three options
○ service under our rules, service under their rules, and service under the Hague convention
● Hague convention typically entials government-to-government service
○ “non-objecting states” is a list of those where the hague-signatories accept personal service
○ “objecting states” are much harder.
● may be best to use the service method of the location fo the assets, since a foreign court may refuse to enforce judgment if the method of service was difficient
3-3 (old 14) Responding to a Notice of Civil Claim
● to respond must file a form 2 and serve it on the P
○ must idicate the facts admitted, denied, or outside the knowledge of the D
○ if the facts are denied, D must explain his version of the facts
○ set out in a concise statement any additional material facts
○ must indicate the position of the D with respect to the relief sought, and if opposed, set out the legal basis for that opposition
● if the notice of civil claim is received in Canada, the person has 3 weeks to respond
○ if US, 35 days
○ elsewhere, 49 days
● an allegatio nof fact it a notice of civil claim, if not admitted, deneid, or stated to be outside the knowledge of D, is deemed to be outside the nowledge of D
○ so default is ingnorance
3-8 (old 17 and 25) Default Judgment
● If D does not respond to a notice of civil claim within the time period, P may proceed by showing proof of service and proof that D didn’t respond, as well as adraft default judgment order.
○ 21 days in Canada, 35 in US, 49 internationally
● If P’s claim was for a specific amount of money, the amount in the default judgment may not exceed the amount paid plus costs plus interest
● if P’s claim was for money that was neitehr specific nro ascertainable, P may obtain a judgment for damages to be assessed plus costs.
● court may set aside or vary default judgment
● it may be worth passing up on the chance to file default judgment
○ you may want the D to be discovered to determine the extent of damages.
○ or if you think it is very likely that the default judgment will be set aside, you wlil avoid the costs of filing and defending.
○ a person who you could get default judgment against may be hard to collect from anyways
○ if you know a lawyer is working on the case, before applying for default judgment you should let them know you are going to apply
○ practically speaking often best just to be the ehtical guy, send a notice that you will file for default judgment, then follow up with another
■ if the court sees you bending over backwards to assist the other party, less likely that the judgment will be set aside.
● may set aside Default Judgment under Miracle Feeds test
○ failure to appear/file a defence was not deliberate
○ D has made the application to set aside as soon as reasonably possible
○ D has shown a meritorious defence worthy of investigation
15-1 (old 66) Fast Track Litigation Proceedings
● only available where the action is for money, real estate, builders lien, personal property, and the value is less than 100K, exclusive of interests and cost
● trial can be completed in 3 days
● the parties consent, or the court makes an order
● while the claim is for 100, the court can in fact award more
● cannot be a class action
● must follow a case planning conference
● there will be no jury
● the oral exaimnations for dsivory of a party of record who is examined in relation to a party of record must not be more than 2 hours, or longer if that person consents
● all examinations for discovery must be complete before the trial date, which will be set no later than 4 monts after the litigation
● if the trial will take more than 3 days, the court may adjourn the trial to a date to be fixed as if the action was not subject to rule 15
● costs are highly limited- 3 day trial maxes out at 11K
LIMITATION ACT: review generally, but focus on ss. 3, 5, 6, 7
● Many torts limited to 2 years
○ injury to property or person
○ trespass, defamation, false imprisonment, malicious prosecution
● some actions limited to 10 years
○ estate actions, fraudulent breach of trust and related trcking down of money
● some actions have no liitation periods
○ possession of land
○ redemptio nof collatareal
● any thing not mentioned has a 6 year limitation period.
● if the adverse party confirrms your cause of action within the limitation period, you’re fine even if it takes much longer to resolve
○ you do this by acknowledging a cause of action of another
○ or make a payment, or otherwise seem to accept the cause of action in a formal way
○ acknowleddgemnt must be made in writing and signed
● for fraud or breach of trust, the running time for the limitation is postponed and doesnt’ start up until the beneficiary becomes fully aware of the fraud or breach of trust
● for most torts that we will deal with, the period of limitations is postponed and doesn’t start running until the idenitiy of D is known to P, and the facts are such that a resonable person, knowing what P knows, would seek advice on those facts as showing a reasonable cause of action
● if the person is a minor or otherwise incapable, the time doesn’t start running until they stop being disabled
|Pleadings and Parties |
1. Topics:
(a) Substantive adequacy of pleadings
(b) Particulars of pleadings
(c) Striking vexatious pleadings
(d) Naming parties
Purpose of Pleadings
● clearly and precisely define issues
● require each party to give fair notice to the other
● to avoid suprises/trial by ambush
● to create a permanent record of the issues raised
○ to avoid relitigation nad to help on appeal.
● raising issues that are not truly relevant may lead to an adverse award of costs
Case initiated by a notice of civil claim
● D responds by a “response to civil claim”
● If D claims against P, files a “counter-claim”
● IF D claims against a third party, files a “third-party notice”
○ D1’s claim against D2 is also a third party notice, although sometimes called a cross-claim
● P can reply to D’s affirmative defence by a reply.
Basic Component of Pleadings
● Material facts giving rise to the cause of action
○ the facts which state what happened, not evidence showing proof of what happened
○ the shorter the better- no need to color the claim, just set out the essential facts
○ may plead in the alternative, but not inconsistent allegations
● reponse to civil claim has three options
○ Denial
■ “traverse”- it didn’t happen
○ confessio nand avoidance
■ it’s true, but it’s not the whole story
○ demurrer
■ even assuming the facts are true, the claim is flawed in law
■ may be dangerous since the common law may change retrospectively to make a flawed claim good
● Donohue v Stevenson
● avoid boilerplate and excess verbiage
● may be best to be quite broad initially to ensure wide disclosure, but once you have a better idea what is at stake, you could amend your statement to show the court you aren’t overstating the issue and to eliminate the particulars which are no longer relevant
Particulars
● more specific facts underpining the case
○ necessary for claims of unconscionability, misrepresentation, etc
■ if you say someone comitted a fraud, you need to show the statement, what was said, who it was said to, why it was a misrepresentation
■ also necessary for special damages
○ discretionary
■ court may order particulars
● the purpose of particulars are to
○ inform the other side of the case to be met to help them prepare for trial
○ to limit the generality of the proceeding, and to limit the issues that need to be tried and discovered.
○ discovery is not a replacement to particulars
■ in disocvery you want to know what you are looking for and what issues must be resolved
■ you have a limited time period so you want to have a goal
■ pleadings set out the goal posts, while discovery is about learning what happened
○ pleadings set out the scope of the case while discovery is about getting to the truth.
Amendments
● May be a response to:
○ a change in circumstances
○ or an erro in the first place
● courts like amendments to a certain degree, since it helps the court focus on the truly necessary issues rather than the unecessary stuff
● courts should only refuse to grant an amendment where there is prejudice taht cannot otehrwise be remedied
● amendments may be made any time up to and after trial
● good practice is to amend after discovery to remove the unecessary stuff
○ not mandatory but good practice.
● you get one free amendment as of right prior to trial
● typically amendemnts will be allowed as long as it enables teh true isseus to be adjudicate
● evidence is not a precondition to amendment
● if the amendment occurs late, the court may order new dsicovery
Striking Motions
● Motions may be struck for two reasons
○ there is no reaosnable grounds for the actio nor the defence
■ regardless of the evidence, teh facts pleaded disclose no reasonable case
■ a fatal legal flaw
○ the action is scandalous, vexatious, or an abuse of process
● this is not about whether the person will be able to prove the facts at trial, but whether the pleadings themselves disclose a cause of action
● often it will be better to adjourn and ament rather tha strike, since most technical defects can probably be amended
● strikes will only really occur if there is no way the pleading can be done properly
● the test is whether assuming all the facts are true it is plain and obvious that the notice of civil claim discloses no reasonable basis.
2. Readings:
(a) Casebook:
S. Mulhall, QC, “Drafting Pleadings”
● Pleadings have 4 functions
○ precisely define the issue or questions in dispute and which need to be determined by the court
■ effective pleadings narrow the issues and reduce the time required to try the action
○ to give fair notice of the opposing case
○ to inform the court of the events giving rise to the litigation and the issue between parties
■ this sets the limit of the action which will not be extended without amendments
○ to provide a permanent record of the issues raised in the action which is readily avialbe for future litigatns.
● All material facts must be plead, and should be as brief as the case will permit
○ may also plead law
● but the evidence proving the facts should not be led
○ facts are what happened
○ evidence is the proof of the facts
● Rules of pleadings
○ typically you don’t quote the documents themselves, but you can if this is a concise way of explaining their meaning
○ you shouldn’t plead facts or make new cliams inconsistent with prior pleadings
■ so you need to plead in the alternative
○ the incoroproation of a corporate party is admitted unless specifically denied
○ if there is an allegation of fraud, breach of trust, etc, the particulars of that allegation must be laid out in the pleadings
■ particulars are very close to evidence
○ you may set off or set up by coutnerclaims in a pleading
○ a demand for particulars does not operate as a stay of proceedings or give an extension of time to deliver a pleading.
■ without consent from the other side, the party must apply to court for an extention pending reply to the demand for particulars
○ general denial of allegations is sfuficent, but you must answer the point of substance
■ good counsel will plead those points of defence upon which the case will be determined
■ better to set out the reasons why you have a defence rather than just denying everything
● general principles
○ set out ID of parties, and their status
○ facts to demonstrate the court has jurisdiction over the parties
○ what, where, when, and how things happened
○ why they happened
○ relief thought
○ may wish to anticipate defence
● consider
○ presentation, use of schedules
○ pleading of statues
○ burden of proof
○ reference to other pleadings
● three forces of defence
○ denial, confession and avoidance (the claim is true but incomplete) and demurrer (even if the claim is true, there is no claim in law).
● You MUST plead
○ any issues you plan to argue about limitations, illegality, res judicata and estoppel
○ if you fail to do so it is POSSIBLE that the court may adjourn and allow you to ammend your claim.
S. Martin, “Pleadings”
● Objectives of a pleading is to prepare an orderly and succint statement of claim or defence
○ pleadings are the first exposure the judge has to the case and it is important to strike a responsive chord by providing a carefully prepared document
○ should use simple language, since you are just trying to get across ideas.
● Legally adequate proceedings
○ raise issues in sufficient detail to permit the range of examinations for discovery which are required
○ raise issues in sufficient detail to permit the leading of necessary evidence at trial
○ disclose a cause of action and a factual basis on which judgment could be granted.
● preparing for a notice of claim
○ limitations
■ figure out how much time you have
■ if it is about to expire, immediately file a broad, general document which covers all bases
■ just because the limition is up, doesn’t mean you are out of luck
● maybe you can frame it as an action in trust with a longer limitation period
● maybe D has confirmed the cause of action by acknowledging a debt or something
○ evidence review
■ look over all relevant documents
■ if there are experts it may be useful to have a preliminary opinion
○ client and other witnesses’ evidence
■ have a chronological account and minuts of evidence to prepare pleading consistent with the evidence available
■ figure out what remedy they are seeking
○ legal research
■ in order to be aware of the grounds you have to meet in order to entitle the client to the relief sought
■ figure out which causes of action you are alledging, and what defences may be possible.
○ review in-house precedents or precedent books
○ review drafts with the client before filling, since no one is more familiar with the facts than the client
● Points of pleading
○ be crisp, concise and professional- not prolix or argumentative
○ plead material facts, not evidence
○ try and tell the client’s story
○ plead the necessary law
■ while in theory you can argue any point of law arising from the allegations of fact barring certain specific matters (estopel, res judiciata, etc.)
■ the general practice is to plead the legal consequences of the material facts
○ plead the stuates or regulations relied on
○ make sure there is a factual basis for pleaded allegations, and avoid pleading matters which there is no reasonable possibility of establishing.
● Statement of defenec
○ plead any matters which would otherwise take the plaintiff by surprise, including conclusions of law
○ admit the obvious and non-controversial
○ choose whether to respond paragraph by paragraphy to the statement of claim, or whether to use the defence to put forward your clients case
● particulars may be necessary for certain allegations involving fraud, as well as other areas
● court has further discretion to order particulars
● amendment is common, but it is better to get it right first, since discovery scope may be limited and some amendments may not be allowed 9paritcularly fraud)
● be careful of
○ deemed admissions
○ inconsistent allegations
○ defamation
○ efefct of documents.
Murrell v. Simon Fraser University, BCCA 1997
Issue
● what is required in pleadings, and what happens if this is not met?
facts
● Murrel was an administator at SFU, and was dismissed
● the big problem is that the pleadings are so crappy that Murrell claims that she has no idea what case she has to make
● it’s also impossible to tell from the TJ’s reasons what exactly the findings were, which is a result of the crappy pleadings.
● the statement of claim was 42 paragraphs long, whereas the goal for a wrongful dismissal case ought to be six.
○ it contained many immaterial details
● then the defence responded in a similarly prolix fashion
○ and failed to say what the terms of the contract of employment were that Murrell breached justifying her termination.
○ there was no plea of an implied term of good faith or loyalty
○ no plea of a duty or a term requiring Murrell to obey the directions of the D, etc.
● further, there were elements of condonation
○ where a master with knowledge of a servant’s misconduct continues to employ him
○ this is considered like election, meaning the master forfeits his right to dismiss
○ but here there was no proper reply
● So D says M was dismissed for just cause, when asked for particular gives a huge long list of things
○ P says this is unfair, since the D’s statement of defence did not set out that the case was going to be about P’s dishonesty
○ the particulars are prolix, obfuscatory and mealy mouthd.
Analysis
● P says that the statement of defence, combined with the particulars, does not disclose the case that must be met (which it turns out is an allegation of flagrant dishonesty)
● D says over the course of the trial, the difficulties cause by the poor drafting were overcome
● this is not a case where the merits should be decided despite defective pleadings
○ P has a lot at stake, and the court hsouldn’t have to construct D’s case against her.
○ especially since the defence of just cause puts the onus on D
● Buried deep within the P’s shitty pleadings you can find the action of wrongful dismissal, but the statement of defence does not even include the term of employment which was said to be breached.
● so D is going to have to produce an ammended statement of claim
Ratio
● The courts HATE crappy pleadings
● if the pleadings don’t disclose a cause of action/defence, you may have to ammend and hand them back in
CFAR v. Canadian Jewish Congress, p. 120
Issue:
● when may a pleading be struck?
Facts:
● CFAR says that they were defamed by the CJC who had listed them in a brochure as a hate group
● CJC wants this action struck
● CJC says that CFAR is an Ontario corporatio that has no funds and will be unable to pay costs if this action is dismissed, so wants them to put up security.
Analysis
● Security for costs issue
■ dealt with below in section on costs
● to succeed on an application to strike, must prove that it is “plain and obvious” that hte pleading discloses no reasonable cause of action
○ if there is any doubt, the pleadings should stand.
○ the court should resume all plead facts are true
○ the only question is whether the facts as pleaded disclose a cause of action.
○ so long as the pleadings disclose a triable issue, either as written or as could be ammended, the issue should go to trial .
● the pleadings were very unclear, but P says they disclose claims of malice and conspiracy.
○ malice may be establsihed if the D used the occasion at issue for some wrong or improper purpose.
■ P says the wrong or improper purpose was an ongoing campaign of vilifcation against CFAR and groups like it
■ if the P was able to prove its fact, the court accepts that this could prove malice.
■ so this party won’t be struck
○ conspiracy not made out, since the P is alledging that D has a conspiratorial world-view, not that D is actually participating in a conspiracy.
○ to establsih conspiracy, must show
■ an agreement
■ an over act baesd on the agreement
■ resulting damages to the plaintiff
○ if the acts are themselves unflawful, then it is enough to show they are directed at the P and the D should have known they would injure the P.
○ but there is nothing in the pleadign showing an allaegation of agreement to hard the P, or that the D knew of such a claim
○ besides, some of the defendants are officiers of CJC, and officers can’t conspire with their won company
○ so this para will be struck since no cause of action.
● in order to strike because the pleading is unnecessary, frivolous, scandalous or emabarrassing, it must be shown that the pleading is plain and obvoius in doing so
○ embarassing and scandalous pleadings are so irrelevant that it will involve the parties in useless expense and will prejudice the trial of the action by involving them in a dispute apart from the issues
■ scandalous allegations will not be struck, unless they are also irrelevant.
○ a pleading is vexatious or unnecessary if it does not go to the P’s cause of action or does not dislose a cause of action
■ a pleading that is merely superflous will not be struck out if it is not necessarily unncecessary or otehrwise objectionable
○ a pleading that is frivolous is obvious unstainable due to the doctrine of estoppel.
● while the allegations of a “campaign of vilification and incitement of hatred” are scandalous, they are not unnecessary since they go to the P’s claim of malice.
○ it is not plain and oobvious that they are unnecessary or pled only to distract parties from the true issues at stake.
● abuse of process
○ abuse of process may be found where proceedings involve a deception of the court or constitute a mere shame; where process of the court is not being fairly or honestly used, or is employed for some improper purpose, or where proceedings are without foundation or serve no useful purpose
Ratio
● pleadings will be struck only where it is plain and obvious that they disclose no cause of action
● or where it is plain and obvious that they are unnecessary, frivolvous, scandalous or embarassing
○ must not just be embarassing or scandalous; must also be irrelevant/unnecessary to the cause of action
○ just because an allegation is distasteful doesn’t mean it will be struck
● abuse of process may occure whre the proceedings involve a deception of the court or where the process of the court is being used dishonestly (ulterior purpose) or where the proceedings are without foundation and serve no useful purpose.
GWL v. W.R. Grace, 1993 BCSC
Issue
● how do we draw the line between particulars and evidence?
Facts:
● P wants particulars of Ds defence
● P says that since discovery is over, they require a more complete statement of the facts material to the D’s case
● D says all that P wants is new evidence
● P owns three office towers, and alledges D was negligent in manufacturing or supplying the insulation products installed in the building.
○ the insulation contained asbestos
ANalsyis
● Pleadings are to be bring and contain a summary of materail facts, but no evidence
● where particulars are necessary, the should be included in the pleadings
● particulars need only be pleaded to the extent they are known at the date of pleading
○ further paritculars may be delivered after they becmoe known
● court may order further and better particulars.
○ this is a discretionary order
● particulars serve 6 purposes:
○ inform the other side of the case to be met
○ prevent the other side from being taken by surpise
○ to enable the other side to know what evidence they should prepare for the trial
○ to limit the generality of the pleadings
○ to liit and decide the issues to be tried, and to which discovery is required
○ to tie the hands of parties so they cannot go into any matters not incldued
● the scope of particulars that can be demanded lies in answer to the question of whether what is sought is intended to deilneate the issues or simply disclose the way the case will be proven
● discovery is not a substitute of particular
○ even though you can find things out in discovery is no reason to refuse particulars.
○ a person is entiteld to know what case is made against it, and the other side is in a position to give particulars of the facts it will prove at trial.
● particulars are important since trials are increasingly long and we should do whatever we can to bring the real issues between the parties forward without surprise
● this is going to be a long trial ata ny rate.
● So what particulars do we need here
● D has pleaded that P ought to have know that the goods included asbestos and could be dangerous, because D says
○ P was advised by salesmen and D’s employees
■ so P wants to know which salesmen, which employees, and when.
○ There was advertising and promotional material which dislcosed this circulated at the time
■ so P wants to know what this material was, where it was published, and what it iwas about
○ there was widespread publicity about the effects of abestos on people
■ P wants to know the nature of the publicity, how it was publcized, what that publcitiy said, and so on.
○ there was a controversy in vancouver around that time
■ P wants to know when the contrvoesy was, and how it was publicized
○ it was public knowledge that there were concerns about asbestos
■ P wants to know the nature of the knowedge and the circumstances of that knowlege.
○ the WCB inspected and tested the building sites and found that the asbestos was within standards
■ so P wants particulars of the inspections and so on.
● D says it has plead the means of knowledge and is not required to provide particulars about how it is going to prove this stuff
○ this would be pleading evidence
● No, what the owners seek are facts that are material to D”s defence.
○ they don’t care how this is roven
○ they just want to know what exactly D is planning to prove.
○ it may be obvious from the particulars themselves how they will be proven, but not necessarily
○ example: evidence about employees may be produced by document, by testimony, etc.
● P needs to be able to tie D’s hands
○ they need a statem of specifically what D will prove was the means whereby knowledge of the dangers of asbestos was or ought to have been acquired.
○ we want to focus the issues and limit surpise
○ D must particularzie the material facts.
Ratio
● Particulars may be orderd
○ these are additional facts that establish what case the D is planning to make
○ they are not evidence, since this isn’t about how D is proving its case
○ you may get particulars for quite precise and specific facts.
● particulars serve 6 purposes:
○ inform the other side of the case to be met
○ prevent the other side from being taken by surpise
○ to enable the other side to know what evidence they should prepare for the trial
○ to limit the generality of the pleadings
○ to liit and decide the issues to be tried, and to which discovery is required
○ to tie the hands of parties so they cannot go into any matters not incldued
Joly v. Pelletier, Ont. Ct. Jus. 1999
Issue:
● when can the court strike for frivolous or vexatious?
● When can the court strike for no cause of action?
Facts
● J has broght a number of claims that P would like struck on the basis that they disclose no cause of action or are frivolous/vexatious or are an abuse of process.
● J’s claims centre on his assertion that he is a Martian
● He claims against Drs, medical facillitates, US government, etc, caliming they have all tried to have him killed and otherwise acted against him.
Analysis
● there was a hearing to see if J was disabled and ought to be appointed a litigation guardian
○ but he’s basically clear and sane
● The claim here is basically that J has no cause of action, the actions are firvolous, and this is an abuse of court
● in order to strike, the court first accepts all the facts as alledged unless they are patently ridicuolous and incapable of proof
○ then assuming these facts can be proved, the court must be satisfied that it is “plain and obvious” that the P’s statement of claim discloses no cause of action”.
● the court may dismiss as being frivolous, vexatious or abusive only in the clearest cases where it is plain and obvious the claim cannot succeed.
○ a pleading is frivolous if it does not present a rational argument, either on the evidence or in law, in support of the claim, and it casts unreasonable aspersions.
● the claims ought to be struck for two reasons
○ assuming P is a Martian, he is neither human nor a corporation so cannot be a plaintif, since a plaintiff must be a preson.
■ since P says he is a martian, he’s not a person, and cannot initate an action
○ the claims are vexatious and frivolous and are an abuse of process
■ the claim of conspiracy was imporerly pleaded
■ no claim for damages
■ many of the defendants are not legal entities capable of being sued
■ plus the actions are patently ridiculous.
Ratio:
● in order to strike, the court first accepts all the facts as alledged unless they are patently ridicuolous and incapable of proof
○ then assuming these facts can be proved, the court must be satisfied that it is “plain and obvious” that the P’s statement of claim discloses no cause of action”.
● the court may dismiss as being frivolous, vexatious or abusive only in the clearest cases where it is plain and obvious the claim cannot succeed.
○ a pleading is frivolous if it does not present a rational argument, either on the evidence or in law, in support of the claim, and it casts unreasonable aspersions.
● if you’re not a person, you can’t sue
Spillane v. United Parcel Service Canada Ltd., BCSC 2006
Issue
Facts
● P is suing D over a parcel, although state writ of summons and statement of claim were deficient
● P says UPS failed to deliver documents to the Michigan court as D assured him it would.
○ P was found guilty of secual assault
○ didn’t appear for sentencing since living in Canada
○ 12 years later, P wants to appeal
■ appeal denied out of timeliness
○ P appeals further up
■ mailed his package with UPS and it arrive a couple days late.
■ this was after the time limit for filling, so he was out of luck.
● P’s claim is that he was promised “on time deliverY” and the UPS did not provide this
○ P Is claiming for personal losses, including the value of a patent he intended to file in teh US which he estimated to be 2 billion dollars
○ as well as the shame of a prison sentence, etc.
Analysis
● the D want this action dismissed
○ no reasonable claim
○ unncessary, scandanlous, frivolous, vexatious.
● test is whether assuming the facts set out in the pleading can be proved, is it plain and obvious that the P’s statement of claim discloses no reasonable cause of action
○ doubt resolved in P’s favor
○ as long as there is a triable issue, no strike.
● in considering plain and obvious test look at
○ whether there is a question fit to be tried, regardless of complexity or novelty
○ whether the outcome of the claim at trial would be beyond reasonable doubt
○ whether serious questions of law or general importance are raised, or if the facts should be known before rights are decided
○ whether the pleadings might be amended instead
○ and whether there is an element of absue of porcess.
● unnecessary, scandalous, frivolous, vexatious
○ see CFAR
● D may apply after an appearance for a judgment on an afffadavit setting out the D’s contetion that there is no merit in the whole or party of claim, and that D knows of no facts which would change this
○ test is whether the P’s claim is bound to fail.
● while P’s pleadings are almost completely devoid of material facts which could support a cause of action, if ammended there could be a cause of action in breach of contract or negligence.
● Breach of contract: D promised to deliver on time
○ pleadings do not set out a lot of the information necessary to determine this, but could do so on amendment
○ same goes for negligence
● so it is not plain and obvious that the P’s claim is bound to fail
○ ther may be a triable issue
● P also sued some of the postal workers personally
○ there is no reaosnable claim against either
● Most of P’s pleadings are unnecessary, scandalous or vexatious since they don’t go to establishing the P’s cuase of action
○ he included alist of other complaints against UPS
○ included irrelevant info about his convinction
○ patent infringement stuff
○ none of which goes to a cause of action
○ but parts of the pleadings are not unnecessary, scandalous, frivolous or vexatious
■ so cannot strike the whole thing.
● So parts of the pleading will be struck
○ all of the facts irrelevant to the proveeeding will be struck
○ as will the parts that are actually evidence
● P is going to need to amend his claim substantially in order to proceed.
○ so P has a little while to ammend or give up his action.
Ratio
● test is whether assuming the facts set out in the pleading can be proved, is it plain and obvious that the P’s statement of claim discloses no reasonable cause of action
○ doubt resolved in P’s favor
○ as long as there is a triable issue, no strike.
● in considering plain and obvious test look at
○ whether there is a question fit to be tried, regardless of complexity or novelty
○ whether the outcome of the claim at trial would be beyond reasonable doubt
○ whether serious questions of law or general importance are raised, or if the facts should be known before rights are decided
○ whether the pleadings might be amended instead
○ and whether there is an element of absue of porcess.
● in order to strike the whole action, must show the whole thing is wrong; otherwise parts may be struck and the pleadings amended
○ possibly on a time line.
Farmer-Paellmann v. FleetBoston et al.,
● This is the model notice of claim about reparations
● begins by describing the role of slavery in America, using descriptive language and broad statistics.
● talks about the impact of slavery on the economy
○ and the hardships faced by Africans before and after slavery
● P is slave descendants who were forced into slavery from which the defendants, the successor companies of slave owners, benefited
● explains why the court has jurisdiction
● explains the relationship between the defendants and slavery
● explains the nature of the class action, and why a class action is appropriate in this case.
● etc,
● I think this is included just to show how a creative pleading may be necessary in certain cases.
Tab K
Tab L
20-3 Representative Proceedings
● If numberous people have the same interest in a proceeding, the proceeding may be start by one or more of them as reprsetnatives of the rest
○ the cout may also appoint a D or P as a person having the same interest and appoint them as representative
● represetantives are binding against all people of the class in the proceeding, but unlike a true class action, not binding against those outside the proceeding
● court may order someone to represent an unborn or unknown person or a member of a class of persons who have an intrest in the proceeding.
● if someone is interested but not a party to the proceeding, the court may order that this person can enforce the action if the court determines that the this will be to that persons benefit, and if there is someone with the same interest involved in the proceeding who assents to the compromise.
20-4 Declaratory Relief
● a proceeding is not objectionable just because the only relief sought is a declaratory order, and the court may make binidng declarations of right, whether or not this will have any consequential relief.
22-5 (old 5) Multiple claims and parties
● A person may join several claims in the same party
● a proceeding may be started by or against multiple party if:
○ there is a common question of fact and law
○ there is releif claimed in the proceeding which arises out of the same transation or series of transactions
○ and/or the court grants leave to do so.
● a P claiming relief to which another P is jointly entitled must join all Ps as parties to the proceeding
● if relief is claimed against a person who may be jointly liable with others, that person does not necessarily need to be added to the proeceding, but the court has the discretio nto stay until the parties are added.
● not everyone needs to be interested in the relief sought, but the court may order compensation to parties who are not interested.
● if joinder of claims or parties may unduly complicate or delay the proceedings, the court may order sepearte trials.
○ same goes for counterclaim and third party claims
20-2 (old 6) Persons Under Disability
● a proceeding brought by or against the disabled must be started or defended by a litigaiton guardian
○ litigation guardian takes the role of the disabled for the purpose of the rest of the rules
○ the litigation guardian must act through a lawyer
○ any person who is ordinarily a resident of BC may be a litigation guardian without court appointment
○ litigation guardian must consent to any proceedings
● the lawyer for the disblaed must certify that he knows or believes the person is infont, or mentally incompetent, and that the propsoed litigation guardian has no conflict of interest with the disabled.
● if a party becomes disabled, the court must appoint a litigation guardian unless one has already been provided
● a litigation guardian may be removed if in the interst of the diabled
● a person who attains majority mid proceeding may notify the parties that he is under no disablitiy, t which point he assumes conduct of the litigation
● no one can take a step for default against the disabled without the leave from the court.
● if you file a notice on the disblae,d and nothing comes back, before you can take further proceedings a litigation guardian must be appointed.
● no settlements may be made with the disabled without court approval
20-1 (old 7) Partnerships
● partners may be sued or sue in the firm name
○ but can also be sued under their own names.
● service is effective by leaving the document with a partner or a person at the place of business who appears to manage the business.
● if a firm sues you, you must respond in the name of the firm
● if you are sued, you may respond under your own name or the name of the firm.
● you may request an affadavit listing all the names and addresses of the partners at the time the cause of action arose.
3-7 (old 19) Content of Pleadings
● must not contain evidence, ony fact
● the effect of the documents or conversations should be plead rather than quotign the documents themselves, unless the words tehmselves are material facts or unless it would be the fastest way of doing so
● you may not plead inconsistent allegations, but you may plead alternative alelgations
● conclusions of law may be pleaded if there are material facts underpining them
● D may counterclaim or set-off in the pleading
● in pleadings subsequent to the notice of civil claim, parties must plead specifically any fact or law that undermines the adverse parties position or would take the other party by surprise.
● if a fact is denied, it must be denied substantially rather than evasively
● you can plead malice, fradulent intentino, knowledge, and other mental statsues without setting out the facts and circumstnaces from which they should be inferred.
● where necessary, and particularly where a cliam involves misrepresentation, fraud, etc, full particulars with dates and items (if applicable) must be stated.
● if the particulars will be lengthy, they may be submitted in a separate docment
● further particulars may be pleaded as they become known.
● if you sue for slander, you must give particulars showing the words were used in a derogatory way rather than their ordinary meaning
● if you say they are expressions of fact, must give their particulars
● court may order further partiuclars
● prior to applying for further particulars, you should ask for them in writing.
3-1 (old 20) Notice of Civil Claim, see above
3-4 (old 21) Counterclaim
● D may file a counterclaim against the P within the time set out for the filing of a response
○ if this involves a person jointly libale with P, this person may be joined
● Service must be in the same form as a response w/r/t P, and personal service if it involves a third party
● then parties must respond to this
● a seperate trial may be held for the counterclaim if it will be in the objective of the Rules and particularly where it involves a different subject matter
● damages may be dealt with in terms of balances.
3-6 (old 23) Reply
● upon receiving a response from the D, the P has 7 days to file a reply
○ no pleading subsequent to this reply may be filed or served without leave
6-1 (old 24) Amendment of pleadings
● pleadings may be amended once without leave if it is before the date of service of the notice of the tiral or before the case planning conference
● after that, amendments require leave or consent from the partie sof record.
● with amendments, any deleted wording must be shown as struck out, and any new wording must be underlined.
● then it must be served by ordinary service within 7 days of filing on all parties of record
○ if new parties involved, personal service
● parties of record may amend their pleadings in response, but only with respect to the matters raised by the amendments within 14 days of the amendment.
● if the amendments bring in a new person, that person gets the same change to file a response as you normally would
|Document Discovery: |
1. Topics:
Discovery
● aim is to be flexible and proportionate
● disvoery may take place through interviews, document exchange, third parties
● it is a process of ascertaining evidence so that the parties have the ablity to be on an evidentiary level playing feel and so as not to be surprised at trial
○ this is a process of equalization allowing both parties to dsiver the facts
○ documetnary discovery is ordinarily the most impotant, becuase documetns are permanent, prevalent, and are recordings
○ witnesses are great, but a clear document may be devastating
Purpose of discovery
● to level playing field
● to air allegations
● to encourage settlement
● to avoid surprise
● to uncover evidence and learn the facts
● to pin witnesses down, and to size up opposing witnesses and counsel
Values underlying discovery
● we balance the search for truth against expense and time
● equality
○ want each party to have the same information
■ don’t want to impose idfferential obligations without good reaosn
■ may be that P has 40 documents to give up, while D has 40K
■ don’t want P to strangle D with requests for documents
● proportionality
○ between discovery process itself
○ the value of the information obgatin in the process versus the cost, difficult, damage to privacy, etc.
○ no fishing trips.
○ senstivie information may effecitvely blackmail someone into settlement
Standard for Discovery
● Possible standards
○ no discovery
○ all relvant documents
○ best 5/worst 5 documents
○ reliance standard
■ in arbitration, the standard is reliance
■ you only have to produce those documents you intend to use
■ the abirtrator may order further disclosure, but that isn’t the starting point.
○ all admissible documents
■ any document that COULD be adduced as direct evidence at trial
○ only contract/only contracts and admissions
● old standard was Peruvian Guano - 1880 English Decision
○ you must produce every document that may advance your case or damage the case of your adversary, or could lead to a chain of inquiry leading to those results
■ not relevance, but possible relevance
○ created in a time where there were just far fewer documents
● standard now set out in rule 7
○ initial document production obligation is to produce documents you are going to rely on, and documents that would go to prove or disprove a material fact in issue
○ material facts are the only things that can be set out in pleadings
○ you may get a braoder category of documents on request
■ 7-4: you must set out what the other documents are and why you want them..
○ list of documents includes those documents that are alledged to be privilege
■ you must explain the general nature of the documents and why they are said to be privileged
Ethical Obligations for discovery
● advise your client on what relevance is, and how they should apply it
● don’t equivocate- disclose all things relevant
● If they client refuses to produce relevant docments they have disclosed to you, you are exposign yourself to liability for breach of trust to the court.
● makes sure to protect your client’s privilege- it’s his, not yours
○ err on the side of claiming privilege
● if you receive a privileged document in error, stop reading, notify the other side, tell them how much you read it- this is radioactive material
● do not destroy anything- hold all letters as soon as you start litigation and advise the other side to do the same.
Implied Undertakings
● documents produced for the purposes of litigation may only be used for the pruposes of that litigation, and not any other purpose or in other litigation
● the exceptions are
○ consent
○ imminent harm
○ court order
● it is not totally clear, but use of material as evidence in the court may be sufficient to allow further disclosure
● it is very dodgy, but you could send out an affadavit filed in court as evidence to reports
● penalty for violating the undertaking is contempt.
Settlement Privilege
● policy based privilege that governs communications for the purposes of making a settlement
○ policy choice to encourage settlement by extending privilege to those communications
● rule of evidence- keeps documents out of the court process, not the hands of the other party
● must show
○ litigation is contemplated
○ document produced for the purposes of settlement
● settlement privilege cannot be used as a cloak for threats
Waiver
● based on the consent of the client
● may be done explicitly and intentionally
○ for exmaple you may be able to show you acted on expert advice by revealign the priviliged communications
● may be waived by other methods
○ by pleading reliance on legal advice- must show the content of that advice
○ if you are a trustee and peladed you acted honestly and in good faith, you’ve waived privilege over the related advice
○ if you open the door by bringin in parto fthe privilege
○ if the advice was to aid in the commission of a crime or fraud, there is no privilege
○ privilege is waived by disclosure to the other party.
Discovery of documents from third parties
Postponing discovery of documents
Privilege
2. Readings:
(a) Walker, pp. 550-552, 603-608, 621-643
Electronic Discovery: Overview
● E-discovery can be problematic, wroking rules were developed
○ greater rate at which electronic documents can be produced and copied
○ much harder to dispose of finally
○ the use of metadate to reveal other information about the creation and modification fo the documets
○ the greater ability to search the documents, and the greater range of documents that might be relevant.
● 12 basic principles
○ electronically stored information is discoverable
○ discovery process should remain proportionate
○ counsel and parties should meet often and ASAP regarding the identification, preservation, collection, review and production of electronically stored information
○ parties must remain aware to take reasonable and good faith steps to preserve potentially relevant electronic information
○ parties should be ready to disclose all relevant electronically store information that is reasonably accessible in terms of cost and burden.
○ parites are not required to search or collected deleted or residual information, barring a court order.
○ party may satisfy obligation to identify electronically store information using electronic tools and processes.
○ parties should agree ASAP as to format, content, and organization of information.
○ parties should agree on, or seek judiical guidance on, privileges, privacy, trade secrets, and other confidential information
○ parties should respect the current forum and remain cogniscent of impacts on other forums
○ where a party fails to meet obligations to preserve, collect, review or produce electronic documents, and the other party is prejudiced, sanctions should be considered.
○ the cost of producing, storing, etc. is to be borne by the party producing it, although this may be modified on an interim basis as the situation warrants.
Types and Sources of Privilege
● privliege is the major limitation on the otherwise broad scope of discovery
● the effect of privilige is to prevent a party anda court from having relevant information
○ the protection of the relationship is regarded as a sufficient social importance to justify some sacrifice of avaliability of evidence relevant to the determination of truth
● general rule is that at a trial or other hearing, everyone is subject to being compelled to testify, and all relevant questions may be asked and must be answered
○ certain people do not need to testify- the accused person.
○ Some kidns of information do not need to be produced- solicitor/client privilege.
● Generally, confidential communications are not privileged
○ ie. doctors,journalists, etc.
○ In civil litigation, there are a few areas of class privilege
■ solicitor-and-client, litigation privilige, settlement negotiation privilege, and Crown privilege.
○ other areas of privilege are case-by-case
○ not coincidentally, lawyers are getting special treatment, as is the government
■ fairly self-serving
Philosophy of Solicitor-and-Client Privilege
● litigation requires lawyers- it is just too complex for the layperson
● and clients need to be totally open with their lawyers in concocting trial stratgey
○ these communications shoudld be kept secret to allow the litigation to be properly conducted.
● its necessary to perserve the fundamental relationship of trust between lawyers and clients.
● Requriements of Solicitor-and-Client Privilege
○ Communication between solicitor and colient
○ which entails the seeking of legal advice
○ which is intended to be confidential
● protects any effort made to acquire legal advice- not limited to the current action.
○ must be made in confidence
○ must relate to law- not to business or other considerations
○ must not be made to facilitate a crime or fraud.
History of Solicitor-and-Client Privilege
● may have originally arisen as a respect for the “oath and honour” of the lawyer who was dutybound to guard glosely the secrets of the client
○ SCC is moving away from this
○ SCC now treats this as a substantive rule, not one of evidence
● Susbtatnive Rule of S-C Privliege
○ confidentiality arises where the communications may be disclosed without the cients consent.
○ any conflict between confidentiality and other right should be resolved in favoring the conidentiality
○ if the law gives a right to do something which would breach confidentiality, this interference should be done only to the minimal extent which is absolutely necessary to acheive the ends sought.
○ Acts which would tend to limit or interfere with confidentiality to should interpreted restrictively.
● this priviliege remains as close as possible to absolute, but not quite aboslute
○ it will be breached only in very limited situations, and is not assessed based on balancing in a case-by-case way.
● key exception: “innocence-at-stake”
○ where the disclosure is sought to prevent an innocent person from being unjustly convicted.
● key exception: “public-safety exception”
○ may be able to disclose confidential information where there is a threat that is clear, seroius, and imminent.
Limits on Solicitor-and-Client Privilege: Waiver
● Privilege belongs to client, not laywer
● clients who choose to disclose information have “waived” the privilege
● used to be that the client had to clearly intended to waive privilege with a complete awareness of the results, but other factors of the adverserial process has overtaken this principle.
● waiver clearly cocurs where cleint voluntarily discloses or consents to disclose a material communication.
○ if privilege is waived, then the prodocution of all documents relating to the acts contianed in the privileged documents can be ordered
● a client can voluntarily waive privilege on a limited basis and to a defined subject matter unless this would be misleading or create an unfair advantage.
● if the client answers a question in a way that would waive privilege, unless you can show the client was misled or didn’t understand the question, privilege DOES count as waived.
● if a party makes available to the police privileged documents in order to help solve a crime, this is not waiver
● clear intent to waive is no longer necessary- waiver may be implied, or even accidental.
R v. Campbell [1999] 1 SCR 565
Issue
● whether pre-trial disclosure of solicitor-and-client communications to which privilege had been claimed constituted a waiver
Facts
● Reverse sting operation
Analysis
● the RCMP put into issue the Cpl’s good faith belief in the legality fo the reverse sting, which waived privilege.
● The CPL counted as the Ministry’s client for the purposes of privilege, but only as an agent for the RCMP.
○ So the communications were privileged, but could be shared with the rest of the RCMP without constituting waiver
● when the Cpl. testified that he had sought legal advice prior to the sting, this was not the waiver
○ this was in response to a question from the applellant.
● however, the RCMP factum said “regard must be had to the following considerations... (f) the RCMP … consulted with the Department of Justice with regard to any problems of illegalit”.
● The RCMP was trying to support its argument of good faith by relying on undisclosed advice from legal counsel
○ but this depends on the idea that counsel told the RCMP the actions were lega
○ it implies that the Counsel’s advice was that the reverse sting was legal.
Ratio
● be careful! It is possilbe to waive privilege.
● iF you attempt to rely on the content of a privileged communication, the content of that communication has its privilege waived.
Notes on Campbell
● Motivated by fairness- client cannot have its cake and eat it true.
● presumably this means that solicitor-client privilege is waived when the client legitimately brings the issue into relevance.
● in Foster Wheeler the court found the presence of a facilitator did not constitute a third party such that privilege was waived.
● generally inadvertent disclosure still leads to waiver; but the court may becoming more sensitive, as in Metcalfe
Metcalfe v. Metcalfe 2001 MBCA 35
Issue
● When can privileged documents which were inadvertently disclosed by used as evidence by a third party?
Facts
● M1 asked for disclosure of all docments that were on file with M2’s prior lawyer
○ these were produced with privileged communciations blacked out
○ turns out, some of this was relevant, so M2 sent new copies but accidentally included information that WAS properly privileged.
Analysis
● where there is inadvertent disclosure of a privileged document without the intent to waive privilege, the case law typically upholds privilege over the document itself
○ but this is more compliacted where tehre are copies being used.
● traditional common law view is that inadvertent disclosure of privileged materials will not waive privilege over the materials themselves, but privilege cannot protect against use being made of the copies.
● there is an equitable case where the applicant successful applied pretrial for an injunction preventing the use of privileged copies which had been inadvertently been disclosed
○ so the UK has a dichotomy- copies of privileged docs may be used at trial, unless they are challenged by application for injunction prior to trial.
○ other UK case suggests that where the disclosure was obviously a mistake, the material cannot be used
● in Canada, an opposing party is restrained from using inadvertently released privileged materials whether or not the mistkae was obvoius.
○ the privilege belongs to the client, and the inadvertent disclosure is not truly waiver
○ so the use of the documents is restrained on the basis of the interests of justice.
● so in a civil trial, the modern law is that privilege may be waived only by the client, and then only when it is waived deliberaetly and knowingly, not inadvertently.
○ unless some prejudice would result by allowing the solicotr and client privilege to be maintained, the trial judge should exercise his or her discretion in favour of upholding the privilege.
● this means that where a party wants to introduce a confidential communication which has been inadvertently disclosed (or otherwise disclosed without the consent of the client), they will have to satisfy the judge that:
○ the evidence is important to the case
○ no other form of evidence is available which would serve the same purpose
Ratio
● inadvertent disclosure of privileged information is not considered a waiver because the client who owns the privilege has not intentionally decided to forego the privilege.
● if a third party wishes to use such communications as evidence, they must satisfy the court that
○ the privileged evidence is important to the outcome of the case,
○ and that there is no reasonable alternative form of evidence that can serve the same purpose
Litigation Privilege/Lawyer’s Brief Rule
● Litigation Privilege is distinct and with a seperate scope, purpose, and rationale as compared to solicitor-client privilege.
General Accident Assurance Co. v. Chrusz (1999) 45 OR (3d) 321 (CA)
Clark JA
Facts
● Chrusz owned a hotel which was destroyed by fire, and Assurance is the insurer
● GAA suspected arson
● Former employee disclosed some evidence, which the former employee was allowed to keep if he promised they would remain confidential
● GAA sues for fraud, C counterclaims
● C wants disclosure of the documents produced by the former employee.
Analysis
● Litigation privilege founded on adverserial system of litigation
○ counsel decide what will be put before the court and what evidence will be used to esablish claims and defences
● in a practical sense it is a means of assuring counsel has a “zone of privacy”
○ basically, the modern approach to discovery is complete
○ the litgation privilege is the area of privacy left to a solicitor after the current demands of dsiverability has been met.
○ basically, unless the domininant purpose of the document in question has to do with the litigation itself, it ought to be disclosed.
○ if the substantial purpose of the document’s creation relates to litigation current future, it may fall into litigation privilege.
● so the dominant purpose test requires that the document in question be created for the purposes of litigation, actual or completed.
● but what abot documents which appear in the course of investigative work.
○ if a solicitor makes copies of public documents, this may attain privilege as well.
○ but other authorities suggest that documents which are not privileged cannot become privileged merely by the process of privilege.
● while there is a temptation to want to award diligent counsel who dig up great new pieces of evidence, the basic rules favor early discovery.
● so copies of documents which are not themselves privileged do not become privileged merely by the copying
○ rqeuireing these documents be produced during discovery does not impinge on the lawyer’s freedom to prepare in privacy, and it helps get at the merits of the case.
○ so the zone of privacy does not include private copies made of public documents.
● there is also a common interest privilege
○ this is where the litigation privilege is preserved even thought the information is shared witha third party.
○ litigation privilege, unlike solicitor-client privilege, operates only against the opposing party and ends at the completeion of the the litigation.
○ a document in the hands of a third-party wil only be protected by privilege if there is a common interest or its litigation.
○ basically common interest privilege applies where there is anticipate litigation in which several persons have an interest.
■ all exchange opinions from counsel, make copies, etc.
■ but only one is a P to the current proceeding
■ for the purposes of discovery, all these interested parties should be treated as partners in a firm, and can avail themselves of litigation privilege.
● US apporach to common interest privilege
○ work-product privilege is aimed at promoting the adverserial system by safeguarding the fruits of an attorney’s trial preparations from the dsivoery attempts of the opponent.
○ showing a third-party litigation-related products does not waive the work product privilege.
○ so long as the transferor and transferee anticipate litigation against a common adversary on the same issue or issues, they have a strong common interest in sharing the fruit of trial preparation efforts.
● These approaches are adopted into canada
○ where a third-party is shown litigation-privileged documents, that privilege will not be waived in the third-party is involved or will be involved in litigation against the same opposing party on the same or similar issues.
● Application of Principles to the Dispute Categories
○ the question here is whether communications between the claims adjuster and the insurance company, and the claims adjustor and the insurance lawyer, ought to be privileged.
■ an insurance company investigating a fire is not in a state of anticipating litigation.
■ litigation is only anticipated once evidence of arson was detected.
■ once detected, communications between investigator and lawyer and insurer and lawyer did get litigation privilege.
■ the claims adjustor was investigating and reporting, but he was not the lawyer’s client, so solicitor client privilege does not attach.
○ disgruntled employee who brought documents does not get common interest privilege, because he was just a witness
■ no threat of litigation
■ so copies made of his evidence should be disclosed
■ his initial diclosures do get ltigation privielge, because he was closely enough aligned with GAA
Ratio
● Litigation privilege does not attach to copies made of public records or of third party evidence
● Litigation privilege applies only against the adversary, and ends once the issue is settled.
● Test for litigation privilege is dominant purpose test
○ document must have been created for a dominant purpose relating to litigation against the specific adversary.
● common interest privilege applies where there is a sharing of documents among parties in the court of litigation or anticipated litigation, against the same adversary and on similar or the same issue(s)
Dohert JA (Dissenting in Part)
● Disagrees about the issue of copied documents
● Non-privileged documents should not become privileged merely because they are copied and placed in the lawyer’s brief
○ but if it involves a selective copying or results from research or the exercise of skill and knowledge on the part of a solicitor, then it may apply
● Further, not every document that appears to meet the precondition for litigation privilege ought to be protected
○ priviege ought to be recongized as qualified and can be overrideen where the harm to other societal interests clearly outweighs any benefit to the interest fostered by applying the privilege in the particular circumstances.
○ as in the US, there ought to be an exception where tehre is a substantial need for the material, and where the party seeking production cannot obtain equivalent material without substantial hardship.
● Besides, the stateemnt in question is not the product of lawyer’s work- statement is purely informational and is Mr. Pilotte’s account of the relevant events
○ does not reflect counsel’s view of the cae.
○ the danger here is not that GAA’s privacy will be invaded, it’s that GAA is concerned that if C finds out why GAA came to suspect fraud, he will tailor his evidence.
● disclosing the statement will yeild a lot of benefits and help accurace, while not prejudicing counsel for GAA in preparing and pressenting his case.
Rosenberg JA (concurring)
● doesn’t agree with Doherty’s balancing approach
○ this should be reserved for emerging claims of privilege
○ a balancing process would lead to uncertainty and additional pre-trial motions
○ litigation privilege has the same exceptions as other forms of privilege
■ public safety privielge
● in terms of clearly defined kinds of privilege, like s-c and litigation privilege, the rules should be very clear and easy, with simply defined exceptions, rather than a proliferation of balancing procedures.
Note on Common Interest
● basically operates as a defence to an allegation that waiver has occured through communications with a third party
● conditions to establish this privilege are strict
○ must be two or more persons, each having an interest in some matter, who jointly consult a solicitor
○ confidential communications made to the solicitor, though known by the various parties, remain privileged as against the outside world
○ however, the parties within the privilege are expect to share information
○ if they end up in a dispute, the privilege disolves and either party may demand disclosure of the communications.
○ this has been expanded somewhat to include siutations where a fiduciar-like duty exists to create a common interest.
(b) Casebook:
Blank v. Canada (Minister of Justice), 2006 SCC
Fish
Issues
● what is the difference and scope of solicitor-client privilege and litigation privilege?
Facts
● P is self-represented, though well experienced
● R laid 13 charges against P and Gateway Industries for fishery regulation offences
○ P was the director of Gateway
● Charges were initially quashed, then R laid new charges by indictment, which were stayed before trial
○ so P and G are suing for damages in fraud, consiparacy, perjury, abuse, and so on.
● P wants document dsicovery relating to the charges
○ R says no, claiming solicitor-client privilege.
● P is using the Access Act, which specifically says that records that are subject to solicior client privilege do not need to be dislcosed
Analysis
● the question is whether documents once subject to litigation privilege remain so privileged when litigation ends.
○ R says yes, because litigation privilege is just a kind of solicitor-client privilege and shares the same near-absolute privilege, including permanency.
● solicitor-client privilege has changed over time from a rule of evidence to a rule of substantive law.
○ the justice system depends on solicitor-client privilege because it is necessary that people being able to engage in full, free and frank communication with their lawyers
■ lawyers are people legal advocates, and need to be able to communicate in confidence with clients
● but litigation privilege is not directed at or restricted to communcations between soclitior and client.
○ may include third parties
● liti9gation privilege is aimed at protecting the adverserial process, not to promote the s-c relationship
○ it is to allow parties to litigation to prepare their positions in private without interference from their adversaries
● s-c privilege applies only to confidential communications between the client and the lawyer
○ exists any time the L and the C communicate
● litigation privilege applies to communciations of a non-confidential nature between the solicitor and third parties and even includes non-communivative materials.
○ applies only in the context of the litigation.
● so litigation privilege and s-c are aimed at different objectives and behave quite differently
○ can’t conflate the two.
● and once litigation is over, the privilege is gone
○ but only over once the underlying issue is resolved.
○ so unlike s-c privilege, litigation privilege is temporary
● it will remain inforce when the litigation which gave rise to the privilege has ended, but related litigation remains pending or may reasonably be expected.
○ this includes proceedings that raise issues common to the initial action and share its essential purpose.
○ this is all aimed at creating a “zone of privacy” such that the adverserial process can be used.
● Here P wants documents prepared by the government in order to prosecute P and G.
○ those documents were prepared to proseucte
○ and P wants them for a civil matter
○ so the two actions are unrelated
○ and they should be disclosed
● Plus, litigation privilegte will not protect disclosure where there are concerns about abuse of process- not a legal black hole.
● disclosure will not however be automatic and total
○ all subsequent litigation will remain subject to privilege if it involves the same or related partes and the same or related issues.
○ much of the lawyer’s brief will be covered by s-c privilge in practice, and anything falling into s-c privilege is forever and totally privileged
● plus, the Access Act sets up refusal to disclose due to privilege as an exception, rather than the default. - the Minister must invoke the privilege.
● there are other factors in the Act that will limit disclosure
○ may refuse to disclose records taht relate to investigative techniques or plans for specific lawful investigations
○ may refuse to dislcose things that might reasonably be expected to be harmful to law enforcement
○ may refuse to disclose things that may reasonably threaten the safety of individuals.
● plus, a lot of what the P is asking for should have been disclosed during the criminal trial!
● so litigation privilege ends when the litigation ends.
● litigation privilege is an exception to the principle of full disclosure, and is not given equal consideration as compatred to s-c privilege.
● also, there has been a lot of discussion as to wehther litigation privilege attaches to documents that are gathered or copied - but not created - for the purpose of litigation
○ this will be resolved where it is fully raised and argued.
Ratio
● so litigation privilege and s-c are aimed at different objectives and behave quite differently
○ can’t conflate the two.
● and once litigation is over, the privilege is gone
○ but only over once the underlying issue is resolved.
○ so unlike s-c privilege, litigation privilege is temporary
● it will remain inforce when the litigation which gave rise to the privilege has ended, but related litigation remains pending or may reasonably be expected.
○ this includes proceedings that raise issues common to the initial action and share its essential purpose.
○ this is all aimed at creating a “zone of privacy” such that the adverserial process can be used.
Peter Kiewit Sons v. B.C. Hydro, 1982 BCSC
Issue
● what are the limits of document disclosure?
Facts:
● P and B had a K to build transmission line
○ B was to provide steel so that the P could build in.
○ other projects goign on at the same time, so a lot of demand for steal
● construction was slow and P blames the lack of steel provided by B
○ there wasn’t enough, and some of what should have gone to P went to other projects instead.
● P wants further disclosure of documents
○ and wants B to say whether or not the documents or class of documents are in the possession of D, and if not, what happened to them
Analysis
● the issue is the extent to which P may require production and inspection of docuemnts relating to this and other contracts
○ P says documents relating to the other contracts may contain statements showing B’s case is bad.
● B doesn’t want to dislcose these other “mountains of documents”.
○ it objects to a search of everythign relating to the broader project out of the hope that something relevant might be there, since it would be extensive, expensive, and there is no liklihood that anything relevant will be found.
● Normally, a document which may be suposed to either advance a party’s case or damage the case of the adversary should be discoverable.
○ every document relating to a matter at issue, even if it would not necessarily be admittable as evidence on that issue, but which it is reasonabel to suppose contain information which might advance the aprty’s case or amage the case of the adversary is discoverable.
● however the precedential cases involved far fewer documents.
● it is not fair to require a party ito go to enormous expense and effort in order to search for documents which may not even exist.
● so waht to do?
○ we could make the search be on the P’s dime, or we could make P put up a security with costs awarded later once the results of the search are known
○ we could attempt to answer the issue objetively without any need for evidence, but this is probably unsatisfactory.
● What the court does is order P to focus the search
○ target a more precise set of documents, and establish a prima facie case that somethign relevant will be uncovered there.
○ then B will have to give an estimate of the time and difficult that would result from this search.
Ratio
● the normal rule for document discovery
○ every document relating to a matter at issue, even if it would not necessarily be admittable as evidence on that issue, but which it is reasonabel to suppose contain information which might advance the aprty’s case or amage the case of the adversary is discoverable.
● however the court doesn’t like fishing expeditions, so if it is a large category of documents and there is no certainty of productio nof anything worthwhile, the court may refuse to allow a broad search
○ may requrie a more targetted search.
Desgagne v. Yuen, 2006 BCSC
Issue
● what are the limits of discoverablity of electronic evidence?
Facts
● P was in a car carash and got brain injured
● she says she can no longer work as a systems analyst
● so D wants a lot of her home electronics so that it can show she’s been using the internet, playing games, etc
○ plus photos and other evidence that she is not as harmed as all that.
● D wants
○ document files
○ metadata relating to computer usage
○ webhistory
○ palmpilot, which D says contradicts her statement to a medical expert
○ xbox to show that D can use aelectronics
○ photos showing P’s quality of life.
Analysis
● Electronic docments
○ D wants the harddrive itself, since doesn’t believe that P has turned over everyt relevant document
○ so D wants the whole drive, and to search through it as it pleases.
○ there is no evidence that statements WILL be found, just that the may be found
○ you would not be able to search through a filling cabinet just because you claim it may contain documents, the same is true here.
○ hard drive be taken, but only throgh something like an Anton Piller order.
○ what about the deleted documents, which may be recoverable?
■ no evidence tehy were deleted to hide evidence, they were deleted in the ordinary course of use
■ no evidence that they will be relevant, only that they may be relevant
■ again, you can’t just speculate and then search through things like this.
● metadata
○ this is just intended to show the use to which the P has been putting her computer
○ D wants it in order to assess P’s computer functionality.
○ metadata does count as a document, although it is not intentionally created and requires XW interpretation
○ D needs to show evidence tha tthe metadata will be useful
○ D has XW, but none have explained how P’s metadata useage would assist in assessing her cognitive functioning.
○ it is not clear how metadata showing, for example, how long a file was open could provide insight into P’s congintive status, because she could have simply left a file open.
○ but even if relevance was established, the court is not going to requrie parties to go to great lengths or to incur enormous expense in a futile search for things that may not exist.
○ there is a balancing act here: value of the evidence against the seriousness of the invasion of privacy
■ court retains discretion to refuse order if the value of the evidence is marginal, and production would greatly invade privacy
■ we don’t want to drive people out of a trial for fear of having private documetns opened for no good reason.
● internet browser history
○ D says it is interesting because P may have learned her symptoms from internet sites
○ but there are so many other reasons why P may have visited those sites there is no way the interenet history cuold be relevant.
○ plus again, even if relevant it would be offset by privacy interests.
● Photographs
○ D says relevant to P’s quality of life.
○ typically disclosure of snapshots not going to happen
■ they are taken as brief snapshots, out of context
■ and are very invasive of privacy
○ once again, the value of the photographys as evidence is outweighed by the degree to which disclosure would violated P’s privacy.
○ pcitures of the P on vacation will not be helpful in showing cognitive impairment
Ratio
● electronic discovery is possible, but it will be rare that harddrives, webhistory, and metadata need to be disclosed
● even if these things are marginally relevant, they need to be weighed against the impact on the disclosing party’s privacy.
IBEW v. Hochstein, 2009, BCCA
Issue
● what is an undertaking of confidentiality, and how does it work?
Facts
● IB is suing H for defamation
○ H publicshed something about an IB “job recovery prgroam” where the union was using dues to substidize the labour costs of unionized contractors
○ IB says H implied this was an illegal tax evasion scheme, which IB says was false
● so document discovery occurred.
● there was an undertaking of confidentiality
● various documents made it to trial, inlcuidn gfinancial statements, records about contractors, and excerpts from newsletters
○ no mention of the undertaking of confidentiality made a trial, nor did D ask to be released from the undertaking or suggest the undertaking would expire after trial.
● IB lost
● H wanted to publish the information contained in the discovery
○ IB objected, and H applied to the court to use the documents
Analysis
● the implied undertaking of confidentiality precludes a party who has obtained documents on discovery from useing them for purposes other than the litigation in which they were obtained.
○ this is to prvenet suprise/litigation by ambush
○ to encourage settlement
○ to narrow issues.
○ basically makes unfettered disclosure possible.
● litigants who know their private documents will remain private and not be used for a collateral purpose will be encouraged to provide a more complete and cnadid discovery
● so aim is full discovery
● but there are some circumstances where the public interest in full disclosure may be outwieghed by another public interest.
○ so court may order that the undertaking does not apply to certain peices of evidence, and may instead impose such terms and directions as are just.
● In the UK, the use of the documents in open court, including where they are read out, does not end the undertaking.
○ if it did end ocne documents made it to court, their would be an incentive to destroy or conceal the existence of relevant documents
○ so even if a document is read in court, it is not available for outside purposes
● Sometimes an order may be used to vary the undertaking
○ like if there is some information in a civil action that the police want to use in a criminal investigation, the court may alter the order to allow that to happen.
● some courts in BC have suggested the undertaking of confidentiality does not apply to documents introduced at trial.
● So the law in BC is as follows
○ disclosures made during discovery in a civil trial cannot be used against a person in a criminal trial, since this is compelled testimony and there is a principle against self-incrimination
○ however, once documents are incorporated into evidence and the court record at trial, the undertaking ceases to apply
● so the undertaking evaporated once the documents were introduced at trial
○ plus, in any case, the undertaking wouldn’t apply here, since the documents were introduced by the union itself!
○ the undertaking is supposed to apply to discoverable docuemnts, not documents introduced by the party from whom they originated
○ the union cannot be prejudiced if documents it produced are used by the D, like any other member of the ppublic, for other purposes once the trial is over
Ratio
● there is an imlied undertaking of confidentiality which covers documents produced on discovery
● this undertaking ends once the documents are introduced at trial and become part of the public record.
● the undertaking does not work where the documents are used by the same party who produced them, in any case.
Hodgkinson v. Simms, p. 215
ISsue
● are photocopies of documents collected by a solicitor from third-parties covered by litigation privilege?
facts
● P says he invested bsed on bad advice from D
○ suing for breach of duty
● D has merged and moved a few times, and says some of the documents P is looking for are lost
● but P has managed to track down a lot of these documents and made photocopies of them
○ P says D could have found them for himself, but just didn’t want to make the effort
○ D says there is no privilege for copies of unprivileged documents, and in the interests of full disclosure, P should have to share them.
○ P says this violates the adverserial system.
Analysis
● privilege attaches to conventional communcations but also to documents like cheques, invoices, and other documents even though they may communicate indirectly
● this court is not going to use the US “lawyer’s work product” distinction either.
● generally trial by ambush should be avoided, and there should be full disclosure
○ this prevents ambush and facilitates settlement
● of course its hard to see how “ambush” applies here.
○ D is just as able as P to disvoer these documents
○ and P has told D about the documents
● the solicitor’s brief ought to be protected
○ if lawyers could dip into each others briefs by way of discovery, the straightforward trial process would be violated.
○ plus clients and third-parties trust lawyers to keep things secret, it’s an important part of legal representation
● the purpose of the privilege is to ensure a solicitor may proceed with confidence that the protected information or material he gathers from his client and others for the pruose of litigation, and the advice made on that basis, will not be disclosed to anyone without the consent of the client
● so how do we figure out what is privileged, and whaat is not?
● Dominiant purpose rule
○ where the document is brought into existence with the dominant purose of being used in the conduct of litigation, it is privileged and excluded from discovery
● Photocopes are brought into existence for the purpose of litigation- are they privileged?
○ UK case suggests they are privileged, being the produce of litigation and the solicitor’s efforts.
○ where a lawyer exercising legal knowledge, skill, and industry has gotten a collection of relevant copy documents for the purpose of litigation, those documents are privileged.
○ so copies are protected where the dominant purpose of their copying was the litigation.
● however, where you claim documents are privileged you must provide sufficient identification such that the court could decide whether they are indeed privielged.
○ they must be sufficiently identified.
Ratio
● solicitor’s privilege applies to all documents that are produced for the dominant purpose of the litigation (or anticipated litigation, or litigation on basically the same issue)
● this applies to photocopies made for the purpose of litigaiton
Dissent
● basically doesn’t think that you can make unprivileged documents privileged simply by photocopying them.
● the goals of disclosure are too imporatant, and we need to avoid trial by ambush.
Keefer Laundry Ltd. v. Pellerin Milnor Corp., p. 224
Issue
Facts
● K operates a laundry
● M provided K’s equipment, and K alledges the equipment was unfit and damged the laundry
● so suing for breach and negligence
Analysis
● solicitor-client priviege is the highest privilege recognized by law because communciations between lawyers and clients are essential to the adverserial system
○ clients need to be able to communicate with their representtives without fear of disclosure, or they will self-censor.
● a party claiming a document is privilege bears the onus of establishing privilege.
● Not every piece of corresondence between a lawyer and a client is privilege
○ it must be a communication between the lawyer and client
○ that entails the seeking or giving of legal advice
○ that is intended to be confidential
● so where laywer giving business advice, not privileged.
○ does not cover casual discussins, or conversations with someone who happens to be a lawyer
○ the laywer must be acting in a professional capacity at the time the information is relayed
● if claiming s-c privilege the lawyer must give general evidence of the nature of the relationship, the subject matter of the advice, and the circumstances in which it was rendered
○ but beware of waiver
● litigation privilege protects communications made for the dominant purpose of preparing for ongoing or reasonably anticipated litigation, even if those documents are generated by third parties.
○ more limited privileged
○ aimed at adverserial system
● limited to communications between client and third parties, and to docuemnts created by clients or third parties, for the dominant purpose of pursuing liitgaiton
○ lawyer may stand in forclient.
○ exception xw reports must be disclosed under the rules 60 days prior to trial
● to invoke litigation privilege, which must be done on a document by document bases, counsel must show
○ litigation was ongoing or reasonably contemplated when the document was prepared
○ the dominant purpose of creating the document was to prepare for that litigation
● showing dominiant purpose will require the party to proesent evdience
○ of the circumstances urrounding the creation fo the document
■ when it was created, who created it, etc.
■ but again, beware of waiver.
○ focus of the inquiry is on the time and purpose for which the doucemnt was created.
● lawyer’s brief privilege protects the lawyer’s work product, including any notes or information or reports collected to prepare for litigation or to give legal avice
○ if a group of unprivileged documents is collected, the collection itself becomes privileged
● purpose is to prevent people from “looking into the mind” of the layer
○ allows layer to make all necessary inqurieies to prepare for litigation
● in order to use lawyer’s brief privilege, there must be an exercise of the lawyer’s skill and judgement in assembling the alledgedly privileged information
Ratio
● sets out s-c privilege, litigation privilege and lawyer’s brief privilege
● s-c privilege
○ it must be a communication between the lawyer and client
○ that entails the seeking or giving of legal advice
○ that is intended to be confidential
● litigation privilege
○ any comunication or document between lawyer/client and third parties for the dominant purpose of the litigation
○ must occur during ongoign litigation, or where litigation is reasonably anticiapted
○ document-by-document basis
● lawyer’s brief privilege
○ covers notes, reports, documents that are collected by an exercise of the lawyer’s skill and judgment
○ may be a collection of unprivilegedged documents that become privileged once collected.
Dykeman v. Porohowski, 2010 BCCA
Issue
Facts
● P was injured in two car accidents about a year apart
○ damages were settled and dvided among D1 and D2
● First accident, P was a passenger in DP’s car
○ he turned left ontot he hgihway and was struck by a car.
● Second accident, P stopped and entered an interesection, DR ran the light and hit her
● after the first accidnet, soem ongoing pain in neck and head
○ then the second accident caused further damage
● P was going to be a show jumper, but can’t do it anymore
● a lot of the trial was about the impact on P’s future income
● certain internet postings were led at trial which supported D’s assertion that the injuries were less severe than claimed, and that P’s income would be less than claimed.
Analyses
● the main ground of appeal is whether certain internet postings should have been led
● these were listed by D in a list of ‘privileged docuemtns’, but quite late (a few days before trial), and P had not sought production
○ privileged because they had been procuded (copied) for the purpose of litigation
● P says since the documents of the postings were not released within 7 days before trial, this was a trial by ambush.
● TJ found that a listing vaguely describing the documents was sufficient discovery here, and if P wanted more she should have requested it.
○ P was given a mere halfhour to go over the documents, then seh will be examined on them.
○ the documents were 124 pages long, with thousands of writings.
● a list of privileged documents must contain sufficient description so if the claim is challenged, it can be considered by a judge in chambers.
○ and each claim of privilege must be established on a document by document basis.
○ you must descibe each document individually rather than as a bundle.
● so none of the listed descriptions were suffiient
○ if the descriptions had been adequate, P may well have challenged the claim of privilege.
● where disclosure is inusfficient, you may still be examiend on them, but only by discretion
○ here counsel did not explain why the list was non-dsicriptive, and argued ony that disclosure had been sufficient
■ so TJ had nothing to consider.
● and given that P only had half-an-hour to look over the documents, it cannot be said that she was not prejudiced by the failure to correctly list.
Ratio
● a list of privileged documents must contain sufficient discription, on an individual and document by document basis, that a judge can assess whether the claim of privilege is adequate.
Tai v. Lam, 2010 BCSC 1819
Issue
● What is the extent of document discovery in terms of a claim for loss of income?
Facts
● Motor vehicle accident
● D wants production of 4 years of bank statement and business records to defend against P’s claims for loss of income
Analsyis
● this goes beyond what is reasonable
○ asking for all bank statements is a broad request
● someone who says “i have been injred and can’t work” is not exposing themselves to a full disclosure of all possible financial disclosure
○ it is simply not proportional.
● there has to be a better nexus and justification for the production of documents here
Ratio
● disclosure of documents must be proportional
○ you cannot ask for every possible document
● simply claiming loss of income does not entitle the other side to an unlimited and full audit of all your financial records.
Tab J
7-1 (old 26) Discovery and Inspection of documents
● within 35 days following pleading, each party must prepare a list of documents including all documents that are or have been in the party’s possession that could be used by any party of record to prove or disprove a material fact, and any other documents that the party intends to be referred to
● this list must be served on all parties of record and include a brief discription of each listed docuent
● if it is claimed that the documents are privileged, the claim must be made in the list of documents with the basis of the claim
○ the nature of the document for which privilege is claimed must be described so that other parties can assess the validity of the claim of privilege
● if a party believes that the list omits documents or class of documents that should have been disclosed, they may demand that the party who prepared the list amend the list, and make the new documents available.
○ the party must comply wtihin 35 days, or explain why the documents should not be made available
○ court may order compliance or make the documents available
● you must allow the other party to inspect and copy all listed documents.
● if the documents are in the hands of a thirdparty, the court may make an order that the documetns be produced, inspected, and copied
● if the documents are under a claim of privilege, the court may inspect the document for the prupose of deciding the validity of the claim.
● if you fail to list a document and make it available, you will not be able to use it as evidence
● issues as to document dislcosure may be addressed prior to trial in a separate hearing
5 (old 68) Case Planning
● Case planning conferences may be requested or directed
● each party must propose how documents are going to be dsivoered, examined, disputed, how XW will be dealt with, witness lists, trial type, estimated length and preferred period.
● conference is conducted by a judge or master, and each lawyer representing a party of record must be prsent
○ you may attend by telephone, and may be exempted if its not reasonably possible for you to attend given the disatance or costs, or if there are health or compassionate reasons, or other extraordinary circumstances
● during the conferenec, timelines will be set out
○ amendments may be ordered to set out the details of the facts, relief, and the legal basis of relief
○ plans for discovery, document discover,y admissions, and so on will all be made and ordered.
● at the end of the conference the judge must make a case plan order
● case plan orders may be amended
|Examinations for Discovery / Other Discovery / Applications: |
1. Topics:
Examinations for discovery
● this is an exmination under oath, under rule 7-2
● in Canada you have a right to oral examination as part of discovery
● where
○ in a board room or courthouse, near where the person being discovered resides
● who
○ individuals, possible multiple parties requrieing multiple dsicvoeries
○ represnetative of corporation
● purpose
○ learn about the other side’s case
○ pin down a witness to one version of fact
○ to emphasize, eliminate and delineate the issues
○ strategy- you get to test the waters and give your witness a tast of what litigation is like
○ forces everyone to get organized
● under new rules limited to 7 hours maximum, although parties can consent to longer periods
● the court will grant extensions liberally, expecially where the witness is deliberately being slow or evasive
● the scope of questioning is broad covering everything that is relevant
○ what is relevant at discovery is broader than what is relevant at trial
○ test at disovery: it might be relevant
○ test at trial: it must be relevant
● discovery may be used
○ in summary trial as evidence, transcipts attached to affidavit
○ to impeach at trial
Objections at oral Discovery
● object where
○ the question asks for privileged information
○ the question is not relevant or not related to pleadings
○ the question contains internal assumptions
■ “After you stole the money, did you spend it right away?”
○ vague or confusing questions
○ most opinion evidence is irrelevan
○ calss for sepculation
○ argumentative/question of law
■ you cannot ask a Q that will result in a legal answer as opposed to a factual answer
○ a mistatement of earlier evidence
● It is dnagerous to object too much, since it allows the other side to ask a better, clearer question, and may result in rediscovery.
○ hands off approach better
(b) Examinations of non‑party witnesses
(c) Interrogatories
(d) Physical examinations and inspections
(e) BCSC Chambers and applications
2. Readings:
(a) Walker: 571-573
Garry D. Watson and Craig Perkins, eds., Homsted and Watson, Ontario Civil Procedure: Purposes of Examination for Discovery
● most important discovery device is examination for discovery
○ allows laywers to get sworn statements by parties themselves, rather than affidavits
● Purposes
○ enabel the examining party to know the case that must be met
○ to procure admissions which will make formal proof unnecessary
○ to procure admissions which may destroy an opponents case
○ to facilitate settlement, pre trial procedures, and trials
○ to eliminate or narrow issues
○ to avoid surprise
● answers given during discovery can be used to impeach the witness if they change their story at trial, so it allows counsel to pin witnesses down useing their answers on discovery
● most laywers believe that discovery facilitates settlements, but emprical data denies this
○ where discovery is reaced, more likely to make it to trial
○ the greater the time spent in discovery, the more likely the case will reach trial.
Use of Examination for Discovery at Trial
● two basic ways an examination for discovery may be used at trial
○ a party may read into evidence any part of the examination for discovery of an adverse party.
○ a party may use the evidence given on examination for the purpose of impeaching the deponent, as it can with any previous inconsistent statement.
● basic exception for rule against hearsay
○ any witness who has given evidence at trial may be impeached by use of a prior inconsistent statement
■ may be from any source: conversation at cocktail party, affadavit, prior conversation, etc.
● counsel are looking for a few things
○ statements that can be used as admissions and hence read in at trial.
○ counsel will seek to exhaust the recollection of the witness and tie the witness down to a story, so that if the witness changes their story, the prior statement can be used to impeach.
(b) Casebook:
B.C. Lightweight Aggregate v. Canada Cement Lafarge, 1978 BCCA
Issue
● who gets to pick the representative to be discovered of a corporate party?
Facts
● P sued a bunch of corporations for conspiracy
● P wanted LC to attend to be examined for discovery on behalf of LF, one of the corporate clients, and LC was the manager of LF
● P had already begun discovering one of the LF directors- this is S
○ and S was the designated rep for LF
○ but P wants S himself.
Analysis
● under the rules, any perosn who is or had been an officer or servant of the corporation could be subject to oral examination
○ only one person
○ but the wording suggests the adverse party gets to pick the representative.
● however the newer rules change this to “a person”, not “any person”
○ this suggests that the company has the right to nominate its representative.
● so the corporate party must disclose the name of a person who is knowledgeable about the matters in question
○ but this doesn’t necessarily take away the right of an adverse paty to select a representative.
● so basically the adverse party does have the right to select the officer to be examined
○ however, once you’ve chosen the representative, you have to apply to change, and this is discretionary
Ratio
● the adverse party gets to pick the representing officer or servant of a corporate party
● but if you want to change or examine a different officer, you must apply ot the court, who has the discretion to refuse.
Fraser River Pile and Dredge v. Can-Dive Services Ltd. 1992 BCSC
Issue
● are there limitations on the right of Counsel to discuss with his own witness during an adjournment the evidence already given or to be given without the consent of the examining counsel?
Facts
● this case was abotu the sinking and loss of the P’s barge while the D had rented it
● the main question was wether P or D was responsible for making the decisions concerning the towing of the barge during storms.
● J was produced by D to be examined
○ D adjourned half-way through to discuss the evidence J had produced
● P says D shouldn’t be communicating with the witness during examination
○ should have to wait until after.
Analysis
● in NS, it is unethicla for a lawyer to communicate with a witness concerning evidence during an adjournment without consent from all counsel.
● D here wanted the adjournemnt to ascertain if there was a change in what he originally understood the witness’s evidence to be.
● Ontario doesn’t allow this
○ aimed at preventing counsel from interfering with the evidence being given by the witness during cross-examination
○ aimed at preventing the appearance of any improper conduct.
○ we don’t want counsel telling the witness what to say
○ and we don’t want the appearance of this either.
○ however, civil procedures are often long and have many lengthy adjournments, and it would be impractical to limit Counsel in his discussions with witness
○ so not a total ban
● where discovery is under 1 day, Counsel for the witness should refrain from discussion with the witness
○ in order to maintain the appearance of proper conduct, cousnel and witness should not even be seen to converse during recess
● when discovery is over 1 day, counsel is permitted to discuss with the witness any and all issues relating to the case, inclduing witness’s testimony
○ but prior to doing so, counsel should notify the other party that this is going to happen
● counsel should not seek an adjournment during the examination to specifically discuss the evidence that was given by the witness.
Ratio
● where discovery is under 1 day, Counsel for the witness should refrain from discussion with the witness
○ in order to maintain the appearance of proper conduct, cousnel and witness should not even be seen to converse during recess
● when discovery is over 1 day, counsel is permitted to discuss with the witness any and all issues relating to the case, inclduing witness’s testimony
○ but prior to doing so, counsel should notify the other party that this is going to happen
● counsel should not seek an adjournment during the examination to specifically discuss the evidence that was given by the witness.
Sinclair v. March, 2001 BCSC
Issue
Facts
● Dr performed 5 operations on the P in 1994 and 1995, and was the only person involved with the recovery
● P interviewed Dr in 1997, and at the time the Dr thought the initial surgery was negligently performed, and agreed to give evidence at trial
● DM is the srgeon, and met with Dr and P
○ DM interview Dr, P did not
○ meeting deteriorated over issues of privilege
● P contacted Dr by letter, requesting a report touching on various issues in the trial
● Dr agred to reply, but not as an XW
○ this is the first time P knew Dr would not be XW
○ so P wants to examine Dr
○ Dr says P already has everything he needs.
● while there were two interview, the first interview did not produce defiintie information, and the second was led by DM and quickly broke down.
○ any answers Dr has given were vague and unclear
○ and while he promised to reply in writing, he has not yet done so.
Analysis
● rule 28 allow pre-trial examinatio of witnesses who may have material information realting to a matter in question
○ this aims at full disclosure
○ because the third party does not “belong” to either party, both can question.
○ faiclitates presentation and clarification of issues for trial, while guarding against the danger that a party will unfairly use another’s expert to prepare his own case.
● rule 27 person be examined for discovery will anwer all questions within knowledge or means of knowledge, regarding any matter that is not privileged relating to a matter in question.
● rule 28 is broader because it is not restricted to matters at issue as defined in the pleadings, but includes anythign that is generally relevant to the parties.
● so rule 28 allows a much broader, general discovery
○ and it includes both fact and opinion.
● rule 28 is drafted so that once an XW is retained in the litigation, his opinion cannot be solicited under this rule unless the opinion could not be obtained through other means
○ XW could be examined if not retained or if the applicant was not able to obtain the opinion through other means
● as long as you are not paying the XW, he can be examined just like any other witness.
○ this minizmies the distinction between fact and opinion, which simplifies things
● the DR has not been retained by anyone
○ case concerns DM, who cannot be discovered.
○ DR has valuable information and first hand experience of the surgery performed by DM
○ there is no good reason why DR shouldn’t testify
■ no problem of privilege or unfairness here.
● The search for truth requires access to all the relevant information
○ the wintess here has unique and irreplaceable knowledge
○ there is a need for his opinion
○ no claim for oppression, privilege or confidence here.
● P must limit his discovery to answer the questions asked in the letter, without requiring new research or a literature review
Ratio
● third party witnesses can be compelled to testify under Rule 28 (check new rules)
○ they can be examined on any matter broadly relevant to the dispute
○ fact and opinion
● XW who are not retained and are being examined under rule 28 are treated just like any other witness, and the distinction between fact and opinion is not relevant in this context
● third party witnesses will probably be paid a fee.
Practice Directions (Masters’ Jurisdiction)
● Masters have the same jurisdiction as a judge in chambers, unless the Chief Justice has given a direction that a master is not to exercise that jurisdiction
● Masters do not have jurisdiction in a variety of areas
○ appeals
○ judgment where a party is disabled
○ criminal matters involving the liberty fo the subject
○ contempt
○ injuctive relief, except in the family law context
○ to set aside, amend, or vary an order of a jduge excpet in a few family law matters
○ to grant a stay of proceedings in an arbitration
● Masters may make orders
○ for summary judgment where there is no triable issue
○ to strike out pleadings if there is no determination of a question of law
○ judgment in default
● Master has the same jrusidction as a judge for enforcement of orders
Rule 18A (new Rule 9-7): Masters’ Jurisdiction
● Masters have the jurisdction to adjourn or dismiss certain applications, on the ground that the application is not suitable for dispositio nunder sub-rule 1
● or the application under sub-rule one would not assist the efficient resolution of the proceeding
● on an application under subrule 1, master may order
○ a part to file and deliver an affidavit or notice
○ that an expert or witness attend court for cross examintations
○ set a deadline for cross-examinations by affidavit
○ that no further evidence be aduced on the application after a deadline
○ that a party file and deliver a brief with contents as the court orders, on a deadline.
Fraser v. Houston, BCSC 1997
Issue
● when may question not be answered?
Facts
● P is refusing to answer questions and produce documents showing his ability to pay a potential debt of 600K
○ if this document is prodcued, D says it would preculde P’s claim.
Analysis
● two issues
○ whether the P should have to post seurty for costs
○ and whether the P should be required to answer certain questions on discovery and produce documents showing his ability to pay a potential debt of 600K
● Security for costs
○ Dealt with in section on costs
● Refusal to answer question
○ D was asking P if at the time the “agreement” was entered into, P was judgment proof.
■ P says he had the requisite assets
○ P says he shouldn’t have to answer these questions
○ D says he should.
○ While the questions may have some probative value with respect to the allegation of economic duress, the line of quesiton could result in a detailed exploration of P’s financial status
■ this is a serious invasion into a man’s privacy
■ the probative value is outweighed by the prejudicial effect on P’s privacy.
■ uses Seaboyer.
Ratio
● A witness may refuse to ask a question if the answer’s probative value is outweighed by its prejudicial effect
○ this may include the effect on the witness’s privacy
Forliti v. Wooley, 2002 BCSC
Issue
Facts
● F gave birth to B by breech delivery
● P says D was negligent in faling to prevent inujry to B
○ B suffered severe injuries due to a lack of oxygen during birth
○ “external version” to reposition the baby was performed, and some of the issues in the case relate to D’s knowledge about this procedure.
Analysis
● the scope of discover is set out in the rules and the case law
○ a person being examined for discovery shall answer any question within his or her knowledge or means of knowledge relating to any matter, not privileged, relating to a matter in question in the action.
● Does not need to focus strictly on a matter in question- not rigid scope
● questions must be relevant to issues between the party examining and the party being examined
○ relevance to third party is insufficient
● opinion evidence does not need to be provided
○ exception: where the question is regarding the witness’s professional conduct or competence, if that conduct or competence is at issue in the trial
○ these questions must pertain to the expertise of tehw tiness, and not to the conduct of another defendant.
○ so the Dr can be questioned about his opinoin on his own competence and his own treatment of F, but not questioned about his opinion on the competence of the nurses and other doctors involved.
● hypothetical questions may be put where the witness has expertise and where the hypothetical is relevant to some issue in the case, as long as it is not overly vauge or broad
● counsel for the wintess may object to the form of a question if it is vauge, confusing, unclear, overly broad, or misleading.
● court will not order a questio be answered if the meaning of the question is not clear, or if it appears to invovle questions of law.
● counsel should be restrained in objection, and questions shoul be answered.
Ratio
● sets out guidelines for scope of discover
● questions must be relevant to the parties examining and being examined, but do not need to focus strictly on a matter in question- can be more general relvance
● opinion evidence does not need to be provided, unless the witness is an expert and is being asked about his or her own professional conduct
● hypotheticals are OK as long as the witness is an expert and the hypothetical is not too broad
● counsel may object if the question is vague, confusing, unclear, overly broad or misleading
● questions don’t need to be answered if they are unclear or involve a question of law.
Kendall v. Sun Life Assurance Company of Canada, 2010 BCSC 1556
Issue
● What are the limits to objections during examinatio for discovery?
Facts
● P is suing D for denial of disability payments
● The rules say that a person being examined must answer any question within his or her knowledge regarding to any matter that is not privileged which relates to a matter in question
● Basically counsel for D objected to practically everything P was asking
Analysis
● discovery is broad, and relates to all matters in question
○ just becauuse an area of examination may expose a great deal of material is not a reason to limit it.
● it may not always be clearly apparent that a single question will produce relevant evidence, but unless it is very clear that the answers are irrelevavnt, the questions should be allowed.
● Counsel for the party being examined should not interfere on the cross unless it is clearly neessarty to resolve an ambiguity
● this is particularly important now that there is a timelimit on discovery- counsel shoulnd’t use objections to waste time
● Time limit may be extend on appliaction, but this requires an application, so objects can be used as a form of economic coercion.
○ thus we want a more “hands-off” process of examination
● here P was simply asking quiestions about general practice, which was proper material for discovery
○ this doesn’t require extensive research or a great diversion from the trial.
○ the relative treatment of the P’s disability claim compared to the general practices of the inusrer may well be relevant and the proper subject of discovery
○ there are limits to how far P could go in inquiring about D’s treatment of other claims, but not there yet
○ it may well be relevant if the insurer addressed P’s claim in an automatic and superficial way.
● some specific questiosn are addressed
○ P was entitled to ask about the state of mind and training of the witness, since clearly relevant
○ broad questions may be ok; they should be answered and give the P a chance to narrow the focus
○ D objected in ways that gave the witness cues, which was improper
○ D objected often sayin that things were confusing- this was over protective. If the witness didn’t understand, she was perfectly capable of saying so.
■ besides, part of the dynamic in a cross is psychological
■ the constant interruptions undermined the authority of the examiner.
■ you can see this as the witness became more and more obtuse as the objections continued.
● so in general the objections were undue interference in the flow of the examination
○ some of the questions may have been of marginal relevance or worded badly, but that’s not enough to allow this constant object
■ respect ougth to be shown to opposing counsel
● P eventually left discovery after conclusing that the interupptios were making it impossible to continue
○ court will rarely allow continuation of discovery where a party walked out, but here P had little choice given the extent of discovery
○ the 7 hour time limit may be extended with leave of the court
○ given the extent of the interruptions, and the unresponsiveness of the witness, teh ability to cross was defeated
○ so the P will be entiteld to a new 7 hours discvoery
Ratio
● objections should be rare during discovery
○ the goal is “hands off”
● Particularly important concern since time limts are now set and limited
● if the witnesses is particularly uncooperative or opposign counsel objects too much, an application may be granted to allow a continuation of discovery.
Tabs M, N
7-2 (old 27) Examination for Discovery
● Each party of record must make itself available for examinations for discovery by adverse parties of record
● discovery is limited to 7 hours unless the witness consents
● this period may be extended where
○ the witness is evasive or unresponsive
○ the witness denies or refuses to admit things they should have admitted
● the court may consider when considering an application to extend discovery
○ the condcut of the examining party
○ whether or not it was reasonable practicable to complete exmaintion in 7 hours
○ the number of parties and exmaminations on the table
● where a party is a corporation, the exmaining party may examine one repsenative
○ the party to be examined mustnomiate as its repressentiative an indviidual knowledgable concerning the matter in question
○ the examining party may examine the person nominated, or any other appropriate person who is/has been a director or officer or agent
● if the person to be examined is mentally disabled, his litigation guardian may be discovered, but in order to examine the disbled himself you need leave of the court
● party wsihing to conduct examination must give notice 7 days prior to the examination for discovery, and serve notice on all parties of record
● the person to be examined must produce for inspection all documents in possession or control relating to the matters in question
● examination for discovery is a cross-examination, and may be re-examined by non-adverse parties if they want in relation to any matter respecting which he has been examined
● a person being examined must answer any question within knowledge or means of knowledge regarding any matter relating to the question in action, and is compellable to give the names and address of all persons who might have knowledge relating tot he matter in question.
● if a perosn under examinatio nobjects to answering a question, the objection must be taken down by a reporter and the court may decide the validity of the objection, and if invalid, may order tohe person to submit to further examination.
7-5 (old 28) Pre-Trial Examinations of Witnesses
● provides a means of acquiring otherwise inaccesible information
○ aimed at providing information relevant to the action rather than admissions to be read in trial.
○ stops witnesses from picking sides and refusing to share info.
● court may order persons not party of record to submit to be examined on oath on matters in question, with costs usually paid by the examining party
● experts retained in preparation of trial cannot be examined under 7-5 unless there is no other way to obtain the facts and opinios from this person
● this examination must be supported by an affidavit setting out the matter in question
○ if the person is an expert, why this is the only means through which their opinion could be sought
○ that the propose witness has refused to answer a question otherwise, or has given inconsistent statements
● a person to be examined under this rule may have subpoena served on them rqeuiring them to bring documents and evidence to the trial/examination as evidence
● the person may be crossed by the party who obtained the order, then the other parties of record, then the party who obtained the order again.
● limited to 3 hours.
7-3 (old 29) Discovery by Interrrogatories
● A party may serve interrogatories with consent or with leave from the court
● if the party is a coroporate body, the interrogatories may be served byt he officer or membre of the corporation
● the order may set terms and conditions on interrogatories, including the number/length, matters to be covered, timing of response, and notification to other party
● a person may object to an interrogatory by affidavit
● if a person answers defiicently, the court may require further answer
● a party may object to an interrogatory on the grounds that it will not further the object of the ruels, and may request the court to strike out the itnerrogatory
● you may serve interrogatories on the lawyer of the person, who must promptly inform that person
7-6 (old 30) Physial Examination and Inspection
● the court may order a person submit to a medical examination
● person who is making the examination may ask any relevant questiosn with respect to the medical condition or history of the person being examined.
● The court may order the production, inspection, and preservation of any property if necessary to obtain full evidence
○ the court may authorize a perosn to enter onto land or building for the purpose of this rule.
22-2 (old 51) Affidavits
● An affadavit must be in first person, showing the name address and occupation fo the person swearing
● must be sworn and signed
● if the perosn is unable to read, there must be someone who swears and certifies the person understood it
○ same thing goes for interpreters and those who don’t understand English
● any alterations must be initialled
● affidavits may state only hat a person swearing or affirmng the affidavit would be permitted to state as evidence at trial
8-1 (old 51A) How to Bring and Respoind to APplications
● A person bringin an application must file a notice of the application and the afidavits supporitng it
● must not be longer than 10 pages, and must set out the orders sought, the factual basis of the application, the rules relied on and the legal arguments used, a list of the supporting documents and affidavits, an estimate of the length of the hearing, the date and time and place of the hearing.
● copy of this must be served on all parties of record and on every person affeted by the order sought.
● must be filed 7 days before the hearing
● parties may respond setting out the response, the supporting documents/affidavits
○ 10 pages, whether consent/oppose/no position
○ if opposed, the factual and legal basis and supporting documents and estimate of length of hearing
● applicant may also respond
● no other doucments or affidanvits other than those filed in responses
● unless the application is likely to take longer than 2 hours, no written arguments shall be filed other than those in the application or application response.
22-1 (old 52) Chambers Proceedings
● includes
○ petitions
○ application to chnage/set aside a judgment
○ appeal from the order of a master, registrar, etc.
● if a party fails to atttend, the court may proceed if it will further the objectives of the rule (basically defaul)
○ this will only be reconsidered if the person failing to attend was not guilty of wilful delay or default.
● evidence must be given by affidavit, but the court may order someone to appear for cross-examination or examination, either before the court or another person as the court directs.
● chambers hearings are public unless special circumstances apply
● the court has the power to
○ grant or refuse the relief claimed
○ adjourn
○ obtain the assistance of experts
○ order a trial of the chambers proceeding, either generally or on a particular issue
● if it appears notice wasn’t give, court may dismiss the proceeding, adjourn the proceeding, or direct an order to be served on the person.
|Complex Litigation Part I |
1. Topics:
Res Judicata
● common law rule of evidence, preventing parties from relitigating questions and issues which were decided or could have been decided in the prior proceedings
● two branches
○ cause of action estoppel
○ issue estoppel
● basic staement is that you cannot take a different route to liability once an initial route is defeated.
○ issue estoppel works the same way, but limited to a single issue- smaller scope.
● concerns
○ P sues and loses, wants a second shot at it.
○ P sues and wins, wants to go back to the well
Res judicata: Principles Involved
● finality
○ public interest in having disputes resolved once and for all
○ its unfair for a party to be vexed twice for the same cause
● judicial efficiecny
○ dont want to exhaust resources by suing over and over on the same stuff
● consistency
○ don’t want inconsistent results
● trial on the merits
○ try on the merits, but only once
○ the other values overbear the search for truth once it has been conducted the first time.
Cause of Action estoppel
● a rule of evidence that applies to final decisions of a tribunal of competent jrusidction over the parties and subject matter of the dispute that prevents or precules the parties from religiating matters that were or could have been litigated in the first proceeding
○ applies to claims that were not advnaced but could have been advanced
● test
○ is there any satisfactory explanation why the claim was not brought before?
● Britannia airways
● Cannot avoid a cause of action estoppel merely by proposing a new legal theory
● privies are people with a sufficiently close connection or identity of interest with one of the parties
○ the degree of connection between the parties makes it just to hold that the decision made on one should be binding on the other
■ eg, employer/employee, business partners, parent and child, directors and offiers, agency relationships.
● cause of action estoppel may arise where:
○ attempting to attack collaterally the earlier finding
○ cannot exert a new legal theory on the same set of facts
○ cannot rely on new evidence that was discoverable by reasonable examination before
○ second action must relate to a second and distinct legal action.
● exceptions:
○ if after the initial decision but before your appeal is resolved, you get the benefit of the law
■ but if the case was resolved prior to the law chanign, you cannot acces s the new law without a REALLY good reason
■ must show that application of the rule would be unjust
○ fraud on the court
○ fresh evidence
■ that was decisive and was not available before by due diligence
● cause of action estoppel may apply to default judgments, and consent judgments
● it may apply to the decision of an arbitrator or tribunal if that decision is final
● it may apply to foreign judgments based on comity
● dismissal for want of prosecution will not lead to cause of action estoppel
● interlocutory injunctions are not determinations on the mertis so will not lead to a cause of action estoppel
Stare Decisis
● different but related
● basically says legal decisiosn should be respected
● must follow decision of higher courts and courts of the same level unless there is good reason
Abuse of Process
● something that goes against the grain of the justice system
● the remedy is the nullification of the original judgment
● may be used in cases like McKinley where there is something apporaching a collateral attack, but without mutuality.
Issue estoppel
● Test
○ issue must be the same as the one decided in the prior decision
○ prior decision must be final
○ parties to both proceedings must be the same or privy parties
● deals with issues instead of causes
● the issue decided in the previous ruling must be essential to that decision, not merely collateral
● the mutulatiy requirement means a part seeking to evoke the estoppel would be bound if the case went the other way
○ this requirement is relaxing, and is no longer law in the US
● where there is no requirement of mutulatiy, you end up with defensive and offenseive non-mutual issue estoppel
○ In the US, estoppel may be used both as a shield and as a sword
■ defensively
● D2 is involved in case 2, but not in case 1
● P1 lost the same issue in case 1
● P1 may not retry that issue against D2, even though D2 was not present in the first action
■ offensively
● P2 may use issues desided against D in case 1 in case 2
2. Readings:
(a) Walker, pp. 309-310, 317-347
The Scope of the Matter: Introduction
● Joinder and res judicata are both aimed at avoiding duplicative litigation
● problem because where there is multiple cases on the same issue, this takes up extra time and money from the parties, the justice system, and it raises the spectre of inconsistent verdicts
● if P has multiple factual and legally related claims pursued in seperate actions, the rules give the judge wide discretion to merge or join the claims
● res judiciata means that once a matter is resolved, teh losing party cannot sue again for the same cause of action or a different cause of action that turns on the same issue
○ provides clsoure/finality
○ limits wastage of judicial resources.
○ may run into problems when third parties are involved- they have not yet gotten a “bite at the cherry”.
Res Judicata: Introduction
● prevents relitigation of settled matters- losing P cannot sue again.
○ basically the losing part is estoped from disputing or questioning the judge’s finding on the merits in any subsequent claims.
● two limbs: cause of action estoppel and issue estoppel
Cause of Action Estoppel
● when a court has adjudicated a claim between 2 or more parties, and a second action is brought by the same parties that is in some way related to the first.
○ the decision in the first action may bind the parties.
● if the P wins the first action, his or her cause is said to merge in the judgment, and cannot be reasserted
● if the P wins the first action, the cause of action is said to be barred by the judgment for the D
Issue Estoppel
● the second action does not involve the same cause of action
● but in some circumstances, the courts are prepared to treat any issues decided in the first case as settled in the second case, and so not open to relitigation.
● differes from stare decisis
○ this doctrine is that a rule of law from an eariler case may control the results in the later case
○ parties in the later case can argue that the rule does not apply to their facts
○ courts give weight to jurisprudence though
● Re Waring decisions
○ No. 1
■ two trustees under will wanted to know whether the annuities under the will were subject to taxation. The court of appeal found that they were.
○ in Berkely v. Berkely, a little why later, the house of lords overruled this finding
○ then the Waring trustees made another application
■ the action by the annuitant who was a party to the first action was bound by res judicata, and had to pay tax
■ the annuitant who was nota party to the first action took tax-free!
○ now, where law has been judiically changed, courts may reopen procedure.
Britannia Airways Ltd. v. Royal Bank of Canada (2005) Ont. SCJ
Issue:
Facts:
● BA flies aroudn the world.
● NV was BA’s agent in Egypt
● BA was in a Jet Set Card system
● BA claims NV overcharged useing the Card system, so sued Air Routing (in Texas) and RBC (in Ontario).
● Pleadings were exchanged in Ontario, but that’s it.
● BA straight up lost the lawsuit in Texas
● 2 years later, BA wants to revive the action against RBC, with AR and a number of other parties - RBC moves to strike, stay, or dimiss based on res judicata and abuse of process.
Analysis
● RBC - having lost the Texas case, Britannia is trying to relitigate the same facts in Ontario in a different guise
○ all of BA’s claims deal with same basic facts, which are NV’s fraud and the failure of AR to detect the fraud
○ RBC says had BA won in TX, RBC could not fight those findings, so BA should be bound here.
● BA - these are different claims
○ TX was about fraud and negligence
○ ON is about breach of contract and negligence in the design of teh card system.
● Res judicata
○ prevents the reltigation of matters that have already been determined by a court of competent jurisdiction
■ don’t want same party harassed twice for same complaint
■ want final and conclusive judicial decisions
○ contains cause of action estoppel and issue estoppel
● Cause of Action Estoppel
○ prevents the same cause of action from being litigated tiwce, also bars claim which properly shold have been dealt with in the first proceeding
○ cannot relitigate a case by advancing a new legal theory in support of a claim based on essentially the same facts or combination of facts.
■ not worried about the legal label, but the underlying factual circumstances
■ can’t relitigate same facts with different label.
● Issue Estoppel
○ applies to prevent relitigation of issues that have previously been determined
■ same questions have been decided
■ the prior decision was final
■ the parties to both proceedings are the same or their privies
○ here the lawsuits rested on the same factual allegation, and the TX decision was final- but were the parties privy?
● Privity
○ cause of action estoppel will bar claims against RBC if RBC is privy in interest to matters and issues that could have been raised in the TX proceeding, relating to the same subject matter as the ON proceeding.
○ privity of interests rests on the concept of mutuality
■ there must be a sufficient degree of connection between the two parties such that it would be fair to permit a party to rely on the earlier determination involving the other party
■ would the party seeking to take advantage of the judgment have been bound had the judgment gone the other way?
○ here, if BA had been successful in TX, RBC could not have challenged AR’s liability to BA
○ further, RBC’s liability, had it been addressed in TX, would have gone the same way as AR’s
■ in other words, logically if AR was not liable, RBC could not be liable either (based on facts in this case)
● Conclusion on Res Judicata
○ In TX, BA litigated a set of facts based on fraud, negligence, conspiracy, and theft
○ RBC has established that this is just new legal labels applied to these same factual determinations
○ so both branches of res judicata apply to bar action against RBC
Ratio
Notes on Brittania
● in Hoque, the court suggests that res judicata does not work in a bright-line way
○ some things that should have been raised in the first proceeding may be raised later
○ Examples
■ crossclaim against a co-defendant allowed because it related to a “distinct cause of action” (Freedman
■ a plaintiff, having failed in an application to comply with a bylaw, was barred from attempting to have that bylaw barred (Las Vegas Strip)
■ a plaintiff failed in a defamation suit, but later was allowed to proceed on a conspiracy to injure by dissenination of information. Res judicata did not apply since not grounded on defamation or conspiracy to commit libel (Gallant)
■ etc.
● Claim vs. Cause of Action
○ Claim used to be narrowly interpreted to mean “one route to liability”
■ so a plaintiff could try and try again with different legal claims.
○ claim not understand to be a series of facts and is coterminus with all the legal theories that might flow from that fact
○ In Canadian law, the modern view was taken up in Cahoon and Franks [1967] SCC where it was held that a plaintiff suing for negligence and breach had only one cause of action, not both a personal injury claima nd a property damage claim.
● Splitting the Cause of Action in Negligence
○ normally all negligence claims arising from the same act must be tried together
■ ie. personal injury and property damage.
○ this may change where the defendant is insured for certain types of damage
■ may have to sue insurer for property damage, but D for personal injury.
● Other approaches
○ could make the general rule be taht the P must join all claims from the same transaction, or be barred, unless there is a satisfactory explanation as to why this wasn’t done.
○ could make the plaintiff who splits his action pay the costs for the second action.
○ could set up a test for res judicata
■ would a reasonably diligent party have been aware of the opportunity to advance the claim or defence?
■ was the claim or defence connected with the earlier litigation?
■ was the claim or defence available in the earlier proceeding?
■ did the court in the first proceeding have jurisdction over the claim or defence asserted in the second proceeding
■ if the answer is yes, should be barred.
● Other typs of adjudciations
○ default judgments may create an estoppel.
● Counterclaims
○ res judicata requiers the D to put forward any and all defences in the first action
○ in the US, D must also counterclaim at that time, or be barred
○ not clear in Canada.
● Requirements for res judicata
○ two actions must involve the same parties or their privies
■ otherwaise, no bite at the cherry
■ exception is for privy
■ other exception is non-mutual issue estoppel.
○ claim now sought to be asserted must have been within the prior court’s jurisdiction
○ Prior adjudication must have been on the merits
■ not estopped by dismissal for procedural reasons not going to the merits of the claim asserted
■ otherwise it would be too harsh on the P’s rights
■ default judgment counts as “on the merits”
■ exception: if the court made no motion on the merits, but this is because P failed to ask for a judgment on the merits, then it will still be barred.
○ Prior decision must have been a final judgment
■ matter has not technically been determined until a final judgment has been made.
■ not clear the effect of a judgment made which is under appeal.
● exceptions to the application of res judicata (both claim and issue estoppel)
○ fraud in the earlier proceedings
○ discovery of fresh evidence that entirely changes the aspect of th ecase which could not have been introducted in the earlier proceedings.
○ both exceptions narrow, and very rarely applied.
Basic Requirements of Issue Estoppel and an Introduction to Non-Mutuality
● Issue estoppel was drawn cautiously from the US and UK experience
● precludes relitigation of issues that a court has decided in a prior suit.
● if an issue has been determined in prior litigation, even if the new litigation involves a different cause of action, issue estoppel will prevent relitigation of the decided issue.
● Three elements
○ parties to both proceedings the same or priviy parties
○ the same issue must be involved in the first and subsequent litigation
○ the issue must have been actually litigated and determined in a final fashion
● mutuality is the most contentious element
○ abandoned in teh US altogether
○ reduces likelyhood of inconsistent adjudication, since issue resolution consistent across cases
○ spares the defendant the cost of relitigating
○ protects against delay and burdens of relitigation.
○ why not abandon?
■ often the defendant will be glad to relitigate- he gets another chance to defend.
■ first determination of issue not always correct, and may be highly contingent on the facts
● maybe highly sympathetic plaintiff.
■ courts may not be cogniscent of the “knock on” effect of ruling a particular way.
● may make a sympathetic ruling without truly considering consequences
■ does not eliminate inconsistent decisions
● may be unfair to D in some cases
● relitigation will occur if P loses first case (P2 can still sue).
● on balance, offensive non-mutual issue estoppel ought to be allowed, due to its effect on judicial efficiency and its reduction (if not elimination) of inconsistent verdicts
○ but must be very careful to ensure that D gets a fair hearing the first time.
○ must be wary of free riders that are waiting to see how P1 fares.
McIlkenny v. Cheif Constable of West Midlands
Issue:
● Denning attempts to bring non-mutual issue estoppel into the UK
Facts
● P were members of the IRA convicted of bombing attack
● argued at trial that they had been beating during their interrogation
○ did not succeed
● now arguing in civil case that they had been beating
○ are they stopped by issue estoppel?
Analysis
● Police want to use issue estoppel- cannot raise again an issue alraedy decided
● Police also want to use abuse of process.
● Denning prefers issue estoppel, since not truly abuse of process- if P can lead their evidence of interrogation, they have a reasonable case.
● ISsue estoppel has 2 doctrines within it
○ privity
■ only people who can take advantage of the estoppel are the parties to the previous proceedings or their privies
○ mutulaity
■ estoppel must go both ways
■ win or lose, each party must be bound.
● These doctrines long been criticized, in the UK and the US
● There are exceptions ot issue estoppel
○ new fact that could not have been reasonably ascertain by due diligence in first proceeding
○ fraud.
● Lorry Driver example
○ lorry ddriver is negligent, crashes
○ passenger 1 proves negligence
○ does passenger 2 ALSO have to prove negligence? Isn’t that a waste?
○ lorry driver and employer ought to be esopped from disputing the issue of negligence in future actions.
● no reason to call this absue of process since it fits so nicely into issue estoppel.
Ratio
● Brings non-mutual issue estoppel into the british law.
● See note, however
Notes on McIlkenney
● Appeal to the House of Lords, which rejected Denning’s approach and used abuse of process instead
○ the case is about the ways the court can prevent abusive use of procedural rules.
○ don’t want to create too many fixed categories which may limit the courts in dealing with abuse
○ no need to expand issue estoppel- this is clearly abuse of process and it ought to have been dealt with in that manner.
○ in English Law, Issue Estoppel is RESTRICTED to times whre there are the same two parties or their privies
○ here there is abuse: the P was launching a collateral attack on a final deciision against the P which had already been made, and where P could have appealed.
● What is at stake as between Abuse of Process and Issue Estoppel?
○ Nowadays, either UK judges nor Canadian judges seem to “believe in” mutuality, but feel bound by the House of lord’s decision.
○ Further, while in the McIlkenny case, the decision to launch a collateral attack may well have been an abuse of process, it also was an attempt to relitigate a decided matter
○ the court muddied the water between issue estoppel on one hand, and abuse of process on the other.
● Further more it turns out the Irishmen were innocent all along!
○ they had their confessions beaten out of them, police fabricated evidence, withheld exculpatory evidence, etc.
○ Throughout the CL there are problems of wrongful convictions.
○ how do we square res judicata with this problem?
■ some say it is aimed not at substantive justie, but at efficiency and fairness- worthy goals.
■ appeal system is aimed at avoiding wrongful convictions
■ but wouldn’t we want every chance to correct these wrongful convictions?
■ tought stuff.
● Free rider
○ 20 plaintiffs sue and lose, next P sues and wins- can the remaining P’s all rely on the lone victorious P?
○ courts in US find that where a P could have easily been joined in the earlier action or where the application of offensive estoppel would be unfair to a D, a TJ should not allow the use of offensive issue estoppel.
● Bomac Construction Ltd. v. Stevenson (1986) SKCA
○ first P succeded in negligence actions and damages against crashed plane company
○ second P brough similar proceeding, wanted D’s defence struck out
○ basically P wants to deny D a second chance to avoid liability, while the D says P ought to have been in the first proceeding at any rate
■ P gets to double-dip: if P1 lost first case, P2 gets second chance; if P1 won first case, P2 will try and rely on it.
■ this can’t be right
○ D must be held to be liable- allowing otherwise would be an abuse of process through the prospect of a multiplicity of actions, inconsistent results, and no end to litigation.
● Mutuality is probably a dead doctrine in Canada although no CA has come out and said it.
● Application of Issue Estoppel to Interlocutory Orders
○ basically since these orders are not final, they won’t create res judicata
■ even though they might involve firm final decisions- like the lack of privilege on a given documents
● Application of Issue Estoppel within a Single Proceeding
○ what about where an issue is decided in one part of proceeding? does this bind the other parts, or can the issue be brought up again?
○ Hopelessly confused.
■ Res judicata applies to interlocutory order unless there is a material chance in circumsntace, and appeal, or new evidence
■ For res judicata to apply, the order must have been final (not interlocuotyr)
■ when an issue is raised and determined in an interlocutory order, neither party will be permitted to relitigate the issue in the same or following proceeding
■ AND SOME OF THESE ARE INCONSISTENT
○ part of the confusion stems from uncertainty as to what is meant by “final” in terms of orders and issues decided within a given proceeding
● The US has created an alternative to address this problem “The Law of the Case”
○ a determination made in an earlier hearing will be treated as correct through all subsequent stages, unless it comes before a higher court.
○ so ‘law-of-the-case’ applies within one proceeding, while res judicata applies across parties.
● Res judicata has implications for the Criminal law as well.
○ SCC divided on whether issue estoppel should even apply to criminal matters
○ nor is it clear whether issue estoppel should operate to deny the relitigation of criminal matters in civil proceedings, cheifly because it is unclear whether there is mutuality.
Demeter v. British Life Insurance Co.
Issue:
● the impact of criminal convictions on civil proceedings
Facts
● P brought 3 more or less identical actions against 3 defendant insurance companies.
● Claim is that all the procedural steps were taken, all the polices duly filed, and so these companies need to pay out
● the Ds say that since P killed his wife, he can’t collect on the insurance company
○ and that its an abuse of procee for the P to be claiming given the fact he was criminally convicted
Analysis
● abuse of process ought to be exercised rarely
○ like McIlkenny- collateral attack on criminal conviction.
○ base of this abuse was the attempt to relitigate a matter already tried.
● here P claims to be using the civil process to place pressure on various people in order to prove his innocence
○ so may not be solely self-interested
● but P has already served 10 years, about to be released on full parole soon
○ unlikely to want to get a new trial, since he might be found guilty of first degree murder
● allowing this to go further would be an “unedifying spectacle” and an abuse of process.
● if the P’s conviction was entered as prima facie evidence of the fact that he killed his wife, tehre is nothing that is likely to upset this finding.
○ it would be an affront to the reasonable person to allow the action to go any further.
Notes on Demeter
● Evidence of a prior convictio nmay be admitted in subsequent civil actions, and the weight to be given is up to the trier of fact (in BC)
● in the US, you cannot relitigate civilly serious crimes, but less serious ones can be.
○ in order for a criminal conviction to preclude a party from relitigating issues determined in the criminal proceeding, the D must have had an adequate opportunity and incentive to obtain a full and fair adjudication in the criminal action.
■ for less erious matters (traffick tickets) D may not have had the opportunity or incentive to fight the ticket.
■ traffic courts are not equitpped to decided civil actions.
■ allowing these traffick convictions to be used as evidenec later would put a huge burden on the traffic courts, as people became more likely to fight.
● Garry Watson argues that where a criminal conviction is obtained, this should be more than a prima -facie piece of evidence (as it is in ONtario).
○ instead, it should bea full issue estoppel preventing relitigation.
■ if the issue estoppel would be fair and efficient, issue estoppel should apply to precldue relitigation.
○ in terms of some traffic court-type scenarios, the evidentiary approach may be better- treat it as prima facie evidence where there was no full and fair opportunity to defend.
○ where there was a full and fair hearing, like a rape comvictin, then the issue estoppel should apply precluding relitigation.
●
(b) Casebook:
Toronto (CITY) v. CUPE Local 79, 2003 SCC
Issue:
● Does the principle of res judicata apply to arbitrators?
Facts
● O was a city employee
○ charged and convicted of sexually assaulting a boy under his supervision
○ he was fired after his conviction, and he greived
● During hearing, city submitteed the Criminal trial testimony and the notes of O’s supervisor
○ O continued to deny the assault
● the arbitrator found that the presumption raised by the criminal conviction had been rebutted and that O had been wrongfully dismissed
Analysis
● Issue estoppel applies to prevent the relitigation of issues previously decided in court in another proceeding
○ must be the same issue as the one decided in the prior decision
○ the prior judicial decision must have been final
○ the parties must have been the same or privies.
■ “mutuality”
● first two requirements met, but the last was not, since in the criminal trial it was the Crown and O, and in the arbitration it was CUPE and the City
● many argue mutlatiy shold be abandoned, as it has been in the US
○ P should not simply be abllowed to relitigate an issue it has already lost just by changing defendants.
○ this is defence use of issue estoppel, and removing mutuality here makes sense
○ but for offensive use, mutuality more sensible
■ P1 wins its case against D, now P2-P20 all get to plead issue estoppel to stop D’s defence.
■ offensiev issue estoppel encourages free riders and for Ps to wait until one of them wins.
■ other problems
● D may have little incentive to defend againt the first action, if the first action is for only a little money
● maybe the procedure used in the second proceeding would have given D an advantage he ddin’t have when the issue was first litgated
● in this case, the City wishes to use the conviction made by the Crown in a different proceeding to which the City is not a party, to preculde O from relitigating an issue he fought and lost in the criminal forum.
● so we will use the doctrine of abuse, since it is pirnicple, efficient, and flexible enough to prevent unfiarness.
○ in a case like this one, the real concern is not mutuality but the intergrity fo the system of justice
○ this will often be the case where the estoppel originates from a criminal finding, where much of the considerations realted to mutuality are not at play.
○ no danger of free riders, sinec victims could not join the R in litigation even if they wanted to.
○ and the prosecutor in the first case does not serve a private interest, but a public interest
● since the main concern here is about protecting the criminal law, tehre is no need to upset the traditional approach to mutuality
● there is also a rule against Collateral Attack
○ bars actions to overturn convictions when those actions take place in the wrong forum
○ a criminal finding is binding and conclusive unless lawfully quashed or set aside on appeal.
■ colalteral attacks are not allowed.
○ if you have a problem with a judicial order, you need to appeal it or let it stand.
○ but in this case, the union is not seeking to ovrturn the conviction, but simply says that for the purposes of a different claim with different legal consequences, the conviction was not correct.
○ so that’s not going to help
● Abuse of process
○ judges have an inherent and residual discretion to prevent an abuse of the court’s process
■ abuse of process occures wehn the proceeding is unfair to the point that it is contrary to the intrest of justice
○ may be established where
■ the proceedings are oppressive or vexatious; and
■ violate the fundmental principles of justice underlying the community’s sense of fair play and decency.
○ the doctrine of abuse of process engages the inherent power of the court to prevent the misues of procedure so as to avoid bringing the administration of justice into disrepute.
■ flexible doctrine without strict rules like issue estoppel
■ can be used where the litigation before the court is being used to relitigate a claim, even if the strict requirements of issue estoppel are not met.
○ based on two policy grounds
■ finality
■ no one should be twice vesed by the same cause
○ unlike issue estoppel, the focus of abuse of process is not the interests of the parties before the court, but the interest of the justice system itself.
● here, it doesn’t matter that O wasn’t motivated to attack the criminal finding per se
○ what is improper is to attempt to impeach a judicial finding by the impermissible route of relitigation in a different forum
■ therefore motive is of no import
● abuse of process may be used no matter which party initiated the relitigation
○ even if the D initiates the relitigation as part of his defence, it is still an abuse of process
● why are we so sceptical of litigation?
○ no reason to believe the reiltigation will reach a more accurate result
○ if the same outcome is reached, the relitigation was a waste of time and money
○ if a different outcome is reached, then there is an inconsistency which undermines the credibility of the whole judicial process.
● relitigation carries serious detrimental effect, barring a few exceptions:
○ when the first proceeding was tainted by fraud or dishonesty
○ when fresh, new evidence, which was previously unavailable, conclusively impeaches the original results
○ when fairness dictates that the original result should not be binding in the new context.
● the various bars on relitigation won’t be used where it creates unfairness
■ stakes in the original proceeding to low to create a robust defence
■ new evidence
■ etc.
● this is true of the criminal justice system as well- the danger of wrongful conviction is very serious
○ the arbitrators decision case aspersions on the validity of the conviction
○ collateral attacks and relitigation are not the appropriate means of address since they waste time and money, while doing nothing to ensure aa more trustworthy outcome.
● here abuse of process wil be used to overturn the arbitrator’s decision
○ it was clear from the arbitrator’s decision that he felt O was wrongfully convicted
■ a decision made wehre the prosecution was not even a party
■ impeached the criminal justice system
■ no reasonable observer could understand how O could be found guilty of sexual assault, spend 15 months in jail, and yet also be found not to have committed that assault and to be deserving of reinstatement.
○ the arbitrator is less well equipped than a criminal court to get to the truth in a criminal issue.
○ the arbitrator was required as a matter of law to give full effect to the conviction.
ratio
● Issue estoppel requires:
○ must be the same issue as the one decided in the prior decision
○ the prior judicial decision must have been final
○ the parties must have been the same or privies.
● the requirement of mutuality is preserved
● the doctrine of collateral attack may be used when a second proceeding is used to attack the validity of the first
● abuse of process may be used to prevent relitigation, even where the requirements of issue estoppel are not met.
○ abuse of process acts to protect the administration of justice rather than the interests of the parties
● must show
○ the proceedings are oppressive or vexatious; and
○ violate the fundmental principles of justice underlying the community’s sense of fair play and decency.
A. Nathanson & G. Cameron, Complex Litigation under BC's new Supreme Court Civil Rules
● new rules in force July 1 2001
● key aim is proportionality
○ aimed at early resolution by settlement where possible, and shorter more focused trials where settlement not possible.
● changes to document production and XW, as well as case plalning procedures to help regulate pre-trial procedures
○ proprotionality will force parties to jsutify discovery and pre-trial procedures.
● Proportionality
○ object of former rules was to secure just, speedy and inexpensive determination of every case on its merits.
■ now they are supposed to be proprotionate to the amount involved, the issus in dispute, and the complexity of the proceedings
■ this is supposed to give judges more auhtority to manage the averserial process
● this mirrors the adoption of new UK civil procedural rules, which were aimed at revamping the old procedures
○ old procedures seen as irrelevant
● proportionality means the acheivement of the right result balanced against the expenditure of the time and money needed to achieve that result.
○ acknowledges the “perfect justice” may be unattainable due ot the costs involved.
○ imposes an oblgiation on counsel to help the jduge reach proportionality
● so every time the court exercises discretion, it should ask whether this exercise promotes the objective of the rules and satisfies the proportionality principle.
● this will require a changein legal culture.
○ must work towards proportionality
○ courts need to accept that justice means more than delivering a judgement on the merits, and includes concerns about time and use of resources
○ prties must be sensible in using these new rules and judgems need to be flexible and resceptive to novel applications, as well as willing to restrain excesses
● important changes
○ Pleadings
■ all actions other than pettitions must be broughby notice of civil claim rather than writ of summongs
● response to claim must be filed in 21 days
● notice of claim contains statement of material facts, releif sought, and a summary of the legal basis for the relief sought
● response requires indiciation fo whether the fact is admitted, denied, or outside the knowledge thereof; the D’s version of facts and any additional material facts; legal basis for the oppostion to the relief
■ aim is succint statement of facts, balancing fiar notice against excessive demands for particularization
■ D no longer able to jsut issuing a general denial, which will hopefully narrow teh issues in dispute
■ but parties must be wary of losing succintness in search for comprehensiveness
■ flacts pleaded now limit scope of document disclosure
○ case planning/management
■ aim is to control the process in order to limit delay and expense
■ each party files plans addressing discovery, dispute resolution, XW, witness lists, trial typ/length, etc.
■ Then judge makes an order
■ this means that parties will be more prepared in advance
■ has the dnager of committing people to litigation since so much must be prepared before the case management hearing.
■ but this in turn may lead to counsel meeting prior to the hearing informally to try and resolve differences
○ discovery
■ used to have a prima facie right to all relevant documents
■ now much narrrower, encompassing all documents that can be used to prove/disprove a material fact _+ documents intended to be led at trial
■ aim is to narrow and target discovery
■ parties must provide a list of documents within 35 days of pleading period
● includes all documents which could be used to prove or disprove a material fact, plus all documents that are intended to be used at trial
● lists all documents over which parties assert a claim of privilege, with enoguh information to guage the claim of privilege
■ fruther disclosure demands are possible
● if a party believes the initial list omits documents that should have been disclosed, a supplemenatary list may be requested
● if the demanding party wants disclosure beyond the intial materiality standard, it may serve a dmenad for speicfic dcouments/class of of documents, with the reason for those documents
○ this may cover any document that refer to any or all matters in question
○ court still has discretion to limit or order the production of documents
■ document discovery is often huge and expensive
■ the changes will only work if the parties buy in, and make sure that ll material documents are listed and disclosed
■ must make sure the materiality standard is followed- overproduction of documents is costly and time consuming
● so this change depends on how well counsel abide by the rules
○ examinations for deiscvoery
■ there are now time limits on discovery
● 7 hours normally, 2 hours fast-track cases
■ may apply for extension, where court can consider the behavior of the witness and counsel, as well as the whether it was possible to compelte discovery in that 7 hours, and the number of other parties and discoveries on the table.
■ this may save a lot of money, but requires the cooperatio nof both counsel since if one is obstructive it could limti the effectiveness of discovery
● hands off apporach critical
○ expert witnesses
■ can be hugely expensive and cause a lot of delay, while deeply impacting on the cases.
■ makes it clears that XW help the court and are not advocate
● XW must certify they understand this
■ reports are filed early and contain specific information
■ XW may only be tendered atr trial if contained in the case planning order
● this will limit the type and quantity of XW, and it must be establsiehd long before trial dureing the case planning hearing
■ cross examination will be easier since the additional report will allow counsel better to prepare
■ joing and court appointed experts were always possible, but focus on proporitonailtiy may increase their use
● it is always goign to be hard to get counel to agree on facts that a joint XW may form an opinion on.
○ fast track litigation
■ new procedure for fast track litigation, which only applies where 100K or less or cases where the trial can be compelted in under 3 days
● allows quick and inexpensive resolution of relatively simple action
● proprotionality clear here
■ case planning procedure manadatory before party can file a notice of application to fast track
○ transitional provisions
■ there are rules bridging the gap, not relevant to this course.
● how have the changes been going in practice?
○ proprotinality
■ courts rarely refeerncing this principle
■ same tests being used as before.
■ a few caes where proportinality used, but not many
○ discovery of documents
■ courts are using the standard of materiality rather than relevance
■ but sometimes messing it up
● implications
○ proprotionality principle should have salutary effects in cases where there is a disparity of size, resources and information
■ big parties will be less able to put their weight on smaller parties
■ test for limiting pre-trial procedures is not abusiveness but proportionality
■ but proporitinality depends on the nature of the case, not the nature of the party, so the impecunious do not automatically benefit
○ use of pre-trial proceudres may be more strictly controlled, since they may have to be jsutified.
○ case planning rules may well affect complex litigation, but it is not normally mandatory, but it can be ordered by the court
■ they contrbute to certainity, aid planning, budgeting and risk assemsnet, they promote coordination with parallel or other proecedings, adn avoid duplicative disvoery and other pre-trial procedures
■ they also make an early case assessment essential, which may encourage settlement and is good practice at any rate
■ however it does mean greater front loading of costs, since parties must make decisions about the course of litigation with limited information
■ may have to take steps they wouldn’t if they had a better sense of the outcome of the case.
|Complex Litigation Part II |
1. Topics:
Standing
● who is allowed to be invovled in the law suit?
● normally,a person must be directly affected or itnerested in order to get standing
● but it may be possible to get public interest standing even in the absence of direct affect
● traditional view
○ binary adversial private law rule was that standing was reserve to people who were privalely harmed
○ if you could not show a private harm distinct from that of other people, the court would consider you a busy body and deny standing
○ and you couldn’t sue on behalf fo someone else.
● public interest standing allows individuals to sue on behalf of hte public interest
Test for Public Interest Standing
● Discretionary test with three parts
○ must be a serious issue with respect to the validity of the legislation or the government act
○ the applicant must be directly impacted or have a genuine interest in the outcome
○ there must not be any other reasonable or effective way to bring the issue of validity before the court.
● both this and intervention is aimed at creating legal black holes, where there is a right but there is no party that can enforce them
Justiciability
● related to standing
● the court will refuse to answer questions where they are
○ political in nature
○ moot
■ the law has already changed
○ academic
■ there are no facts underlying the claim
● we don’t want the courts taking over the role of parliament.
Intervention
● a party may be granted leave to intervene with limited rights
● Test
○ do you have a direct interest in the proceedings?
○ Can you make a useful contribution that is different from the parties?
■ typically where the public interest group may make a contribution
● there is normally no right to intervene, unless you have a direct interest, in which case you’d seek to be added as a party
● intervenors do not normally bring evidence or get costs
● invervenors are more common as you move up the appellate system
● common in terms of charter litigation and public interest cases
● there are some concerns however
○ the intervenor risks taking the proceeding away from the parties
○ we don’t want the intervenor to bring facts, to add or change the records
○ the interventor may lead to additional costs
Joinder of claims and parties
● concerned with adding parties and seperating parties
● test is aimed at justice and covenience
○ you will be allowed to add a party unless it is palin and obviosu tht there is no cause of action
● important to remember this.
● trying relating parties in seperate proceedings risks causing relitigation, inconsitent verdicts
● parties may be joined in the original notice of civil claim, alledging multiple Ds or multiple causes of action, or may be added later by ammendment
● the trend is towards consolidation and joinder, but sometimes this is neither efficient nor fair, so you may apply to have a party severed.
● the decision to allow joinder is discretionary
Compulsory Joinder
● quite rare, but sometimes the court will say that if you don’t join A to your action, you will be estopped from proceeding against them later
○ basically a branch of res judicata
● you must bring all your claims at once against all the relevant parties.
Third-party proceedings
● two kinds
○ contribution/indeminty
■ the relief sought between D1 and D2 is connected to the relief sought by P against D1
○ general joinder device
■ the issue between D1 and D2 is connected to the issue between D1 and P
● indemnity
○ basically insurance
○ aimed at making the person whole
○ may be deemed at law or exist as a result of contract
■ eg. agents have indemnity as against the principal, and vice versa
○ indemintty may come up in negligence
■ P sues D1 for negligence, D1 found liable. D1 may sue D2 for indemnity
■ D1 is negligent for crashing into P, but D2 is negligent for fucking up the surgery
● D1 can sue D2
● negligence act
○ contributory negligence used to be a full defence, even if they were only a little at fault
■ but now liabilty can be portioned out
○ negligence act puts the risk of non-recovery on whatever defendant P ends up suing (jointly and severally liable)
○ if D1 thinks D2 is also libable, its up to D1 to sue D2 in a third party proceeding
Class Actions
● aim of class actions is fairness and efficiency, just like joiner
● class actiosn used to originate through common law, but now we have the Class Proceeding Act
● Policy goals
○ improved access to justice
○ improved judicial efficiency
○ behavioral modficatin/deterence
● Process
○ file a notice of civil claim
○ find a representative plaintiff
■ member of the class who provides an affadavit
○ then cerftiication application
■ not really about merits or eventual outcomes, its about the most effective way of trying the issue
■ certification often makes or breaks the case, since once certification occurs D has the risk of a very large judgment
■ plus if no certification occurs, usually the sums are so small that no individual plaintiff would take them.
○ certification focuses on finding common issues
■ we want to try all the common issues at the same time
● not all the issues in the individual cases must be settled as a class, but there msut be some ommonality
○ if class certified, must notice the class members by a means to be determined by the court
■ class members have a period in which they can opt out and the judgment will not apply to them
○ then discovery occurs
● settlement very common, and there is a lot of worry that the settlements are driven by the lawyers rather than the plaitnffs
○ typically the lawyers get a big fee while the individual clients get very little each
○ so courts supervise to a large degree.
Class Actions Key Requirements
● Rule 4-1 Commonality
○ must certify as class if these requriements are met
■ the pleadings disclose a cause of action
■ there is an identifiable class
■ the claims of class members discose common issues
■ the class proceeding is the preferable process
■ there is a representative plaintiff
○ factors for preferable process
■ laid out in 4-2
■ do the common questions predominate over the individual questions
■ do significnat members of the class have an interest in controlling the litigation on an individual basis
■ would it create greater difficult than if the results were sought through other means
2. Readings:
(a) Walker, pp. 309-316, 381-397, 402-454, 461-470, 865-874
Joinder of Claims: introduction
● Joinder are the rules governing which claims and parties may be included or joined togethr in a single proceeding
● society better off with fewer suits rather than more
○ cheaper for the paries and court system
○ taks less time, trouble, and money
○ risk of inconsistent verdicts
● not an unlimited right
○ courts do have broad discretion to refuse joinder
○ courts have residual right to refuse joinder if it would lead to inconvenience or injustice
● Bigger issue tends to be the maximum size of the ligiation
○ how big can the P make the proeceding
○ rules tend to be liberal
● Smaller issue is minimum size of proceeding
○ the issue of compulsory joinder
○ can compel P to join multiple parties and to assert multiple claims
● Permissive joinder is the circumstances where a P can join several claims in a single proeceding.
Stevens v. Sun Life Assurance Co. of Canada, 2004 BCSC 468
Issue:
● when can P join several claims into a single proceeding?
Facts:
● P got benefits from D, insurer SL terminated benefits
● P claims breach, bad faith
● D has several defences, counterclaiming for over payment
● D wants the issues of breach and bad faith severed and dealt with separately.
○ D says this should happen because in order to judge on the basis of bad faith, its solicitor-client privilege will have to be set a side in the process of discovery
○ D says the two actions are distinct, and that it is just and convenient to dispose of them seperately.
● P says he’s entitled to one trial, there is a possibility of inconsistent verdicts on the issues, and the courts hould only deny joinder in very rare circumstances.
Analysis
● TJ looks at a prior case where breach and damages were tried seperately to avoid running into issues of privilege
● Similar problem applies here
● the test in BC is not limited to exceptional circumstances, but wherever joinder may complicate proceedings
Ratio
● an action may be severed where joint trial may unduly complicate, and particularly where trying the issues tgether may run up against issues of privilege.
Notes on Stevens v. Sun Life Assurance
● In rare cases, the D can show that joining claim B with claim A will prejudice the D in defence of claim B.
● under the rules, the P may join any number of claims against the same defendant, subject to the power of the court to keep seperate actions apart if it would not be convenient to dispose of them together
○ basically trying to avoid prejudice to D caused by joinder, versus voiding putting P to the expense of seperate proceedings.
○ typically results in seperate trials, not the exclusion of claims.
Compulsory Joinder
● the law relating to res judicata has the practical effect of requiring the P to joinn, in one action, all potential claims arising out a single factual scenario
● but the court will not actually force the P to bring any particular claim.
W.A. Bogart, “Developments in the Canadian Law of Standing” (1984)
● Basic Canadian rules adopted from England
● Public rights- where individuals attempt to get redress for wrongs which affected many people but no one in particular
● basic rule was that the AG would have to enforce
○ either by himself or by permitting a private party or public authority to bring an action in the name of the AG
● however, if the individual can show private harm from the public nuisane which is different in kind from the experience of other individuals, then he can sue “special damages”
● exceptions
○ where city makes expenditures that are ultra vires
○ statutory special damages
■ law authorizing a body, class, or specific individuals to maintain suits without proof of special damages and without permission from the AG.
■ eg
● professional bodies can take action when the governing statute is being infringed
● municipalities can obtain an injunction to restrian a breach of by law
● consumer interes acts and other similar statutes may grant broad standing for individuals to apply to court where the act is violated.
○ typically courts are more receptive to individuals standing when review of administrative action is sought.
● not the only kind of “gate keeping” undertaken by the courts to control who can take actions
○ justiciabiliy
■ some matters not approrpiate to judicial review
■ hypotheical/academic/abstract questions of law
■ mootness/ripeness
■ some disputes intended to be resolved by political means, not the courts.
L. Sossin, “Boundaries of Judicial Review: The Law of Justiciability in Canada”
● standing determines who can bring a proceeding to a court
● parties directly affected by an action or law are generally entitled to standing
● but the issue must be justiciable.
○ often comes up in public interest litigation
● justiciability is about the proper role of the courts and their constitutional relationship to the other branches of government.
● pubilc interest litigatiors must show
○ a justiciable and serious issue as to the validity of the Act
○ the applicant must be directly affected by the act or have a genuine interest in its validity
○ there must be no other reasonable and effective way to bring the Act’s validity before the court.
● concern is about wasting limited judicial resources and screening out the mere busybody
○ want to avoid trying issues without a proper adversary
○ want to make sure the courts are not trying isuses that are not properly up to then.
● justiciability often subsumed in the “serious issue” criterion.
○ this conflates whether an issue CAN be tried with whether it is sufficiently important that it SHOULD be tried.
● So the test for public interest standing should actually have 4 steps
○ is the matter justiciable?
○ is the matter seroius?
○ is the person directly affected or genuinely interested in the litigation?
○ is there an alternative means of challenging the validity of the Act or the action at issue?
● May be that public interest litigation is entering a cooling period where courts are less felxible with respect to standing.
○ justiciability plays a role here.
● should also be careful where tehre is little actual evidence, since courts are wary of ruling without sufficient evidence
● so the analysis of jusiticiability and standing are related but distinct inquires into the efficacy of devoting judicial resources to a paritcular dispute or issue
○ typically justifiability will be the first part of the test, while considering whether there is a serious issue before the court
○ concerns over ripeness, mootness, and the political nature of the issue all may constitute grounds for denying standing.
Notes on Public Interest Litigation
● several recent SCC have involved public interest standing, and in each case the SCC has upheld the P’s entitlement to sue.
● Thorson
○ challenge of official language act
○ greatly opened up public interest litigation
○ standing was granted because there was no person paritcularly aggreived, so if it was going to be challenged someone had to do it.
○ basically this was the only one who could do it.
● Borowski
○ guy was suing because he didn’t like that Drs. who permored abortions for certain reasons could not be held criminally liable
○ the act imposed benefits, not duties, so it was hard to see who specifically would sue.
■ no distinctly aggreived class
■ Drs performing aboriton wouldn’t use it (obvs), other Drs would have no reason to complain, etc.
○ the act did have an impact on the unborn fetus, but that can’t be party to the law suit
○ so it must be interest by a concerend public citizen.
○ P was a concerned citizen
○ basic rule is that if the P can show a serious issues as to the validity of the law, P must show diffect affect or genuine interest, and that there is no other reasonable or effective manner to bring the issue to the court.
● this has been expanded under Finlay v Canada to allow chalenges to administrative action
○ challenged transfer payments from the Fed to the Manitoba government, since he claimed the Manitoba welfare legislation did not comply with the plan’s requirement.
○ court confirmed that public interest standing could be applied discretionaryily where challenge is made to administrative action.
Canadian Council of Churches v. The Queen [1992] 1 SCR 236
Issue:
● Did the Council have standing to challenge the Immigration act whose procedures had changes with respect to refugees?
● what counts as “reaosnable and effective alternatives”?
Facts
● P represetns churches that support refuggees
● Act changed ot make it more difficult to claim refugee basis
● Council claims these are invalid, AG says Council lacks standing.
Analysis
● Courts deal mainily with inidviduals which makes it easy to make clear rulings on established facts
○ this is how courts created rule of law and allowed for peaceful dispute resolution
● Courts need to be careful not to be overextended
● regulation necessary part of modern society
● increase of state activity means that government activity must be reviewable by the court.
● Thorson test
○ serious issue
○ direct affact/genuine interest
○ no other reasonable and affective way to bring actio to the court
● Charter entrenched judicail review and ensures the public right that the government act according ot hte law
○ this principle of rule of law is a corner stone of democratic government.
○ courts need to ensure Parliament and executive stay within the bounds of the constitution and the Charter.
● Finlay established that the courts have the discretion to grant stanidng to challenge administrative actions.
● aim of conserving judicial resources accomplished by limiting standing to situations where no directly affected individual might be expected to initate litigation
● while we recognize the need to allow public interest standing in some cases, this does not mean it is appropriate in every case.
○ need to strike balance between access to judicial review and preseving judicial resources
○ don’t want the courts to be flooded by redundant, marginal, etc suits brought by well-meaning public interest groups.
● so the granting of public interest standing is not required when, on a balance of probabitiles, it can be shown that the measure will be subject to attack by a private litigant.
● Test
○ Serious Issue of Invalidity
■ some of the allegations made here are highly hypothetical
■ submissions more typical of subsmissions that might be made to a parliamentary committee
■ still, some parts of it may raise a serious issue as to validity
○ Genuine Interest
■ Clearly the P has a high reputation and a real and continuing interest in the problems of the refugees and immigrants
○ Another reasonable and Effective Way to Bring the Issue Before the Court
■ all of the refugee claimants have a direct standing to initate a constitutional challenge.
■ and, in fact, many reguees have appealed adminsitrative decisions which affected them.
■ danger of rapid deportation orders not realisitc, since the federal court has the power to grant injunctive relief against removal orders.
■ and there is no general practice of speedy removal, it typically taking many months to sort out these claims
■ and even where issued, the deportations are rarely carried out.
■ since directly affected individuals have challenged the legislation, there is no need for the P to do so.
● no danger of the government being insulated from challenge.
○ SO NO DEAL CHURCHES YER OUT OF LUCK
● Intervenor Status
○ this is a sensible alternative if the P wants to be involved
○ it can share its perspective, but the court will still have a background of established facts, context, and a time-frame that can be controlled by the courts.
Ratio
● where a directly affected party can (and especially has) challenge the order, then no public interest standing will be granted.
● the danger is the government being insulated from review, which is not the case where a directly affected individual can sue him/her self.
Notes on Council of Churches
● Below is all Ontario Law Reform.
● a broad way of looking at standing is that the Court is effectively deciding which claims or interests, advoccated by a particular P, should be recognized as worthy of protection
● courts should recognize a broad array of interests, and should be senstiive to the existence of ranges of values within society that may change over time.
○ courts should be wary of strict rules that encourage the court to live in a normative vacuum.
● no single factor or element should invariable lead to the grant or denial of standing in any particular case.
● by granting standing a court indicates that it is prepared to place a certain value on an interest and to protect it by allowing it to be the subject of litigation
● so standing and cause of action ought to be linked
○ Does the P have a claim worthy of being tried?
○ both standing and cause of action are about the court announcing which values it will enhance and protect
● so the goal ought to be integration and assmiliation of cuase of action and standing.
● and when a Defendant is challenging standing, we should understand this as Challenging the P’s cause of action
Canadian Bar Association v. British Columbia
Issue:
● Can the failure to provide legal aid constitute a cause of action such that the CBA can get standing?
● What constitutes a “serious issues”?
Facts
● CBA suing due to lack of civil legal aid in BC
○ people of low income lack means to get advice and redress, even where fundemental issues at stake
○ Canada and BC are liable to provide legal aid to the ppor, according to CBA
○ CBA says current legal aid insufficient
○ attacks an act passed in BC limiting the proviison for BC Civil Legal aid.
○ Claims unwritten principle requires access to justice and legal advice.
○ wants to use inherent jurisdiction for remedies.
■ want court to declare BC/Canada must craft better system
● BC says no standing
Analysis
● P is a national bar organization which has long advocated in favour of legal aid funding.
● Thorson- pubnlic intrest standating test
○ constiutionality of legislation always justiciable.
○ want to avoid situation where no means of testing legislation since AG refuses to challenge.
○ test:
■ serious issues as to invalidity of legsilation
■ P directly affected or genuine interest
■ no other reasonable or effective way of bringin to court
● No serious issue as to the validity of the act
○ CBA not precisely challenging act, but rather the whole legal aid regime
○ wants a sweeping review of the whole program for compliance with unwritten principles.
■ this is a really big cahnge-courts prefer to move incrememntally
○ generally speaking, matters of public expenditure and other administrative action can only be challenged on the basis of being ultra vires
■ challenge here not jurisdictional
■ challenge here is aimed at the failure of legislature to make a certain policy which CBA alledges conforms with unwritten principles.
■ finding for CBA would require the court to define a constitutionally valid civil legal aid scheme and order its provision by the defendants.
○ challenge here doesn’t challenge specific act or decision, but rather a whole raft of funding, content, administation, operation and public policy decisions.
○ this is a serious issue, but tnot the kind of issue that can be tried in the SCC.
● D says besides, tehre is no remedy the court has that can address the CBA’s claim.
○ standing requires the right to seek particular relief.
○ 24(1) requires an infringement or denial of a Charter-based right.
○ CBA here is asking the court to craft a new policy that would accord with the unwritten principles out of whol clothe.
○ but CBA has no standing to assert a claim on behalf of an amorphous group of individuals whose Charter rights mya have been, or in the future may be, breached by the non-operation of a public program.
● since first branch of test failed, no standing
● Looks at genuine interest anyways.
● No other reasonable or effective way to bring to court
○ we would prefer to hear from those parties most directly affected
○ wherever there are reasonable and effective way for first-parties to bring the issue to trial, there will be no need for public-interest litigants
○ individual poor people could have brought this action forward
○ CBA chose to make “systemic claim” for stregic reasons.
Ratio
● whether there is a serious issue doesn’t mean whether or not the issue is important; it means whether there is an issue with an available remedy and a legitimate cause of action
● Wherever an individual party could bring the action to trial, this will be preferred and public-interest standing denied, even if that means the action will have to be tried somewhat differently
● once again, court reluctant to turn to unwritten principles.
● the remdy sought by the CBA was unjusticiable - it was a wholesale recreation of the legal aid regime.
Notes on CBA
● Sossin argues the court in CBA failed to adquately consider Charter principles, including the principle of access to justice
○ further, the distinction betweed individual and systemic litigation is silly.
● BCCA upheld the CBA decision
○ but says you have to consider whether there is a cause of action before standing
■ if no reasonable cause of action, no standing.
○ here since no cause of action, issue of standing doesn’t come up.
● Christie Case
○ BCCA reflected on Christie in deciding CBA
○ finds that Christie rules out broad-based systemic claims to greater legal services based on unwritten principles
○ no general right to legal counsel as an aspect of, or precondition to, the rule of law.
○ right to counsel may be recognized in a few specific situations, but there is no general constitutional entitelment to counsel before all courts and tribunals
Joinder of Multiple Parties
● simplest kind of lawsuit is one plaintiff against one D, but most lawsuits are more complex
○ may be multiple parties added
○ D may counterclaim, cross-claim, or make a third-party claim.
● typically one lawsuit viewed as better than several
○ trial in a single action of all matters in dispute takes less time, trouble, and money
○ also want to avoid inconsistent predicts.
● but court has broad discretion to refuse joinder where it would be inconvenient or unjust.
Multiple Pliantiffs
● where D owes an obligatoin to numerous plaintiffs- all parties to the same contract
● or D owes parties similar liability as a result of negligence- consider bus crash.
Iovate Health Sciences Inc. v. NxCare Inc. 2007 CarswellOnt 7459 (SCJ)
Facts
● I and N are competitors making neutritional supplements
● I researcehd new product
● I says W stole the idea, and rushed a product into the market first.
● I wants to add a bunch of related companies as co-plaintiffs
○ I says it would result in no prejudice to N that could not be addressed via costs/adjournment
○ new P’s have a cause of action
■ similar questions of law and arise from same set of facts.
● N asys these new parties are passed the 2-year limitation period
○ I says it did not learn until late enough that the period would not have elapsed.
○ plus I says it didn’t know about the conspiracy until later at any rate.
○ and it wasn’t aware of the lost sale and loss market advantage until later, both of which are necfessary parts of the conspiracy
● I says this is also an appropirate case for the court to expercise discretion and allow the other parties in notwithstanding the limitation period
● adding new parties would not cause prejudice that would not be addressed by cost
○ no added complexity since no new claims or new remedies
● accepts I’s argument that it may have remained unwaware of the damage from conspiracy.
○ the essential eleemnt of damage or harm would have to have been suffered in realtion to both breach of confidence and conspiracy before those causes of action can be properly raised.
Ratio
● if adding new parties will not cause prejudice that cannot otherwise be remedied, they will probably be allowed in
● limitations period for conspiracy only kicks in once the harm and damage has occured and the P is made aware of that.
Multiple Defendants
● P may also join multiple Ds in a single lawsuit
Garry D. Watson, “Joinder of Defendants Sued in the Alternative: Solicitors as Co-Defendants” (1981)
● Joiner of multiple Ds allowed for 2 reasons:
○ economy
■ avoids muliticiplity
■ requiring P to sue each D individually invites additional costs and court time
○ justice
■ avoiding inconsistent determination
● Justice is the more important aim
○ but we tend to focus on economy, perhaps because it is more obvious.
Brown v. Mendis
Facts
● P suing M
● P was referred to M as an expert, misdiagnosed P
● M says he had referred P onto a further expert, DP
○ M says it was DP misdiagnosis, not M
● DP says period of limitation is up
Analysis
● the issue of whether the period of limitation has elapsed is very much live, so not going to be disposed of in a pre-trial motion.
● generally where there are special circumstances and a lack of prejudice, the court may add new Ds even after the period of limitation
○ basically if the period is up, must show lack of prejudice and a special circumstance justifying the wait.
○ prejudice is presumed- P must upset this presumption.
● While DP says he’s lost all of his notes, etc the period of time which counts w/r/t prejudice is the period before the end of the limitation period and the application of joinder
○ here nothing new would have been added during that period such that it would cause new prejudice to DP.
● Plus, there is no indication that P is acting in bad faith.
● the delay is because M did not disclose existence of DP.
Ratio
● even if the period of limitation is up, the court may allow joinder where tehre is no prejudice, and where there are special circumstances
○ prejudice is going to be presumed and its up to the P to upset that presumption.
Notes to Brown
● adding Ds after the lapse of limitation period is rare and very difficult
● parties need to be careful in adding too many people to the action due to the high potential for costs.
● Since only parties to the action face oral discovery, a P may add a D simmply to get the right of discovery.
○ example: sue the employer, and the employee personally
■ get the employee in so you can get dsicovery
○ but you can’t do this ONLY for that purppose
■ there must still bea reasonable cause of action.
Compulsory Joinder
● how few P’s must be involved.
● normally up to the P to decide who will be in the party
● but sometimes tehre are people who are necessarily part of the action
● the absence of P2 may prejudice D in two ways
○ multiple possible suits
○ possible injustice since P2 not necessarily bound by cause 1
● however rarely is this banned
○ eg. family in car wreck, each member of the family can bring suit seperately, even though the issues are the same and they will likely share damages.
● so courts will be alive but not bound to this kind of prejudice
Swearengen v. Bowater Canadian Forest Products Inc. (2007) Ont SCJ
Issue
● when can D have a P2 added through compulsory joinder
Facts
● P sued D, MNR,and the AG
● but then discontinued against AG and MNR
● D says including MNR is necessary to give the Court the ability to adjudicate effectively
● MNR says compulsory joinder ought to be avoided unless absoltuely nencessary
○ not a good way of gathering evidence and producing a factual record
○ P can use various rules of civil procedure to get at the requisitie evidence.
○ plus, D can anlayws bring a third-party claim against MNR, which D has chosen not to do.
● D says MNR is enmeshed in the regulation and supervision of all the rights and obligations of both parites, and is necessarily included in order to resolve the issues in the claim.
Analysis
● normally it us up to P to decide who it will sue.
● however occasionally there are parties whose presence before the court is necessary to resolve the issues and can thus be joined.
● ojectives
○ resolve the issues finally and completely
○ to protect against inconsistent judgments in the future
○ to assure that the particial out-of-court situation of the third-parties would not be adversely affected by the result of the judgment.
● here, adding MNR would not lead to a single, finally judgment, since MNR as a government entity would require a non-jury trial, and this is a jury trial.
● P does not want to sue MNR, and suing MNR will be to the prejudice of MNR in terms of time and costs, as will the P
● plus if MNR is compulsorily added as a D, it risks having costs awarded against it.
● D needs to look to other procedures in order to get MNRs involvement
Ratio
● there is a narrow exception which allows the compulsory joinder of parties
○ aim is to resolve issues in one sitting (primary)
○ to avoid inconsistent judgments and to ensure that third-parties are not harmed (secondary)
● prejudice may defeat cumplosry joinder.
Notes on Swearengen
● Defendant can always add D’s as third-party claim
○ but why should it always be up to D?
○ can lead to cost awards against D, and compulsory joinder has a long and well-established history.
Addition of Claims and Parties by the Defendant: Introduction
● Three ways for D to expand litigation
○ counterclaims- claims against the P
○ cross-claims- claims against other co-defendants
○ third-party proceedings- claims against third parties not yet in the litgation
Counterclaims
● When D claims against P, resolved in same action to save money, time.
● D can now assert any claim against hte P by counterclaim, subject only to the power of the court to exclude the D’s claim where it cannot conveniently be dealt with in the P’s action
Lid Brokerage & Realty Co. v. Budd [1992] Sask QB
Issues
● when can a D counter-claim against the P?
Facts
● SP is counterclaiming against P and cross-claiming against D1-D7
● basically saying that P and other Ds conspiring against SP
● SP says dealing with the conspiracy will save time, avoid multiciplicty of proceedings, and arises out of the same set of circumstances
● P says that SP’s claim is unrealted to the lawsuit, and deals with D1-D7 who are not party to the present lawsuit.
Analysis
● while there are some differences between the claims, there is a connection between the subject matter in the main action and the counterclaim
● it is the previous employment relationship of the primary parties and the alleged injury to the respective compeiting produce brokerage business in which all the parties are involved, directly or indirectly.
● P also says SP is just using this as a stalling tactic, and that SP has been using other techniques to the same point
● they ask the court to strike out the counterclaim on the basis that it may unduly complicate or delay the trial of the main action.
○ but the issue can’t be only looked at from the persepctive of the main action.
○ no one stands to gain if these leads to a whole nother seperate action
● Rules ought to be read as encouraging and enabling the speedy resolution of all the issues in contention between the present parties.
○ big advantages to settling stuff all in one hearing.
● Ought to apply these rules to mitigate the delay and the prejudice towards the defendantin-counter-claim.
○ so any delay to P here can be remedied in this fahsion by way of costs or a time schedule
○ since had SP brough counterclaim at an earlier time, no delay would have resulted, then the P will be awarded costs for this time differential.
Ratio
● counterclaim will be allowed even if it will result in delay in the main action, because we must look at the issue from both directions
○ it will cause even more delay in the long run if the counterclaim must be dealt with at a later date.
○ however costs can be awarded to remedy any lost time, and the court can set up a schedule and so on.
Notes on Lid Brokerage
● Rules permit a defenddant to expand the size of litigation by joining other persons as defendants to the coutner claim.
○ historically limited to situations where the relief claimed related to or was connected with the original subject of the P’s claims.
○ modern rules abolished this limit, so that counterclaims may be unrelated to the P’s claim and it may bring in a new party altogether
○ but court can still limit this where the counterclaim may unduly complicate or delay the trial of the main action, or where it may cuase undue prejudice.
● Damages may be set off- If P wins for 100, and D wins for 50, D simply pays 40.
○ may be exceptions, see where an insurance subrogation is going on.
Lee v. Globe and Mail (2002) Ont. SCJ
Issue:
● How do courts deal with it when D is counterclaiming for abuse of process as against the main action?
Facts
● P is former PM of Singapore
○ suing Globe and Mail for libel in an article.
○ also suing an inteviewee, N, personally
● N countering with damages for abuse of process.
○ P says a counterclaim for abuse of process must be struck on its face for no reasonable cause or action.
● N and P have a long and troubeld history
○ basically they helped build Singapore together, then had a falling out based on rumors of N’s debauched behavior, which N denies
○ interview in G&M aired some of this dirty laundry
○ N says P is in the habit of silencing critics via defamation suits.
Analysis
● test for striking is whether it is plain and obvious that the counterclaim discloses no reasonable cause of action.
○ as long as there is a chance the counterclaimant could succeed, the counterclaimant should not be drive from the judgment seat.
● tort of abuse of process has two elements
○ the P must be using the court process for a collateral and improper purpose
○ the P must have made an overt and definite act or threat, other than the action itself, in furtherance of the improper purpose.
● use of defamation to silence critics is not a collateral or improper purpose, since this is a result which naturally follows from defamation and is a legitimate purpose.
● N says the use of defamation to silence all possible critics of P is the collatearl purpose.
○ N says there is a pattern of using hte libel process to silence critics and this is the collateral purpose
○ this is clearly not a scandalous, frivolous, or vexatious cuase.
● So N has at least a triable case on step one of the test- court process used for a collateral and improper purpose.
● further, the fact that P is suing N in Canada while P doesn’t live here or have any connection here suggests that there is an ulterior purpose here
○ P doesn’t care about his reputation in Canada, just wants to silence N.
● N says that in the past, P has taken various steps to threaten N
○ this very suit is a threat against N seeking to silence him.
○ for N, the threat of revenge from P is on-going and pervasive
● in this unusual case, N has at least a triable counterclaim.
Ratio
● in order to strke counterclaim, must be plain and obvious that there is no cause of action
● in order to counterclaim with abuse of process, must show:
○ the P is using the court process for a collateral and improper purpose
○ the P must have made an overt and definite act or threat, other than the suit tself, in furtherance of the improper purpose.
Garry Watson and Tim Pinos “A Note on Counterclaims and Set-Off” (2004)
● historically the D could not assert in the same claim an action against the P if that action was a difference cause
○ only mutual debts could be paid off
○ D coul not set off a debt that was incurred by the P after the issue of the writ in the action
○ if the amount of D’s debt was less than that due by the P, the excess was not recoverable.
○ D could not make a claim that sounded in damages- D could only claim the debt
○ set-off was used as a Defence- where P sues D for debt, D could use the defence of set-off.
● nowadays a D may assert any counterclaim against a P, whatever the nature of the claim and when it arose, and regardless of whether it arose out of the same set of facts.
○ D can also bring in third-parites who are a party to the coutnerclaim.
● Curiously, set-off is still laregely subject to the same restrictions that applied before the counterclaim was devised.
○ and there is now equitable set-off
■ this is available whether or not the cross-obligations are mutual debts, or even debts at all
■ can be used where it would binequitable to allow one party to proceed without taking the other into account
■ as long as the opposing claims flow from the same transaction or relationship between the parties or are otherwise closely conected
● SO anyways, D can sue the P in counterclaim or set-off.
○ if suing in set-off, one judgment
■ if the amount claim in the set-off is equal to the amount claimed by P, bthey cancel out, and P’s action is dismissed
■ if the amount claimed in the set-off is less, then P will be owed the difference
■ if the amount claimed is more, then P will take and D ill lose the balance.
● this principle has been overruled by statute, but NOT for equitable set-off
○ if suing in counterclaim, two judgments
■ one against the P, one against the D (the P in counterclaim)
■ typically one judgment setoff against the others.
● Two pracitical consequences
○ set-off puts everything into one judgment, so potentially costs will be less.
■ counterclaim may lead to more costs, particularly when there are a number of counterclaims
○ limitations periods are different
■ generally with respect to counterclaims, a party cannot raise a counterclaim where barred by limitation period when the counterclaim is first raised.
● although some statutes introduce exceptions which allow the counterclaim to be brough as long as the main action was brought within the limitation period.
■ Set-off
● some provinces behave the same as counter-claim.
● if no statute
○ legal-set off
■ a statute barred debt cannot form the basis for set-off
○ equitable set-off
■ not so barred by statute
Third-Party Claims
● if D believes he has a claim against someone other than P which relates to issues which exist between D and P, the D may bring in a third party by way of “third-party proceedings”.
○ may be because D believes he has a right of contribution or indemnity against the third party
○ then if D loses he will have the right to get compensation from the third party
● while D may bring third-parties in that are not insurers, contributors and indemnitors are still commonly the subject of third-party proceedings.
○ other common relationships:
■ agent may bring in principal (indemnity)
■ guarantor by the principal debtor (indeminty_
■ right of contribution is implied into relationships like partners, trustees, guarantors, and joint-debtors
● Indemnity means that the third party must pay all of P’s damages in the event that D loses
● Conitrbutor means that the third party must pay part of P’s damages in the event that D loses
● But in omst jurisdictions, not limited to situations involving claim for contribution or indeminty
● The decision reached by the court on the issues between the P and the D binds the third party
○ this makes sense, since the third-party gets to paritcipate in the action
○ so 3P may have incentive to help defend the D, since if D loses, so does 3P
○ 3P may raise any defence open to the D, including defenecs not actually raised by the D, or those that contradict the defences raised by the D
● Negligence acts have a big impact on joinder and third-party claims
○ does away with contributory negligence as a complete defence
■ historically if P was even a little bit at fault, D had a complete defence.
■ now contributory negligence merely reduces damages pro rata.
○ makes all concurrent tortfeasors jointly and severally liable for P’s injury
■ the P will be given judgment against all parties for the full amount
■ P can only extract damages once, but cna do so from however.
■ P can choose the solvent debtor over the insolvent debtor, for example
■ so purt the risk of insolvency onto the Ds rather than the P
○ can be compared to the US “comparative negligence” regime where each D is liable only for his or her pro rata share.
○ gives an incentive to join extra Ds, because they may have deep pockets
● Where D1 brings 3P, claiing that 3P is the only one at fault, P will want to ammend notice of claim to include 3P, since if 3P found wholly liable and P doesn’t claim against him, then the claim will fail.
Daniel Industries Inc. v. Alberta Energy Co.
Issue:
Facts:
● P contracted D to supply valves for pipevalves.
● P contracted 3P to design installation and to supervise
● valves start blowing up, eventually all replaced
● P sued D alone, not 3P
● D sued 3P as a third-party
● P wants the 3P claim stayed or struck.
Analysis
● P says it should be struck on a rule
○ rule forbids a thirdparty notice which is based solely on facts that if proved would give the D a complete defence, since if successful this would render the D not liable to the P
○ this being the case, there would be no need to consider indemnity or contribution.
● P says the facts alleged in the 3P notice will either be found or not found. if found, then P loses anyways and thus the 3P notice is irrelevant.
○ but D says what about contributory negligence? 3P Could be found partly liable and D partly liable
○ then D will need to claim against 3P, if P claims the damages from D.
○ and this kind of claim may be dealt with in a third-party notice.
● since P’s action is not all-or-nothing (3P may be found partly liable), then the third-party claim is necessary since the P has not named 3P as a defendant.
● so this is a proper third-party notice.
● not clear how much delay this will lead to-but much of the 3P documents and information has already been produced to the D in the main action, so it won’t take up that much time.
○ plus, avoid a second trial on similar issues.
Ratio
● deals with effect of Contributory Negligence act on third-party joinder
○ may be that the third-party and the D will each be found partly liable, in which case it makes sense to join the actions.
Freudmann-Cohen v. Tran (2004) ON CA
Issue:
Facts:
● DT and DV were the operator and owner respectively of a car, they ran into the plaintiff, FC who was insured.
● Z is the insurer of FC
○ since the Ds are underinsured, FC is suing Z as well
● Z learned that Ds were delivering Pizza at the time for company PN
○ they want to join PN as a third party
● PN wants the third-party motion struck as failing to disclose reasonable cause of action, or summary judgment dismissing the cliam.
● In an insurance claim, insurer may subrogate into the position of the claimant to proceed against people like PN
● so here basically while Z is a D, it wants to proceed as a P in the place of FC as against PN
Analysis
● PN has two arguments
○ first, that Z’s claim is a subrogated claim and must thus be brought in the name of FC- it cannot be brought as an independent 3rd party claim in the name of the insurer itself
○ second, that the statute of limitations is barred against PN
● So can Z bring the claim as a 3rd party claim, or must it proceed by subrogation into FC’s position?
● The heart of the solution here is in a change to the rules, which was intended to simplify third-party proceedings and avoid multiplicity
○ third-party proceedings became a general joinder device the D can use to pbring in any related claim against non-parties
○ it is not limited to situations where the damages must flow through D.
○ is is not necessary for the person agaisnt whom the third party claim is asserted to be a person who “is or may be liable to the defendant”. Rather, it is sufficient that the party sought to be added “should be bound by hte determination of an issue arising between P and D”.
■ so whether or not PN is liable to P is irreelevant
○ is the requirement that Z bring its cliam through P by subrogation a matter of procedure, or substantive law?
■ the requirement of subrogation is proecdural, not substantive
■ subrogation itself is substantive, the form of the claim is merely procedural.
● the principle that the the subrogated insurer must sue in the name of the insured was based on the desire to allow the insurer to exercise its subrogated rights.
○ allows insurer to exercise personal remedies.
○ based on teh personal nature of the claim.
● besides, the Insurance laws do not say the insurer must sue in the name of the P, merely that they may do so.
● so basically this is a competition between two procedural principles, and in the name of efficiency and avoiding multiplicity, the principle which allows third-party claims wins out.
● PN here is clearly a person who should be bound by the outcome of the proceeding, as per under the rules, since PN is joingly liable with the motorist as a result of employee vicaroius liability
Ratio
● The principles underpinning the requirement to claim as a subrogator are procedural, as are the ability to claim as a third party
● in a competition between rules of procedure, the needs of efficiency, justice, avoidance of multiplicity must win out.
Hannah v. Canadian General Insurance Co. (1989) NS SC
Facts:
● P is suing the insurer of the home because P’s home was damaged as a result of blasting carried out in the next lot over.
● D wants the trial adjourned and wants the P to have to add the blasting contractor as a defednant.
Analsyis
● D says that if P wins and does not include the contractor, then D sues the contractor later, there is a danger of inconsistent verdicts.
○ plus there is the added cost and inconvenience of duplicate proceedings.
● normally as long as there is a connection with the original subject of the proceeding, the common issues should all be joined at once.
● however, it’s not up to the D to require P to add more parties.
● P has chosen to sue D and does not want to sue the contractor
● D is asking for this new party very late.
● it would not be fair or in the best interests of justie to adjourn right now when D could have applied months ago to joint he contractor
Ratio
● must show both a connection to the original subject of the proceedings, and that it would be fair and in the interests of justice to adjourn right now.
○ if you are alate...
● should claim by way of third-party claim, not an order that P must include the contractor.
Notes on Insurance cases
● WHere a 3P has a claim to assert, 4P proceedins are possible. And 4P can bring against 5P, etc.
● BC rule 22- the Mechanics of Third-Party proceedings
○ D must serve 3P notice within a time period, and must serve that 3P with a copy of pleadings
○ P in main may challenge propriety of the 3P claim.
○ 3P files a statement of defence to the D’s statement of claim
○ 3P and D have production adn disvoery from each other, and a third-party issue is set down to trial at the same sitting as the main action
○ but the P is not supposed to be prejudice or unnecessarily delayed by reason of a third-party claim.
● 3P is bound by result of main action
● 3P judgment may take place at the same time as the main action, or may take place afterwards in seperate trial
○ may be separate trial where there are issues between 3P and D that have no bearing on P
○ in this type of case, the main action will be dealt with prior to the 3P proeeding
○ if the issues are all basically the same, just one trial.
Cross-Claims
● cross-claims permit cliams between co-defendants
● D1 may sue D2
● D1-D2 proceeding may succeeded even if P-D1 proceeding does not.
● not allowed in every jurisdiction.
Intervention
● Sometimes persons who are not parties are allowed to participate in litgation
● historically very narrow and rare categories
● but where the actions between parties raise important issues, it may be required tha tthe public interest be represented and addressed.
● Intervenors has two possible roles
○ may be allowed to intervene as another interested party with full rights and liabilities of other partries
○ or may be allowed in as amicus curiae, who informs the court about a position or interest not represented by the parties
■ limited participatory rights- there to inform only.
Canadian Blood Services v. Freeman 2004 CarswellOnt 4514 SCJ
Issue:
● when will intervenor status be allowed? what determines whether intervention will be as an added party or as a friend of the court?
Facts
● Canadian Aids society (CAS) wants to be an invenor with full rights in the action
● CBS collects blood around Canada
● will not allow gay men to donate if they’ve had sex with a man since 1977
● CBS is suing F- F lied about not having sex with a man even once, and so being sued for 100K
● CAS wants to intervene
○ does public education on HIV/Aids
○ advocates on behalf of hte striken, and in cases involving gay and lesbian equality rights.
○ has intervened in these types of cases before.
○ long recongized in other poreedings as an organization entitled to seek standing.
Analysis
● rules allow intervention in two forms
○ added party
○ friend of the court.
● to itnervene as party must show one of these:
○ an interest in the subject matter of the proceeding
○ possiblity of adverse affect as a result of the proceeding
○ that there exists between the person and one or more of the parties [blank, textbook left out- check rules]
○ then the court must consider whether the intervention will unduly delay or prejudice the rights of the parties.
● to intervene as friend must just get leave of the presiding judge to render assistence to the court by way of argument.
● intervention alwasy discretionary
○ whether or not the requirements are met, if including the intervenor would delay or prejudice, too bad.
○ further, court may grant the intervention terms such as the court chooses
■ may be less than a full party- right to argue, no right to lead evidence.
● typically greater lattitude will be given in Charter cases since they involve a greater public interest
● intervenors play different roles in appellate courts as compared to trial courts.
○ intervenor may be more problematic at trial since much more potential to increase delay by leading evidence, etc.
● Factors to consider for intervenors:
○ Direct interest in the charter challenege?
○ Prospect of useful contribution to the proceeding?
○ Would contribution delay or prejudice the other parties?
○ Is delay or prejudice outweighted by contribution?
○ what terms or conditions might be used to ensure that the goals are met without delay or prejudice.
● Does CAS have a sufficient interest in the subject matter of the proceedign?
● Several factors at play
○ must be a public interest that is over and above that of the general public
○ the proposed intervenor must do more than state it is an organization representative of groups across the coutnry that agree with one of the parties
○ experience as an interest group is inusfficient
○ witness experience is not helpful
○ ability to give XW on certain matters is non-determinative since other parties could do this as well
○ past role as advocate/intervenor not dterminitive
○ expereince as lobbyist insufficient, perhaps even a negative- don’t want lobbyists in the court system.
● CAS is an umbrella group of many blood consumersand suppliers, including people with HIV. CAS has an interes tin sexual orientation issues, and is interested in protecting Canada’s blood suply
● But Freeman is a gay male without AIDS. And no other party to the proeeding represents the itnerest of the groups that CAS represents.
○ CAS can represent consumers of bloodproducts as well as public education mandate, so it will be directly affected by the outcome of the proceeding
● Useful contribution
○ factors
■ cannot repeate anothers evidence or give just slightly different emphasiss
■ fact that one party may lack resources is not enoguh
● intervenors not granted simply to help another party
■ cannot simply promise not to overlap or duplicate- must convince the court that there is something new to contribute.
○ intervenors must explain to the court how they will fit into the case
■ there will always be some added edelay and complexity, so must explain why useful.
○ CAS merely states it will provide legal argument and that it has extensive knowledge
■ but does’nt explain how it will be helpful
● So while CAS has shown that it is interested, it has not shown it can make a useful contribution.
○ CAS can always make its expertise and resources available to F directly.
● So CAS will be allowed to intervene as a friend of the court under conditions
○ cannot file further material without consent of the parties or without leave of the TJ
○ it will neither seek nor be subject to an award of costs
○ 20 page written arguments which do not duplicate the arguments of other parties
○ must stick to case management guidelines.
○ 30 minutes oral submissions.
Ratio
● Intervenors as parties must have a public interest that is over and above the general public interst
● Intervenors must be able to show they can make a genuine contribution to the proceedings that the parties themselves could not.
Hollinger Inc. v. Ravelston Corp. (2008) ONCA
Facts
● H got an injunction against Lord and Lady Black- Mareva
● TJ sealed the order, Globe wants it open.
● so Black was facing a lot of criminal trials in the US
○ TJ froze assets, sealed the order
○ Blacks tried to have order set aside.
○ then Globe wants to find out whats in there
○ so appleid as intervenor for the prupose of challenging the orders.
● TJ denied, globe appealed
ANalysis
● CA is overturning- TJ gave insufficient weight to freedom of the press and that the Globe sough standing to assert a position coincident with the public interest that would not otherwise be raised.
● There was no one but Globe to represent the publics interest in disclosure.
● Rules allow intervenors where a party may be adversely affected by the judgment
○ clearly Globe’s rights as the press would be adversely affected by the order.
● Globe was allowed to make submissions, but by denying the right to challenge the sealing order, Globe’s position was undermined.
● If the Globe had been intervenor, the judge may have taken it more seriously, may have reviewed the sealing order and decided whether parts could be disclosed?
Ratio
● intervenor may be allowed where no other party can represent right
● where charter interest at stake, more likely to allow intervention.
Garry D. Watson, “Class Actions: The Canadian Experience” (2001)
● Article based on OLRC report on class actions
● objectives of class actions
○ access to justice
■ litigation too expensive for modest amounts on individual basis: “individually non-viable claims”
■ arise due to ceiling on damages, limited award of punitive damages, no jury trials, awarding of costs deters litigation
● so particularly prevalent in Canada
○ Judicial efficiency
■ better to avoid repetitive litigation relating to the same events.
■ only truly comes to play where the subjects of the class were individually viable, sinec otherwise wouldn’t sue in first place.
○ behavioural modification
■ want to deter companies from inflicting small amounts of damage on a large number of people who can’t afford to litigate on their own.
● Typical Rules of the class procedure
○ must be cause of action
○ class of two or more people
○ common issues
○ class action must be the preferable procedure for resoving the common issues
○ representative P must fairly and adequately address the interests of the class,
■ no conflict of interest with other class members
■ workable plan for processing action
○ other typical features
■ notice requirement
■ class members may opt out within a time period or be bound by the court’s determination
■ disocvery
● limited to the named parties, though D may requrest to disover other individual class members on discretion
■ settlements must be apporved by the court
■ Fee shifting
● costs are a problem for class actions
● BC makes the representative P virtually immune from paying costs, as long as the action is netiehr vexautious or frivolous.
● in Ontoario, costs can be awarded against a losing repsrenetative P, unless the action was a “test case, novel case, matter of public interst”. There is a fun for Class Proceedings in Ontario, but it has been a failure.
● court determines the fee for class counsel
■ classes may be national, including Ps who live in jurisdictions where there is no class action legislation.
Western Canadian Shopping Centres Inc. v. Dutton [2001]
Facts
● D wanted to immigrate to Canada, and to qualify they invested money in WCSC under the Business Immigration Program.
● They lost money, and brought a class
○ WCSC wants it struck out
Analysis
● class action started in Equity in the 17th and 18th centuries.
○ courts of law focused on 1v1 adverserial system
○ equity used rules of compulsory joinder requirng all those interested in the subject matter of the dispute to be made parties
○ Aim of the courts of equity was to render complete justice.
■ allows the court to get the full picture of the dispute, and avoid multiplicity
● multiple joinder was inadquate where there was just too many parties, so relaxed the compulsorty-joinder rule where strict adherence would work injustice.
○ the result was the repserntative action
○ became a bit stricter and tended to rare use
● mass prodcution/consumption in Canada provided fertile ground for the Class
○ faulty products may be sold to many consumers
○ corporate mis-management may damage a great number of sharefholders
○ enivornmental damage may have widespread consequences.
○ class action allows thses disputes to be settled in a manner that is fair to all parties.
● advantages of class actions
○ judicial economy by avoiding dupliaction in fact-finding and legal analysis
○ improves access to justice because the litigation costs are divided over a large number of plaintiffs
■ ensures no plaintiff compeltely shut off
○ serve efficiency and jsutice by making sure no wrongdoers can ignore obligation to public
■ otherwise those who caus widespread but limited harm could avoid their obligations to the public
● Test for class actions
○ where there is no legislation, the provincial rules are based on old Elnglish rules.
○ where the statute is no specific as to the requirements of the class, must turn to common law
■ preferable to have a statute (as in BC) but courts will hve to fill the void
○ common law requirements for class action
■ class must be capable of clear and definite defintion
■ principal issue of fact and law must be the same
■ sucess for one P must mean succes for all Ps in class
■ no individual assessment of the claims of individual plaintiffs need be made
○ similar to requirements in most statutes.
● Class must be capable of clear definition
○ identifies the individuals entitled to notice, entitled to relief, and who will be bound by the judgment.
● Issues of fact and law common to all class members
○ underlying question is whether allowin the suit to proceed as a class will avoid needless duplication of fact-finding or legal analysis
○ not necessary that each P be identically situated
○ there may be many, or even mostly, non-common issues
○ but must share a substantial common ingredient.
● success for one class member on a common issue must mean success for all members
○ all members of the class must benefit from the successful procesutio of the action
● representative adequately representing the class
○ look at motives of the representative
○ quality of counsel
○ capacity of representative to bear costs
○ representative need not be “typical” nor “best suite” but must be adequate
● just because all four steps met does not mean adequate certification
○ other factors may weight against certification:
■ D may wish to lead different defences against different plaintiffs
■ D may wish to examine each class member during disvoery
■ certain class members may raise important issues not shared by all
■ class may be so smlal joinder more sensible
○ when these kinds of factors predominate, no certification.
● BC codes states that class should not be denied on the grounds that
○ relief includes a demand for money damages that will have to bea ssessed individually
○ relefief claimed relates to seperate contracts involving different members of the class
○ different class members seek different remedies
○ ID of each individual class member not known
○ class contains subgroups with claims not shared will all members of the class
● so when conditions for class are met, court should exercise its discretion in a flexible way, keeping in mind the benefit the class action offers inthe circumstances of the case, as well as any unfairness certification might produce.
● must give all potential members of the class notice, since a judgment is binding on a class member only if notified of the suit.
Ratio
● Where no code exists, the factors to be considered in assessing certification are:
○ wehther the class is capable of clear definition
○ whether there are issues of fact or law common to all class members
○ whether success for one class member means success for whole class
○ whether the representative P will adequately represent the class.
Certification is Typically set out in statute
● must show cause of action
● identifiable class of two or more people
● claims or defences raise common issues
● class proceding would be the preferable procedure to resolve the common issues
○ whether the Q of fact or law common to the members predominates over any question affecting only individual members
○ whether a significant number of the class has a valid interest in controlling the prosecution by sepearte actions
○ whether the class proceeding would involve claims that are or have been subject of other proceedings
○ whether other means of resolving the claim are more practical/efficient
○ whether the administration of the class proceeding would create greater difficulties than those that would be likely to arise if the cliams were brought individually.
● representative P or D who
○ would fairly and adequately represent the itnerests of the class
○ has produced a plan for proceeding which sets out a workable method of advancing the proceding and notifying class members
○ does not have a conflict of interest with other class members in terms of the common issues
● Court is not to refuse to certify on the basis that
○ relief includes damages which would have to be assessed on a P by P basis
○ relief relates to seperate contracts involving different class members
○ different remedies are sought by different class members
○ the number of members and their precise ID is not known
○ the existence of subclass whose members have claims or defence that raise common issues not shared with the broader class.
(b) Casebook:
Aylsworth v. Richardson Greenshields, 1987 BCSC
Issue
Facts
● case emerges out of the problem that people are having tro wait longer and longer to get to trial, and costs are getting higher and higher
● P are trustees of mutual funds
○ claim D ran up the price of certain stocks and possibly pribed some of the investment managers
● D has brough other third parties into the trial
○ P’s investment advisor
○ the companies whose shares were infalted
○ the brokers who proecssed the acquisition of worthless shares
○ some of the isnurers.
Analysis
● counsel need to suggest ways to shorten trials
● counsel may need to reconsider certain principles which were once useful and necessary but cannot always be applied in the interests of efficiency
○ but we need to be careful that we don’t do damage to justice when doing so
○ but times they are a changin
■ can’t always stick by the decisions of the past, despite stare decisis, since the context of trials are chanign
● it is clear that some of these third party issues will complicate and add to the length of the trial
○ the action is going to be difficult at all, but expanidng the litigation will cause serious delays.
● the rules allow that htird-party proceedins may be denied where they would prejudice or unnecssarily delay the P
○ clearly adding all these third parties will delay and prejudice the P, so they should be tried afterwards
○ however, if they are going to be bound by the decision at trial, they should be able to appear and defend the claims against the D
○ otherwise their may be insonsitent findings and the D may be exposed to judgment before it is able to claim against the third parties
● clearly D is better off if everything is tried together, but trying them apart will not result in unfair prejudice.
○ contributory negligence will still reduce P’s judgment
○ same issues may need to be tried again, but not that likely since most responsible litigants will accept the results of the trial, and anyone who acts unreasonably in this connection may be aseked to play solicitor and own client costs
○ inconsistent verdicts minimized by having the same judge preside at both trials, and to try them one after the other
■ most likely the same evidence
○ and if judgment is a concern, the execution thereof can be stayed until the proper time.
● so third parties will not be bound by the results of the trial, and they will not need to be present in the first trial
Ratio
● time concerns have long been a real problem
● third-party proceedings may be deined where they would unnecessarily delay or prejudice the plaintff
● in that case, the third-parties will not be bound by the initial judgment since they will not have had the opportunity to participate
○ however, if they are unreasonable about this, costs may be awarded
● danger of incnsistent verdicts minimized where evidence and issues will be largely the same, the same judge is used, and a minimum of time elapses between judgments.
Rumley v. BC, 2001 SCC
Issue
● What is needed for a class action to be certified?
Facts
● this case arises out of the abuse at the school for the deaf
○ widespread and ongoing physical and sexual abuse
● class includes all current and former students who were abused or poorly educated
○ and family members who suffered damage as a result of the abuse
○ and family members and others who were abused by current or former students who were themselves abused.
● common issue
○ whether the D breached the SoC it owed to the Ps
○ whether the D made negligent or fraudulent misrepresentations about the school
○ whether the D’s conduct justified punitive damages.
Analysis
● only issue here whether the CA erred in granting certification
○ standards for certification set out in the class action statute.
● D accepts that the pleadings disclose a cause of action, that the respondents have stated an identifiable class, and that the respondents are adeqaute representatives of the class
○ issues are whether there were common questions and whether a class proceeding would be the preferable procedure for the fair and efficient resolutoin of the common issues.
● D says that none of the class members can win without showing conduct falling below the SoC, but that this is inescapably idividualsit and not amenable to resolution in general terms applicable to all class members.
○ liability ought to turn on whether the SoC was breached with respect to the supervision of particular class members, not in the abstract.
● Court should avoid framing commonality between class members overly broadly
○ if commonality too general, court may end up having to engage in individual legal and factual analysis to a great extent defating the advantages of the calss system
● but that’s not the case here
○ the basis of the allegations are that there was systemic negligence: the failure to have in place management and operations procedures that would reasonably have prefvented the abuse
○ this can be answered without reference to the circumstance of any individual class members
○ the class representative can choose to advance this kind of claim to make it more amenable to class proceedings.
■ nothing wrong with making a systemic approach.
● while the SoC has varied over time, this just means the courts must answer in a nuanced way
○ you could divide the years covered into three disctinct subperiods
● There will definitely be differences among class members, and liability could be imposed for some but not others.
● but the commonality requirement may be satisfied whether or not the common issues predominate over issues affecting only individual members.
○ predominance of common issues is not the determinative factor
● punitive damages may be determined ias a common issue
○ it is not impossible that punitive damages could be awarded for a systemic failure, so it is a question that could be resolved as a common issue.
● so is this the preferable procedure?
○ two questions
■ whether or not the class proceding would be a fair, efficient, and manageable method of advancing the claim
■ whether the class proceedings would be preferable in the sense of preferable to other proceedings.
○ BC gives particular guidance to this question
■ predominance
● not dterminative, but relevant
● here the systemic issue is central, so likely to predominate
● injury and causation will have to be assessed individually, but this is going to be a major part of it
■ whether a significant number of the class have a valid interest in indvidually controlling the prosecution of seperate actions
■ whether the class proceeding would involve claims that are or have been the subject of any proceedings
■ whether other means of resolving the claims are less practical or less efficient
● individual actions would be much worse, since there will be so many common questions
● and the background and overall history of the school is going to be very important for the claims generally
■ whether the administration of the class proceeding would create greater difficulties that those likely to be experienced if relief were sough by other means
● must emphasize the particular vulenerability of the Ps in this case
● since they are all deaf or blind or both, litigation will be very diffcult
● class action may mitigate this somewhat
Ratio
● Commonality is one key part of getting the class certified
○ there must be common issues among the plaintiffs that are not so general
■ the point is to reduce the number of individual findings of law and fact, and if the common grounds are too general, this point will be undermined
○ P may structure their claim so as to increase the commonality
○ predominance of the common issues is not a prerequisite or determinative
● BC sets out particular guidance in determining whether the class proceeding would be preferable.
○ two questions
■ whether or not the class proceding would be a fair, efficient, and manageable method of advancing the claim
■ whether the class proceedings would be preferable in the sense of preferable to other proceedings.
● predominance
● whether a significant number of the class have a valid interest in indvidually controlling the prosecution of seperate actions
● whether the class proceeding would involve claims that are or have been the subject of any proceedings
● whether other means of resolving the claims are less practical or less efficient
● whether the administration of the class proceeding would create greater difficulties that those likely to be experienced if relief were sough by other means
● courts are going to be increasginly liberal in the interests of efficiency
McNaughton v. Baker, BCCA
Issue
● when may a D be denied the right to bring third party proceedings?
Facts
● P sold thier dairy farm to B, B got a mortgage from P
● B defaulted, some complicated transactions happened
● P forecloses, and sues the lawyers wh oassisted in the transaction
○ they say the negligence of the lawyers cost them 300K
● the lawyers say no, denying negligence and in the laternative saying it was the realtor and accountants falt
○ and laywers want to bring in the realtor and accountants as third parties.
● the third party proceeding was struck, and theis about whether that was correct
Analsyis
● normally the legal principle is that a third party proceeding should only be struck if there is a possibility it will suceed.
○ but the question is whyether the D’s third party claim should be struck if there is no evidence to support it, or whether the pleading should be allowed to stand if, on its face, it discloses a cause ofa ction.
● third party proceedings are a form of pleading wehreby the D asserts a claim against someone other than the P in the event that the D is found liable to the P.
○ it may be brought for claims of contribution, indemenity or any other relief or remedy connected to the original subect matter of the action and where there is a question or issues susbtantially the same as a question or issue arising in the main claim between P and D.
○ these claims could be brought independently as seperate actions, but to avoid a multiplicity of proceedings, the rules permit the claim to be made in the action which has been commenced against the D
■ avoids multiple actions and inconsistetn findings
■ helps D defend against P’s claim
■ and makes sure the third party claim is decided before D has to pay any judgement to P
● A third party proceeding may be brought as of right, but ythe third party can apply to have the notice against him struck out
○ it can be struck out if it is not connected to the original action
○ or if it discloses no reasonable cause of action, or is frivolous and vexatious, may prejudice or embarass the hearing of the appeal, or is otherwise an abuse of process of the court
● Thidr parties here say there is no reasonable claim against them .
○ the court said there was a claim, it had just been plead defectively, so on ammendment it could stand.
○ when the ammendment occured, the thirdparties objected saying there was no evidence to justify the proposed amendment.
● while material facts must be plead, historiclaly the right to plead has not depended on adducing evidence in support of the claim
○ on a motion to strike out, the court proceeds on the assumption that all facts pleaded are true
○ the rules do not require evidence to be adduced in support of a claim.
○ this is consistent with pleading more generally
○ complex and isgnificant issues should only be determined upon a proper factual determination which requires a trial in the issue
○ to require a party seeking to bring a third party action to adduce evidence supporting that claim in advance of trial is to deprive the party of his right to plead a cause of action first and prove it at trial
■ it confuses the purpose of pleading and the purpsoe of trial.
● so the right to bring or maintain a third party claim is not dependent on establishing evidence to support the claim.
○ the motion to strike out or amend a third party claim is considered by assuming the facts pleaded can be establsihed.
● Should the amendments have been granted?
○ do the proposed amendments disclose a cause of action
■ they show negligence and breach of contract
■ thirdp parties say this cannot work, since they were the agents of the P
■ but here the relationship between the lawyers and the third parties are in dispute
■ so the pleadings disclose a possible third party claim against the thirdparties and should be permitted.
Ratio
● no evidence needs to be led to support a third party claim
● a third party claim should be tretaed like any other pleading
○ assuming that th facts contained in the pleading are true, is there a reasonable cause of action?
○ only strike if it is plain and obvious no cause of action exists, or if frivolous, vexatious, etc.
20-3 Representative Proceedings (See above)
20-4 Declaratory Orders (See Above)
6-2 (old 15) Change of Parties
● If a party dies or ceases to exist, the claim may continue
● if the interest in question is conveyed or assigned, the proceeding may be continued against the tranferor or transferee
○ the court may order joinder of the new party
● if the P dies or ceases to exist, the proceeding continues, but the D can apply that the proceeding be dismissed if no one is taking action
● the court may add, remove, or substitute party by application
○ may order the person removed if that person is not or has ceased to be a proper or necessary party
○ order a person added or substituted if they ought to have been joined in the first place or that persons participation in the proceeding is necessary to ensure all matters in the proceeding may be effectually adjudicaetd on
○ may order a person added if there is a question or issue that is in common with the relief sought or the subject matter of the proceeding
● if a party is added, substituted or removed
○ the pleadings must be amended
○ no steps taken against new parties until they get a copy of hte amended pleadings and the order adding/susbtituted
○ the party added may apply within 21 days to vary or discharge the order adding
○ case plan order may also need to be modified
● a person cannot be added or substituted as plaintiff wihtout the persona’s consent
● if a person is added, the proceedings prior to their inclusion are binding on that person as if they were a party to those proceedings
21-9 (old 22) Negligence Act Claims
● a D who claims contribution or indemnity under the Negligence act must do so as a counterclaim or third party notice, depending if the indemntiy is to apply to the P or a third party
6-1 (old 24) Amendment of Pleading (See Above)
|Interim Relief and Summary Trials |
1. Topics:
(a) Interlocutory injunctions
● injunctions may be pre-trial, or interim (issued during trial for a set period)
○ the judge may decide during trial that an issue is very important, but he doesn’t have all the facts. so he will preserve the status quo and issue an interim injnciton which will be revisted before it expires.
● injunctions are equitable, so may be difficult to get in many situations
● however they are very important, partiuclary in cases like breach of trademark or grey market sales, or if someone is euthanizing dogs...
○ they are often delivered in a hurry since time is typically a factor, and they are sometimes applied for exparte
○ they may result in shutting down a business and defacto decide the trial
○ so courts are highly aware of the stakes at hand.
● in order to get one, the ordinary process is to first quickly put together a notice of civil claim, then a notice of application
○ usually serve on the other side and get them in front of the judge ASAP (ex parte is the exemption)
○ the reigstry and courts are very generous here- it’s even technically possible to have an injunction done after hours in the judge’s living room.
● 3 pronged test set out in Cynaimide by Denning
○ serious issue to be tried?
■ low threshold
○ irreperable harm?
■ harm that cannot be compensated by damages at the end of trial
■ although some thigns that may technically be compensable (like losing a finger) may still qualify as irreperable harm
○ balance of convenience
■ which party will be least harmed or inconvenienced by issuing/not issuing the injunction
● BC courts lump together balance of convenience and irrepreable harm
○ courts are not slaves to process and would rather look to all the factors
○ however, the Federal Court of Appeal sticks strictly to the irreperable harm test.
● things to consider
○ which party is at fault/is changing the status quo?
● the more invasive/strong the injunction is, the higher the susbtantive part of the test is
○ ie. for Anton Piller/Mareva you may have to show you have been defrauded, or that the D will destroy evidence.
● with ex parte proceedings, its not good enough simply to be in a rush
○ you should at least give a phone call or something
○ lawyers owe a duty to the court, and given the vulnerabiliyt of the absent party, you have a duty to full and frank disclsoure
○ high standard, and if it is not met, you will be in big trouble
■ especially if the client deceived you.
● after a trial, a court is much more likely to issue an injunction, and wont’ even consider the Two-Pronged test, since they already have all teh facts and both sides have partiicapted in full and frank disclosure.
Undertaking as to damages
● when you go ask for an injunction or another extraordinary action, you may have to make an undertaking as to damages
○ if as a result of the injunction the other side suffers damages, and wins, you will have to pay
○
Mareva injunctions
● ex parte proceeding whereby assets may be frozen
○ since ex parte want to act in upmost good faith
○ if you deceive the court, even unintentionally, that will stick with you a long time
● the order is served on the banks rather than the fraudster
○ if you don’t know which bank, may need to serve on a bunch
● if you can get an order to have the fraudster’s records disclosed, you are in good shape sinec they will often lie and you can bang them later
● normally uncommon, but come up quite often in BC
● a case called “Etna” made it practically impossible to get a Mareva order, since you had to show fradulent intent on the part of D- but this is often impossible if you have just been defrauded
○ the BC courts don’t follow this case
○ althoguh the Court in BC maintains high standards, it looks at all the facts, and in BC a Mareva injnction is more likely to issue then in other parts of Canada.
○ the “Silver Standard” case said you don’t have to prove an immediate flight risk or fraudlent intent
■ assets will be frozen when justice demands
■ some judges then went a bit overborad, and so they rolled it back again
○ unlikely to be awarded unless pretty clear P is goign to win at the end of the day, and has particularly persuasive evidence justifying an intrusive order.
Anton Pillar orders
● civil search warrant, allowing you to go in and look through the other party’s documents
○ if they deny you entrance, they can be hit with a contempt order
● may be used against electronic materials, any kind of reocord, often against pirates/coutnerfeiters.
● test
○ applicant must show
■ very strong prima facie case
■ potential or actual damage of not getting the order is very serious for the applicant
■ there is clear evidenec that the defendants have incriminating evidence or documents
■ there is a real possibility that the evidence may be dstroyed before an application may be made with both parties present
● serving it may be difficult, since you don’t want to end up seeing privileged information
○ this could lead to the lawyer or documents being excluded
● often there is a supervising lawyer who will act as an officer of the court
○ this person is “neutral”, will knock on door, serve order, etc.
○ gives D a chance to contact a lawyer and seal privileged documents prior to the search
○ the neutral lawyer will act as a sort of referree.
● Piller order is aimed at preserving documents
○ the court exercising power at the applicants request
■ the court does not want to look stupid when exercising inherent jusidiction and it can be very long and difficult to determine what P will actually get access too
○ so thus very expensive
● Celanese/Grenz are optional cases where lawyers were goign through documents and were exposed to privileged mateirals
○ in Grenze, the lawyer was acting without a supervising solicitor
○ the lawyer even interrogated the D without the D’s counsel
○ just a total fuck up.
● Anotn Piller orders are fun, but scary and rare, but again more common in BC than elsewhere.
(d) Summary judgment (Part 9-6 (old Rule 18))
Summary trial (Part 9-7 (old Rule 18A)
● a stripped down trial that has fewer safe guards and procedural requirements as compered to a full trial, but still results in a final decision
● over 50% of all trials resolved sumarrily, possibly over 90% of personal injury cases
● the goal remains a just, speedy, and efficient determiantion on its merits
○ the focus is on proportionality
○ the idea of a perfectly just trial is great, but not if no one can afford it.
● most summary trials take a day, but in theory may take up to a week
● the applicant may be either the D or the P
○ the applicant will take the judge through affidavits that set outt he relevant facts and the necessary law
○ then the opposing party will walk the court through its versions of the fact.
○ it is possible to have apply for the trial to be shifted into a full trial, but very difficult to do.
○ Usually what happens is the judge needs to look at theaffidavits to determine whether a full trial is neecssary, but then they become invested in the case and want to render judgment
● affidavits are the main type of evidence
○ may use discovery evidence from the other side, but you cannot use your own discovery
○ you should not put in the whole of the discovery, just the parts you are relying on
● interrogatories are used like questions in discovery, but it is discovery by letter
○ must get permission to use them under new rules
● notice to admit may be used as evidence
○ series of factual statements you ask the other side to admit
○ if they are unreasonable in failing to admit statements, they may get an adverse cost order.
● you cannot use evidence from a non-party witness
○ the court doesn’t trust third-parites in this context sice they can’t be cross-examined and personally assesed for credibility
○ plus you don’t want to complicate things with a thousand witneses
○ however, non--party witnesses may step up and file affidavits of their own volition, but they cannot be forced by a party to give an affidavit for summary trial
● contradictory affidavits do not necessarily mean a summary trial is unavailable, but there must be other evidence supporting it
○ just because the judge prefers one affidavit over another is not enough.
● the complexity of the claim and the number of parties are important considerations in assessing whether a summary trial is appropriate.
○ courts also unlikely to resolve public interest issues, paternity or custody dispute, allegations of defamation or fraud, etc.
■ anythign where credibility and internal state of mind will loom large may not be appropriate for summary determination
● courts ought not to offer summary judgment on isolated issues, since this risks binding and embarassing future courts resolving the other issues
● consider the dialogue between Chu v Chen and Inspiration management.
○ this shows us that different judges have differnt ideas of what is appropriate and suitable for summary trials
2. Readings:
(b) Casebook:
Attorney General of B.C. v. Wale,1986 BCCA
Issue
Facts
● this is an appeal from an injunction preventing members of three indian bands from catching and selling fish
● the bands had passed bylaws purporting to regulate fisheries in a river on band law
○ bylaws allow fishing in any quantity thorugh any non-explosive method
○ the bands have always been allowed to fish; only now do they want to sell.
● the Province and fisheren say this is an improper delegation of the federal fishery’s power, and that the reserve lands do not extend all the way to the midpoint of the rivers
○ so the AG requested and obtained an interim injunction
Analysis
● an interim injnction has a two-pronged test
○ applicant must satisfy the court that there is a fair question to be tried as to the existence of the right which he alledges
○ applicant must establish that the balance of convience favours the granting of an injunction
● the criteria of irreperable harm may be viewed as its own step or part of balance of convenience
● normally an interlocutory injunciton should be grantedonly where damages would not be an adequate remedy
○ if damages are adequate at it appears likely the adverse party can pay them, the court is generally not justified in giving the applicant his remedy before the issue has been tried.
○ if damages are not an adequate remedy, the court may prefer to act to preserve the status quo
■ so if A is going to start a new activity, the status quo would be to prevent him from doing so until the issue can be resolved.
● clear proof of irreperable harm is not required
○ doubt as to the adequacy of damages as a remedy may support an injunction
● none of this works like a checklist, but more like a guide in coming to the appropriate result
○ checklist - relative strength of case, irreperable harm, balance of convience - is not a set of hurdels, but factors related to assessing the relative risk of harms from granting or withholding the interlocutory reief.
● so while the CJ failed to mention irreperable harm, this is not fatal
○ she simply said that where the factors are balanced, an injunction should be granted to preserve the status quo
● there was evidence that there was a fair question to be tried
● there was evidence that fishing might damage the salmon scoks, and that federal and provincial regulations would be flouted in the absence of an injunction
○ there was evidence that damages would not be a sufficient remedy, that the factors on either side were basically balanced, and that it was appropriate to maintain the status quo in the interim
Ratio
● an interim injnction has a two-pronged test
○ applicant must satisfy the court that there is a fair question to be tried as to the existence of the right which he alledges
○ applicant must establish that the balance of convience favours the granting of an injunction
● the criteria of irreperable harm may be viewed as its own step or part of balance of convenience
● normally an interlocutory injunciton should be grantedonly where damages would not be an adequate remedy
○ if damages are adequate at it appears likely the adverse party can pay them, the court is generally not justified in giving the applicant his remedy before the issue has been tried.
○ if damages are not an adequate remedy, the court may prefer to act to preserve the status quo
RJR MacDonald v. Canada (Attorney General), 1994 SCC
Issue
● what motivates the court in terms of injunctions when there are charter issues at stake?
Facts
● application for relief from certain tobacco regulations
● regulations in question prevented advertsiement of tobacco, contained labelling restrictmnts, etc
● the tobacco companies are challenging the constitutionality fo the Act for violating freedom of expression, and in the meantime they want interlocutory relief.
● the tobacco companies say dismantling the advertisement would be long and expensive, and they shouldn’t have to do so until it’s clear the law is valid.
○ and if the law is valid, they whould get a stay in order to put things into effect
Analysis
● the tobacco companies want the court to delay the legal effect of regulations which have alrady been enacted and to prevent public authorities from enforcing them
○ careful balance is needed
● need to be wary of making rulings which deprive legislation of its effect, but must also be sure to protect fundmental rights
○ don’t want to rigidly enforce all laws to the letter right up to the poitn where they are struck down as unconstitutional.
● normally the same principles motivate the court in terms of stays and injunctions.
○ which is good because the tobacco companies want both - an initial injunciton, foollowed by a stayed if the dispostion goes against them
● the test for an injunction or stay has three steps
○ is there a serious question to be tried
○ would the applicant suffer irreperable harm if the application were refused
○ balance of convenience
● strength of the P’s case
○ no need to show a strong prima facie case
■ just a serious issue to be treid
■ this is because it is impossible to try a complex factual or legal issue at such a preliminary stage
○ the standard for an injunciton may be higher when an initial disposition has been reached but that dispostion has been appealed
■ but this is not the case when it comes to the charter
■ the charter rights are so important, that an alledged breach must be treated seriously even if another court has decided that no charter breach has occured
■ plus, a motions court probably didn’t have the time to go too far into the merits.
○ so serious question to be tried is a low threshold.
■ just a preliminary assessment of the merits to ensure the action is neither vexatious nor frivolous
■ if there is a serious question, msut move on to the 2 and 3 questions, even if the court has doubts that the applicant will eventually succeed.
○ exception
■ where the interlocutory motion will amount to a final determination, or where the rights must be exercised imediately or not at all, a deeper investigation into the merits is warranted.
■ for example, cases where the applicant seeks to restrain picketing.
■ or where the green party wanted to be part of the debate
■ in these cases, an interlcoutry motion would pretty muich resolve the issue one way or another, so higher merits must be shown.
○ exception 2
■ wehre constitutionality presents itself as a simple question of law
● where it is utterly clear that based on the law it is a violation of the constituion
● in that case you can skip the other tests
○ ~exception 3
■ NOT APPLICABLE IN CHARTER CASES
■ sometimes where the factual record is settled, then the applicant must show a stronger cse to succeed
■ but this doesn’t apply in charter cases, since s. 1 will be at stake and that requires a lengthy analysis.
● Irreperable Harm
○ the only issue at this stage is whether refusal to grant relief could so adversely affect the applicants own interests that the harm could not be remedied, even if the applicant eventually won on the merits
○ it means harm taht cannot be remedied by damages, although the fact that the adverse party is impecunious does not make the harm irreperable per se
○ particularly complicated here because the issue of damages under the charter had not yet been clearly resolved.
● balance of convenience and public interest considerations
○ this is a determination of which of the two parties will suffer the greater harm from the granting or refusal of the injunction
■ many interlocutry proceedings resolve here since the other steps are pretty easy
○ wide range of factors taken into account
○ public interst is a special factor taken into account during charter cases
○ interests of the public should be taken into account
● public interest
○ the polycentric nature of the charter requires a consideration of the public interest in assessing the balance of convenience
○ neither the AG nor any private party represents the public interest necessarily
○ so both parties may rely on considerations of the public interest
■ includes the concerns of society generally and the particular interests of identifiable groups
● status quo
○ while in private law cases, all things being equal it is better to preserve the status quo, it has no force when it comes to charter rights, since the whole point is often to change the status quo.
● here there is clearly a serious interst to be tried
● irreperable harm
○ would be a large expense of money that the tobacco companies will not be able to recovr even if they win
○ normally monetary loss not irreperable harm in private law cases, but where government is the unsuccesful party in a constitutional claim the applicant will have a tough time getting monetary redress
■ so even money can be irreperable in this context
● balance of inconvenience
○ losses would be strictly financial, but large in quantum
■ companies here large and can sustain considerable loss
■ may be able to pass the loss onto consumers
■ so it won’t be able to impact the long term viability of the applicants.
○ this is a suspension case, so the public interest carries significant weight
■ government passed the laws for public health purposes
■ and health warning do have an immpact
■ normally for an interlocutory motion, the government should be beleived that the act will have the salutary effect claimed.
● up to the applicants to show a more compelling public interst.
Ratio
● Three part test for stays/injunctions in charter cases
○ serious question to be tried
■ very limited review of case on its merits
■ only where the result of the interlocutory motion will in effect by a final determination of a law, or where the constitutionality can be assessed as a pure quesiton of law, should there be a more extensive investigation of the merits
■ normally uneless the case on the merits is frivolous or vexatious, or a pure question of law, this part will be passed
○ irreperable harm
■ refers to the nature of the harm: no damages possible
■ in Charter cases, even quanitifable finacial loss may be considered irreperable harm so long as it is unclear that such loss could be recovered at the time of the decision on the merits
○ balance of convenience
■ consider dmages suffered by both parties
■ and public interest, which may be relied up on by either party
● public interest should be given less weight in exemption cases as opposed to suspension cases, because for valid legislation the publci interest is presumed to be in favor of the law.
Centre Ice Ltd. v. National Hockey League (F.C.A.), 1994 FCA
Issue
● How do you establish irreperable harm?
Facts
● NHL is an association, membership of owenrs in the NHL hockey league
○ claims to own the trade mark for “centre ice”, but no evidence
● NHLS is the agent for the NHL hockey league, and is responsible for licensing the ™ “Center Ice”
● CI has operated a retail store in calgary under the name Centre Ice, and has probmoted the name and logo in Alberta and MB
ANalysis
● case comes down to irreperable harm
○ long a requirement for interlocutory injnctive relief
○ must be clear and not speculative
○ may require evidence thereof
● here the TJ granted an injunction in favor of CI, because allowing NHL to keep using the “Centre Ice” would damage CI’s business and undermine confidence in the consumers, which he found could not be remedied by damages
● The court here disagress
○ the confusion between competing products will not necessarily lead to a loss of goodwill for which CI could not be compensated for in damages
○ actually the loss of “brand power” occuring from passing off is readily calculabe in the commercial context and therefore can be remedied by damages
● Plus there was no evidence that there actually WAS a loss of good will or reduction in brand power
○ no evidence that confusion had led even one customer to stop dealing with CI in the future.
● The loss of goodwill and the resulting loss of sales cannot be inferred, it must be established with clear evidence
Ratio
● In order to establish irreperable harm, there must be clear evidence that the applicant would suffer damages that could not be readily compensable through damages.
Mark Anthony v. Vincor, BCCA 1998
Issue
● Can harm be irreperable even if damages could be calculated?
Facts
● MA owns ™ Mike’s hard Lemonade
● VI owns ™ Joe Hard Alcoholic LEmondae
● these companies are in intense competition, and are in a dispute
○ Joe’s has not yet entered the market
○ MA wants an injunction so that it cannot enter until the dispute is resolved.
● TJ found there was a serious question to be tried
○ brand confusion
● TJ found no irreperable harm
○ a precise record of sales will be made under the liquor regulations
○ market share will be available
○ so damages should be readily calculable
Analysis
● MA says that just because the damages were calculable doesn’t mean they would be an adequate remedy
● TJ was correct in finding that damages were an acceptable remedy
○ it was a reasonable finding and within the SoR
● irreperable harm is harm in respect of which the damages recoverable at law would not be an adequqate remedy, and that the evidence as to irreparable harm must be clear and not speculative
● MA’s case is that a ™ entitles them to an unique proprietary right, which must be protected in under to uphold the federal ™ regime.
● Nope
○ the purpose of an interlocuotry injunction is not to prevent competition, but to provide an equitable remedy designed to protect the parties pending a final determination of a serious quesiton
Ratio
● if the damages can be calculated and compensated by damages, they are not reperable
Insurance Corp. of British Columbia v. Patko, BCCA 2008
Issue
Facts
● Mareva Injunction
● Pa leased a truck and insured it with ICBC
● Pa crashed it, Pa and all occupants of the vehicle fled the scene
● Pa called ICBC to report, and claimed that Fa (uncle) was in fact driving
○ Fa testified to this effect
● ICBC paid out, then investigated, trying to find out who was driving
○ if Pa was driving, he would have been in breach of the insurance terms since it would have been a breach of bail
● ICBC found evidence Pa was driving, and is trying to get the money paid out back and punitive damages.
Analysis
● ICBC wanted a Mareva injunction
○ victims of fraud may apply for and obtain an injunction as secuirty for their damages, even without having to show a real risk that the defendant will dissipate assets.
● The basic test is whether the granting of an injunction is just and equitable in all the circumstances of the case
● Test
○ good prima facie case/arguable case on the merits
○ balance of convenience
■ showng the existence of assets within BC or outside
■ evidence showing a real risk of disposal or dissipaition so as to render moot any judgment
● normally with a Mareva injunction it will not be just or convenient to tie up a D’s assets merely on the speculation that P will succeed and have trouble collecting judgment
○ so while a real risk of dissipation is not strictly required, it usually will have to be shown.
Ratio
● the test for a Mareva injunction is
○ arguable case on the merits
○ balance of convenience, keeping in mind:
■ applicant should show the existence of assets
■ there should (but not must) be evidence showing a real risk of disposal or dissipation so as to render moot any judgment.
Anton Piller KG v. Manufacturing Processes Ltd., 1976 House of Lord
Issue
● how does one search a location for documetns in a civil trial?
Facts
● this is a denning trial
● AP is a company of high reupte that are involved in the computer industry and have invented a new part
○ MPL are a British company which is AP’s agent
● AP finds out MPL has been secretely selling plans and confidential materials to AP’s competitors
○ they want to get an injunction to stop further leaks, but are worried that if MPL gets notice of the application, they will just destroy all the documents and evidence, so no discovery could take place.
Analysis
● No civi court can order a search into someone’s home
○ no constable or bailiff can burst down a door or anything
○ but this isn’t a search order
○ it authorises entry and inspection with the D’s permission
■ however, if we don’t greant permission, he’s guilty of contempt of court
■ so its basically a search warrant in disguise
● an order to search can be made ex parte, but only in key situations
○ whhere it is essential that the applicant should be able to inspect to allow justice to be done
○ if it is likely if the adverse party were notified, he would destroy vital evidence
○ when the inspection would do no prejudice to the adverse party
● P must act with circumstpection
○ should be attended by a sliciotr, and should give D a chance to consult a lawyer
○ D must be allowed to contest the order
○ P cannot force their way in if D refuses, they can only apply for contempt after the fact
● puts pressure on the adverse party, but doesn’t force in per se.
● so order granted.
● but these orders will be rare and available only where
○ extremely strong prima facie case
○ potential or actual damage must be very serious
○ must be clear evidence that the adverse parties has in its possession incriiminating documents and there is a real possibility they may destroy the evidence before an iner partes application could be made.
● the order is an order on the D in personam to permit inpseciton
○ he may refuse at peril of being found in contempt
Ratio
● Anton Piller order available where:
○ extremely strong prima facie case
○ potential or actual damage must be very serious
○ must be clear evidence that the adverse parties has in its possession incriiminating documents and there is a real possibility they may destroy the evidence before an iner partes application could be made.
● it is an order to allow inspection which may be refused, but only on the pain of beng found in contempt.
Inspiration Management v. McDermid St. Lawrence, 1989 BCCA
Issue
● When is a summary trial available?
Facts
● MG is the principal owner of IM and WR, all three parties are the Ps.
● MSL is a brokerage house and its representative W are the D
● P had accounts with D
○ some shares in dragoon were endorsed for transfer
○ D sold some of them in a bad way I guess.
● P wants a summary trial, but couldn’t get it.
Analysis
● TJ said summary trial only available where it is clear that a trial in the usual way could not possibly make any difference to the outcome
● summary judgment has long been available where there is no defence to the whole or a party fo the claim, or if there is no merit to the whole or a part of the claim
○ not to decide whether there is a question of fact or law, merely whether there is a bona fide triable issue.
○ but this didn’t come up much since most people can plead at least an arguable case
● so R18A was added to authorize a judge in chambers to give judment in any case where he can decide disputed quetions of fact on affidavits
● so under R 18, can only give summary judgment where there is no bona fide triable issue
● under R 18A, the court tries the issues raised by the peladings on affidavit
● so R 18A can apply even where there is a triable issue or arguable defenec
○ so must be careful, but if court can find the necessary facts to reach a conclusion, it may do such a summary trial
○ the judge may refuse to proceed if he cannot find the facts necessary to decide the issues of fact or law, or if it would be unjust to decide teh issues raised on the application
○ just because different affidavits are contradictory doesn’t mean summary trial unavailable
■ it all depends on the quantity and quality of the materials available.
● while just results are paramount, the volume of litigation before the courts, the urgency of some cases, and the cost of litigation do not always allow a full trial with all the traiditional safeguards, particularly where a just result can be obtained through a faster and cheaper procedure
○ R18A does substitute other safeguards
■ 14 days notice of the applicatoin
■ chambers judge cannot give judgment if he cannot find the neessary facts to decide the issue of fact or law
■ chambers judge has the discretion to decline to give judgment if he thinks it is unjust to do so, even if he des have enough facts
● in deciding whether it would be unjust to give judgment, the CJ may consider the amount involved, the complexity of the matter, its urgency, any prejudice likely to arise by treaosn of delay, the cost of bringing the trial forward in the conventional way, etc.
● summary trial may be brought even if one side opposes it
● some issues may be decided summarily while others may need live witnesses
● just because there are conflicting affidavits does not require a trial
○ a judge should not decide an issue solely based on conflicting affadivts, even if he prefers one to the toher
○ however, other admissible evidence may make it possible to find the facts encessary for judgment
○ or the CJ could order corss-examination on the effidavits, or he could order the deponents to appear live to be corssed, etc.
● it is important for counsel to bring an appropriate measure of skill to preparing the affidavits, since we don’t want to just dump a huge volume of documents on the CJ
● so the CJ did the wrong test- a summary trial may well have been appropriate here
● there was a contradiction in affadavit, but there were other possible remedies other than a full trial
● Lambert JA gives further insight
○ 18A not intended to pretvent justic
○ CJ must be able to find the facts neecssary to decide the issues of fact an dlaw
■ not just picking between affadavits or hypothehical facts
○ judgment should not be given under subrule 18A without asking
■ has any party been denied an opportunity to produce relevant testimony?
■ Is there a conflict in the evidence, which the judge cannot readily resolve, on a point of fact that could affect the result?
○ if the answer is yes to either question, the cas is not ready for judgment
Ratio
● Summary trial is available in order to expedite the process
○ Judge tries the issues of fact and law on affidavit
● if the judge is based on the affidavit unable to find the necessary facts to decide the issues of fact or law, he cannot give judgment
● the judge has the discretion to decline to give judgment if he thinks it would be unjust to do so
● conflicting affidavits do not make summary trial impossible
○ must find other evidence that supports an affadivt, or you could order a cross-examination by affidavit, or you could order a live crossexaimination fo the depondent.
● a speedy trial may not be perfect justice, but imperfect justice is better than no justice at all
Chu v. Chen, p. 2002 BCSC
Issue
● When is an issue unsuitable for an 18A determination?
Facts
● Chu and Chen were developing land together
● Chu fave chen his interest in exachange for post-date cheques
● Chen began construciton but ran out of money, with unpaid workers getting liens against he property
● Chu wanted to cash but they were not honored
○ wants vendors lien or equitable mortgage in the amount of the cheques
○ want delcaratory judgment
○ Chen says Chu waived right to remedy
● Chen is also claiming their former lawf irm, CL was negligent in a third party claim
● Chen is also claiming against the Chus personaloly for conspiry for breach
Analysis
● before 18A, you get get dummary judgment under R18, where there was no defence or no merit to claim
● under R 18, the court does not decide questions of fact or law but simply decides whether there is a triable issue
● under 18A, the hearing judge may enter judgment following an application, even though some of the facts may be disputed and the law may be in conflict
○ intent was to weed otu cases which do not require a full scale trial
○ a quick fix intended to avoid lengthy delays in disposing of unmeritorious defenecs or claims
○ when 18A came into existence, tehre were long delays, and cases were often bumped due to over booking
○ 18A determinatio idd not require an application for a hearing or a booking date, so no danger of overbooking
○ initially went well, rarely contested issues of fact requring extensive research
○ but now icreasingly numerous and complicated actions are being decided under 18A
● this case shows the delays in the civil system
○ 5 years after the P filed their writs, this case is coming to trial
○ where there is a case management system, like in the US, things move much faster
○ BCSC does not yet have a case management system- instead, the parties to the case control the pace of litigation
■ if we had case management, we probably would’t need an 18A summary trial
○ often people will ask for an 18A determination even where there are complicated issues just to get things over with
○ but this flies in the face of hundred of years of progress designing a just civil trial system.
■ it may well be if tit wasn’t for 18A we would have enough pressure to update the trial system as it has been in the US and the in the UK
■ there they have rules speeing things along
● parties must disclose names of witnesses before trial
● allow each part to depose all the other party’s witnesses
● postpone interlocutory appeals until after the trial
● compel discovery of insurance policies
● etc
● There are a lot of defects in the Summary trial system
○ affidaivts are not in people’s actual words, but the drafter’s best interpretation of the deponents words
■ often contain arguents dressed up as testimony, or they may add hearsay, requiring the CJ to parse out the admissibel from the inadmissible.
● that happened in this case
○ often it will be impossible for the CJ to determine whether the issues are suitable for an 18A determination until long after the hearing is over, because hearings are compressed as much as possible
○ but at the same time, 18A determination are still long and ddifficult for the judges who must examine all the affidavits, authorities, research, and writing
○ and if at the end the CJ decides 18A is inappropriate, this is all wasted time, and the parties will have to get to the back of the line for a real trial
○ plus this is all very private and non-transparet
■ orindary citizens are not going to sit their watching lawyers discuss points of law based on material the citizens have never seen
○ may end up with three proceedings instead of one
■ the initial 18A hearing, which ends up being dismissed for unsuitability
■ then there is the CA appeal of the dismissal
■ Then finally there is a conventional or real trial
● plus, judges are having to do more an dmore work, working longer years and longer days.
○ plus we now have part-time supernumerary judges in addition to regular judges.
● since the 18A hearing is so brief, the judge has to spend a lot longer review and thinking about it compared to a regular trial, where they can digest what they see and what the witnesses are saying as things move along.
○ and often not enough time is budgeted for reading, research and writing
○ which means it is hard to come to conclusions on complex issues
○ plus judges have a lot of other responsibilities
■ lawyers education programs, seminars, committees, etc.
● and judges here have way fewer support staff as compared to the US, and some other candian jurisdictions
○ sharing one law clerk with about 4 or 5 other judges.
● So in this case, was the dispute fit and appropriate for an 18A determination?
○ there were very long pleadings - 45 pages
○ about 400 pages of affidavits and exhibits
○ 100 pages of disvoery material
○ 75 pags of legal argument
○ 3 bound volues of legal authority, around 900 pages, few of which were mentioned.
○ going to take 20 to 30 days to absorb all of this.
○ so based on all this, 18A is unsuitable and being used for something other than its intended purpose
● 18A was not meant to apply to a dispute involving a lot of material, a lot of research and writing time.
● further, even where suitable for 18A determination, a Judge has the discretion to decide it is unjust to decide the issue on an 18A application
○ may be unjust where the complexity of the action is in issue
○ in this kind of case it would be unjust to decide the issue without hearing from witneses, perhaps.
● then gives some guidelines for appropriate lengths of submission
Ratio
● there are a lot of problems with the 18A system, and its existnece may be delaying or preventing real reform
● 18A is not intended to be used as a short-cut to judgment for complex issues
● based on the amount of time jduges actually have, complex issues involving a lot of reading, writing, and research may well be unsuitable for determination by summary trial.
● prof describes this as a biased view of summary trials
Western Delta Lands Partnership v. 3557537 Canada Inc. #1, 2000 BCSC
Issue
● How does a preliminary application to find a summary trial unsuitable work? When will it be granted?
Facts
● WD alledges CD and S breacehd the terms of a partnership agreement aimed at developing lands on the burns bog
● WD says CD and S agreed to pay WD moeny once the government advanced them a loan, secured by a mortgage over the alnd
● and agreed to get all the governemtn approvals
● WD wants summary trial, CD and S say its unsuitable.
Analysis
● 18A was introduced to expedite approprite cases, but summary trials are growing incresaingly complex and costly.
● 18A may be used to resolve particular issues, but should not be brough close to trial in respect of an issue that is not entirely severable from the reamining issues.
● parties may bring a preliminary application as of right to determine the sutiability of a case for summary disposition
○ the court may adjourn the application, or dissmiss the application for summary trial on the basis that it is not suitable for disposition, or tha tthe application would not assist the effecicient resolution of the proceeding.
● so this rules 18A(8) aims to short-circuit long and expensive 18A hearings that are doomed to fail
○ but it does not necessarily lead to increased efficiency and economy in the litigation
○ while a preliminary application should be brought where a summary trial is clearly inappropriate, chambers judges have imposed a heavy onus on the applicant to demonstrate that the issues should not be decided summarlily
● 18A(8) has the potential to impose yet another costly layer of litigation on the parties
○ if the preliminary application fails, and then the summary trial fails to resolve the issue, the parties will have incurred far greater expsne than had they simply proceeded to trial.
● so an 18A(8) application to have a summary trial denied should be refused unless one or more of the following circumstances apply
○ the litigation is extensive and the summary trial heraing itself will take considrable time
○ the unsuitabiity of a summary determination of the issues is relatively obvious: e.g., where crediblity is a central issue
○ it is clear that a summary trial involves a substantial risk of wasting time and effort and of producing unnecessary complexity
○ the issues are not determinative of the litigation and are inextricably interwoven with issues that must be determined at trial
● 18A(8) may be more useful where a single judge has conduct of complex litigation, and hears all the litigation
○ because then he won’t have to rehear stuff he heard at preliminary hearings, and won’t be bound by prior decisions he disagrees with
○ so many of the difficulties inherent in hiving off isseus can be dealt with by having one judge here all of the applications, including prelimanry applications, summary trial applications, and trial applicaitons, and can assist counsel in the orderly and effiicent management of pre-trial procedure.
○ so appoint case-management judges.
● Discussion of 18(A)
● Suitability
○ consider the damages in issue, complexity, urgency, potential for prejudice by delay, the cost of conventional trial, the course of the proceedings, etc.
● complexity of the matter
○ P says simple, D says complex
○ P says just a debt action, D says there are all sorts of contractual and partnership elements
■ P says a lot of this is just a technical defence without any true merit.
● damages
○ pretty darn hgih, which is a consideratio but not determinative
● Credibliity issues inherent in the claims and defences raised
○ P says none, D says a lot.
○ D says where the issues are complex and are based on actual knowledge and actual good faith, summary trial inappropriate
● stage of proceedings
○ there has been an exchange of documents and discovery
○ some witnesses have been canvassed, some more are refusing to talkk which may require a rule 28 order
■ focring third party examination
○ if these witnesses are necessary and continue to refuse to talk, summary trial will be inappropriate.
● urgency of the matter
○ P says that the project needs a quick cash injection or will collapse altogether.
○ P says D may be going insolvent too, so needs to get judgment quickly
○ D disagrees, and says there is no great hurry
● basically, because while D has some good defences, everything will be heard by this one judge, no harm in going to summary trial
Ratio
● 18A(8) is a preliminary application to determine whether the issue is suitable for an 18A determination
○ the court may adjourn the application, or dissmiss the application for summary trial on the basis that it is not suitable for disposition, or tha tthe application would not assist the effecicient resolution of the proceeding.
● the danger of further complicating the summary trial procedure may be remedied by having one judge deal with all of the applications and proceedings, since this minimizes the prospect of inconsistency and duplication of evidence.
● ADD FACTORS FROM ANALYSIS
Western Delta Lands Partnership v. 3557537 Canada Inc. #2, 2000 BCSC
Issue
Facts
● WD alledgest that D breached a partnership agreement to develop Burns bog
● WD says this is a straightforward proceedintg that can be dealt with by summar trial.
● D says it has a ton of defences
● SO the question is which issues, if any, should be decided by summary trial?
Analysis
● Summary trials are not typically well suited to complex cases
● these proceedings do strain the boundaries of suitability, but most o fthe issues can and should be reoslved summarily
○ it would be unjust to require the P to wait for a lengthy and expensive trial years away just because the D has raised a shitload of defences, some of which are spurious
● there have been a lot of prelimiary applications, some of which have required the re-hearing of evidnce
○ this judge is going to hear all of the proceedings from now on so hopefully that will minmize fututre overlap.
● a summary trial may lead to judgment if the court can find the necessary facts on the evidence to decided disputed questions of fact or law, and if under the circumstnaces it would be jsut to decide the issues summarily
○ there are a lot of princiles underlying trials, including both expediency and justice, and sometiems they conflict
○ so you’re not going to get everything.
● D has a lot of complaints here, claiming they need a full trial to poperly develop their defences
○ they say they haven’t had enough time to prepare the case and obtain information and XW
○ they say there are important issues of credibility require viva voca testimony
● The TJ finds
○ no issues of credibility
○ urgency given the imediacey of P’s financial obligations
○ D’s claim that it has not been able to obtianed evidence of crucial witnesses is untenable
■ rule 28 was used to allow examination to determine whether 18A would be appropriate
■ while F wouldn’t testify, the idea that he was an “agent” of the P is untentable
■ the other witness was examined and cross-ed
■ the witness testimony is in no way critical to the outcome
● so it is possible to find all the issues but one, and it is not unjust to do so.
Ratio
● I guess that you can decide some issues summarily, and some by trial
● shows the need to have a single judge decide all the issues.
● note how the judge cuts through the bullshit defences and findsit makes sense to proceed summarily based on the actual issues
Prevost v. Vetter, 2002 BCCA
Issue
Facts
● AP was seriously injured when in a car crash
○ DV was driving the car
○ D are joint defendants who owned the car where DV and AP were at before the car crash
○ they were drinking on that property, and DV was drunk when she left.
● this began by summary judgment, where the CJ found that D owed a DoC and D breached the SoC
○ causation, damages, and contributory negligence where to be decided in a subsequent trial if P won the summary trial
● DV did not participate in teh summary trial or applea, although her testimony on discovery was used by both side
○ she denies that the accident was due to drinkihng
● D say that SoC and DoC should not have been decided summaritly
○ it was not possible in this case for the summary judge to determine DoC, SoC or breach without also determining causation
○ so this prejudices D in the ful trial, and it wil be embarassing if the trial jduge comes to a different conclusion, since hte summary trial will have to be overturned.
Analysis
● CJ found DoC based on the fact that the D allowed their house to be used for teenage drinking parties, and that they had developed a paternalistic relationship with the drinkers
○ then the CoJ foudn they had breached that SoC by faiing to supervise the party as they often did.
○ D did not attempt to find out whether the teenagers were too drunk to drive.
○ In the past, D had intervene when people tried to drive drunk, instead she left it to her son to manage
○ CJ says that D had the ability and duty to exercise control, and did not, so breached the SoC
● But this is problematic, because if the SoC was breached, this implies that DV was driving drunk, and DV denies driving drunk which is her defence to causation.
○ in order to find a DoC was breached, he had to find that the DV ability to drive was impaired by alcohol and that the D should have foreseen she intended to drive and that her driving would be a risk to people in her car.
● so CJ could not decide the issues placed before him w/r/t to SoC and DoC without finding facts that are important to the issue of causation
○ and since the parties agree that causation is a live issue, they should not have asked the TJ to determine SoC and DoC on a summary trial,a nd he should not have done so
○ DoC and SoC were not issues to be suitably determined on a summary trial
○ if the TJ ultimately finds diferently on cuasation, a lot of the summary trial would have been a waste.
○ it would be unfair to saddle the causatio hearing with findings of fact made in summary proceeding in which DV did not fully participate.
● finally, whether party hosts ought to be liable for the things done by their guests after they leave raises “important, rare and unsettled question of laws” which should not be addressed summarily
Ratio
● where an issue requires a finding of fact that may impact on a later full trial, that first issue should not be decided summarily in isolation, since don’t want to bind the full trial judge
● important, rare, and unsettled questions of law should not be addressed summarily.
9-6 (old 18) Summary Judgment
● a person who has filed a notice of civil claim may apply for summary judgment upon recieving the the responding pleading
● the D must show
○ the pleadings do not raise a cause of action
○ then apply under this rule for judgment dismissing all or part of the claim
● if the court is satisfied there is no genuine inssue for trial with respect for a claim or defenec the court may pronounce judgment or dismiss the claim accordingly
○ if qunatum is the only issue, may order a trial on that issue or pronounce judmgment with an order of accounting to determine the amount
○ if the only issue is a question of law, may determine the question and issue the judgment accordingly
● costs may be awarded
● if the court determines that a party has applied in bad faith or simply to delay, the court may award special costs.
9-7 (old 18A) Summary Trial
● a party may apply to judgment on a civil claim where a repsonse has been filed, or a counterclaim/third party claim where a response has been filed
● summary trial application must be heard at least 42 days before the scheduled trial date
● evidence may be
○ affidavits
○ answer to interrogatories
○ evidence taken on an examination for discovery
○ admissions
○ XW report
● a party applying for summary trial must file with the application all the relevant affidavits, and XW, and may not lead further evidence except as rebuttal, or to respond to a notice of application filed/served by another party, or with leave of the court.
● if a party indends to use evidence takeon on discvoery, interrogatories, or admissions, it must give notice of that fact to the other side.
● The court may on a summary application adjourn the application, or dimsiss it because
○ the issues re not suitable for dispostion under this rule)
○ the sumary trial will not assist the efficient resolution of the proceeding
● on hearing a sumary trial application, the court may
○ grant judgment unless
■ the court is unable based on all the evidence to find the facts necessary to tdecide the issues of fact or law
■ or the court decides it would be unjust to decide the issues on teh application
● if the court is unable to grant judgment, it may order a case planning conference or a trial proceeding
10-4 (old 45) Injunctions
● applications for ptr-trial injunctions may be made whether or not a claim for an injunction is included in the relief sought
● an application for pre-trial injunction may be made prior to the start of a proceeding
● if the application for injunction is made without notifying the other party, the injunction may be graned on an interim basis.
● injunction must be imposed by an order of the court
● the party seeking an injunctio nmust contain an underptaking to abide by any order the court makes as to damages.
● in any proceeding where an injunction was or could have been claimed, a party may apply by petition after judgment to restrain the other paty from repeating or continuing the wrongul act established by the judgment.
|Costs and Access to Justice |
1. Topics:
Party and party costs and special costs
● costs are aimed at compensating the victorious party and used as an incentive to promote efficient, orderly, fair and proportionate administration of justice
● costs are highly discretionary, even for special costs
● judges aren’t that interest in hearing about costs, so you wlil have a very small window to ask for them and argue for them
● definitions
○ costs follow the event
■ whoever wins the application gets the costs
■ “the event” is the application
■ also known as “costs in any event of the cause”
○ costs in the cause
■ whoever wins overall gets the costs
○ costs to the P/D in the cause
■ if the P or D wins at trial, they will get paid- otherwise, too bad.
○ costs thrown away
■ adjournment, usually one party has to compensate the other for wasting everyone’s time
○ lump sum costs
■ just a rough and ready assessment of costs rather than a process of tallying up events
● costs following the event is the norm since it helps avoid frivolous applications
● costs in the cause are simpler and avoid the judge going through the process
○ the master says I don’t want to have to deal with this now, I will just kick it down to the TJ’s ultimate finidng.
● costs normally assessed via a tariff
○ you tally up all the expense and steps taken
■ the other side may dispute this
○ then the registrar issues orders about costs
● payable fortwhith
○ rarely used, but means you must pay immediately
○ may be used as a slap on the wrist
● payable after assessment
○ typical
○ quite delayed
● no costs
○ if the judge is silent, costs are for the event
○ btu the judge may order that neither side gets costs, usually because everyone was acting badly
● Bullock Order
○ order where P owes D1, but D1 owes D2, so P pays D2 directly
● Tariff of costs
○ this is in the appendix
○ various tasks have various point values, which are then assessed on a scale based on the complexity of the trial
○ costs for things like photocopies, flying in XW, are all paid in full - only legal costs are covered by the tariffs
○ tariffs only cover around20-30% of actual costs, due to rise in expense of litigation and the tariff just being stingy
○ typically both sides contest and try and argue the other side down to al ower assessment
● in the US, there are no costs awards
● in the UK, its typically close to full indemnity
Special Costs
● close to actual costs-like 90%
○ not following the tariff
● quite exceptional, but not as much as it used to be
● aimed at deterring improper/inefficient/rephrensible behavior of a party
● classic examples
○ one party makes serious and unsubstantiated allegations against the toher party of fraud, dishonesty, misbehavior during litigation (destroying evdience, perjury) etc.
○ may also include misbehavious before the litigation- if the a party was a fraudster in the facts the law suit was based on
● difficult, because hard to prove and hard to collect
○ some of the evidence typically needed to prove special costs is usually privileged.
○ or you have to open your own files to show how much you were really spending.
Special Costs against the Lawyer Personally
● extremely rare, but possible
● notvery wise to apply for this order against another lawyer sicne you will get a reputation and it may well come back and bite you.
Offers to settle
● under the new rules, if you make an offer to settle before judgment, and after the fact the court finds the adverse party ought to have accepted that offer, you may be awarded double costs.
○ this used to be basically mandatory, but more discretionary now
○ cannot be a token some
○ must be a reasonable offer that the other party should have reasonably taken.
● pretty much always worthwhile to make a formal offer to settle
○ some view it as a sign of witness, but you may use it as a strategic offensive move in order to cow your opponent with the spectre of double costs
● double costs are simply double the tariff.
Security for costs
● rarely granted against a personal plaintiff, since its’ not really fair to require an individual to have to bring up a few million just in case they lose
○ it may shut down a lot of personal plaintiffs right off the mark
○ if the P is a company with no attachment to BC, more likely, or if its in shaky financial shape
● Must be able to show that there is some plasuible strong defence to the claim and that there is going to be an issue about collecting costs
○ but if the P’s cause doesn’t smell fishy and has no apparent weaknesses, you probably aren’t going to win this applicatoin
Interim costs
● this is harder than it would appear from the Okanagan Indian Case, as we see in little sisters
● it must be truly necessary in order to bring the issue to trial in order to get an interim costs award
○ must have looked to borrowing, fundraising, other funding sources
(e) Contingency fees
Costs in class proceedings
● the usual costs rules apply in Ontario and most jurisdictions
○ class proceedings may lead to a cost award against the representative client
● in BC once the class is certified there are no awards of costs, though prelimary stuff prior to certification is subjet to normal rules, since not yet being certified it is merely an ordinary lawsuit
2. Readings:
Fee Shifting in Canada
● in Canada losing party pays a portion of the winner’s legal costs- fee shifting
○ this has created a whole area of law
○ very important in driving the results in litigation
● Canada mid-point between UK and US
○ UK
■ loser pays all the costs
○ US
■ each side pays own costs.
● aimed at compensating the winning party for the cost of legal representation
● only a portion
○ based on expercted market share
○ rationally proportionate to the matter litigated
■ amount of claim
■ amount of actual judgment
■ complexity
■ importance of suit
● Courts have discretion with respect to costs, but guided by statute
● BC Supreme Court Rules 57
○ various principles underlying cost awards
○ consider
■ experience of the lawyer for the party entitle to cost, and how long the lawyer worked and how much he charged
■ the amount of costs an unsuccessful party could reasonably expect to pay
■ amount claim/amount awarded
■ apportinment of liability
■ complexity
■ importance of issues
■ conduct that tended to shorten or lengthen the proceedings
■ whether any setp was vexuation or unnecessary, or taken through negligence, mistake or excessive caution
■ party’s denial of or refusal to admit anything that should have been admitted.
○ in all cases, costs are to be fair and reasonable
● Costs awarded on Scales
○ Partial indemnity costs
■ normal level- called “ordinary costs” in BC
■ ranges from 40-75% of the actual costs typically, though not totally clear
■ again, must be fair and reasonable taking into account above factors.
○ Substantial Costs
■ exceptional, reserved only for unique circusmtances where there is truly odious behavior or a failure to reasonably settle a case.
● egregious behavior
● failure to accept reasonable settlement
■ substantial indemnity- called “special costs” in BC
■ bigger proportion- perhaps 1.5X ordinary costs.
○ Full indemnity
■ the whol legale costs
● costs may be ordered where a party conducts itself in a way that unnecessarily incresaes time and expense
○ aimed at avoiding vexatious and frivolous behavior
○ can be awarded where
■ uncooperative
■ motion for summary judgment which loses typically subject to substantial idemnity
■ similar sanctions where someone attacks intergrity without being able to prove it.
● statute has mechanisms aimed at promoting early settlement
○ if a party fails to accept a resonable settlement offer before trial, that party is sanctioned with an adverse costs award.
○ eg.
■ D makes an offer to settle at 10, P refuses and is awarded at 7, D gets special costs from the time the settlement offer was made.
■ note this occurs even if P does ultimately win on the issue.
Calculating Costs
● difficult to precisely to predict
○ courts award on a contextual, case-by-case method
○ considering both market price and parties behavior
● once the matter is resolvd, or at the end of an interlocutory step, the parties make submissions on costs
● if matter at trial, the TJ will determine the total cost award for the entire life of the matter, including any interlocutory motions, discovery etc.
● if the matter is an interlocutory motion, the numerical value of the costs for that step in the proceeding will be set by the J who heard the motion; but those costs will only be borne by the eventual losing party
○ exception: the motions jugdge may wish to sanction particular party’s behavior via costs.
● costs may include the time the lawyers spent arguing about the costs.
● in addition to the outline factors, Courts are alive to the need to keep access to just affordable.
● courts do not expect parties to take the most expensive or least expensive counsel.
Barlow v. Citadel General Assurance Co. 2008 ONCJ
Issues
● Should there be a bonus paid to counsel who take a case on contingency?
Facts
● D is insurer, paid benefits to P
○ decides P no longer disbaled, wants the money back.
○ P wins, denied aggravated and punitive damages.
● issues is about costs
○ P counsel wants a premium for taking the case on contingency, because otherwise P would never have been able to retain serivce.
○ P also wants special damages because damages were better than the offer to settle.
○ D says no premiums for contingency.
○ Also, P put forward many offers to settle- you cannot claim special costs from the first offer to settle if you make more offers, since subsqeuent offers imply the cancellation fo the prior offers.
Analysis
● Rules do not make the risk of non-payment a factor for determining costs
○ no preimum for contigency.
● D was awarded costs, or no costs were awarded, in a number of pre-trial motions
○ P is claiming them now as following for the action
○ J here says no, if you didn’t like those orders you should have appealed them.
● P also overbills somehwat
○ many of the cases pleaded turned out to be directed towards the issues of aggravated/punitive damages which failed.
○ counsel also way over cited cases to support simple propositions
○ XW charged, but never called- no money
● Amount claimed and amount recovered
○ including aggravated/punitive damages, P claimed 3 milion but only got 100K, since the claim for neglgience was struck, as where claims for aggravated damages
■ so P got 100K out of a claim of 3000K
○ D says the costs should be proportionate to the actual recovered amount
○ awarding costs proportionate to the amount claimed
○ costs should be fair and reasonable for the defendant party to pay given the circumstances of the case
○ not going to award costs that amount to way more than the amount awarded
● besides, P needlessly complicated and lengthened the proceeding
○ brough unnecessary motions, claims for aggravated/punitive damages, etc.
○ must take into account P’s poor litigation
● In terms for prior offers, where a party makes a subsequent offer it implies the cancellation or withdrawal of the prior offer
○ so only the latest offer counts.
Ratio
● P’s bad conduct matters in assessing damages
● damages are goign to be fair and reasonable, and more closely tied to the amount recovered than the amount claimed
● subsequent offers amount to cancellation fo the prior offers, so only the most recent offer counts.
Kerr v. Danier Leather Inc. [2007] SCC
Issues
Facts
● D issued a prospectus which did not relect a fall of sales
● P is a representative of a class of P who lost omney as a result of the misleading prosepctus.
○ claiming it did not contain a material fact.
○ D says it a prospectus is just an opinion, and not a fact.
● anyhoo D wins, this is about costs
● P says that he shouldn’t have costs awarded against him.
○ when it comes to class actions, general concerns about access to justice justify a departure from the ordinary rule that costs follow the event.
Analysis
● while P is ouraged and clearly wants to take D to account, he also has major personal financial interes in the outcome, since he had a significant number of shares
○ would have made a lot of money had the judgment came out his way
● Plus P is wealthy
● While the potential awarded would never have been worth the cost ot P personally, those who engage in expensive litigation can expect to have costs awarded.
● plus D spent a lot of money defending themselves.
● This isn’t a test case, nor a novel point of law
○ at the heart of the case is a straightforward shareholder dispute over a lot of money requiring the application of well settle principles of commercial litigation.
● no magic in the form of proceedings (class) which makes it defacto exempt from costs.
● there is a matter of public interest here, but this is certainly a dispute where private commercial interests predominated
○ can’t convert a normal private dispute into a class action and get out of costs
○ plus, class action already works as a pretty serious threat against commercial parties.
● so class actions are not going to always get parties out of costs.
● P put D to a lot of expense, gonna have to pay up.
Ratio
● the form of proceedings will not be determinative when it comes to costs
○ just because you proceeded as a class does not mean you will be free and clear with respect to costs.
Walker v Ritchie 2006 SCC
Issue
● deals with the issue of risk premium on costs (contingency) and the role of contingency fees/fee shifting more generally.
Facts
● P suffered a serious injuries in car crash
○ D and his employer here sued
○ denied liability
● long, complex litigation
○ P made offer to settle, but D refused
● D found fully liable, P got a big awarded, partial indemnity (special costs) from the date of offer settlement to date of judgment.
● TJ awarded a risk premium, since P’s lawyer working on contingency
Analysis
● between P and Client, fees may be paid contingent on the results obtained
○ if the P loses, lawyer gets no money
○ if P wins, lawyer gets a portion of the damages, or a fixed fee.
○ so P iuncurs the risk of non-payment
○ to compensate for risk, contingency fee typically higher than it would otherwise be
○ contingencies used to be banned, since it was deemed improper for a lawyer to have a financial interest in the outcome of litimgation, but now allowed.
○ this was always allowed in a way for plaintiffs- clients could always pay the lawyer of the damages they were awarded.
● Some cases had awarded a premium where lawyer had taken on risk of non-payment
● rules set out how costs are to be awarded
○ various scales, guidelines
○ fact that an offer can lead to special costs.
● risk of non-payment to P’s counsel is not an enumrated factor under the rules.
○ could it fall into “any otehr matter relating to the question of costs?”
○ broad rule, but not unlimited
■ cannot use it to bring in totally new considerations, when the appropriate consideratinos are all enumerated in the statute.
● wouldn’t fit in that category anyways, since it would apply only to P, and all the other considerations are neutral.
● distorts the course of litigatin- the parties to the action ought to know how much it is worth to them to proceed. They can predict the costs against them
○ contingneyc is an arragement between P and counsel, and D shouldn’t have to take that into account.
○ it is outisde of the D’s knowledge, and outside of the D’s control
○ D’s costs shouldn’t be higher simply based on the private arrangment between P and counsel.
● Costs should apply to things that hte parties know and control, not private arrangments.
○ since D can’t necessarily know about the arrangement between P and counsel, D can’t accoutn for the risk of engagin in litigation
■ D unable to consider exposure to risk.
■ unable to consider risk of refusing to settle.
● US- no premiums
○ risk depends on the factual/legal merits + difficultly of establishing those merits.
● risk premium gives D a greater incentive to settle, even when D may have a meritorious defence
○ if P can offload the cost of a risky case onto the D, gives P an incentive to pursue riskier cases.
● Difficulty of case is already taken into account in terms of the amount of costs the judge will order.
● while in very exceptional circumstances, suchs as Okanagan Indian Band, the D may bear the cost of ensuirng the opponent’s access to justice, this is not such a case.
○ must be no other realistic way to bring the issues to trial
○ personal injury cases offer the prospect of damages, so counsel can get paid.
■ if case is hard, can do it by continegncy
■ the ability to operate on contingency, or charge higher fees for riskier cases, allow competent counsel to take on cases of impecunious clients.
○ if there are no prospect of damages, can use pro-bono or legal aid to ensure access to justice
Ratio
● risk premium provides perverse incentives for D to settle, for P to pursue risky claims.
● risk premium makes it difficult for D to guage its exposure to risk
● so no risk premiums.
Notes on Walker
● mostly has ended the practice of risk premiums.
○ some courts contiue to award risk preimum to lawyers who take on meritorious, risky cases
○ basically back-dooring it by saying the award is due to the lengthy, complex nature of the litigation.
● costs can get complicated where there are multiple parties
○ Bullock order
■ orders unsuccessful D2 to reimburse P for the costs P had to pay to D1
○ Sampson order
■ orders D2 must pay the succseful D1 costs directly
Disciplinary use of costs
● costs normally aimed to avoid unmeritorious litigation
● can use costs to discourage the absue of the system, to regulate the conduct of parties, and to a degree, ensuring equality by redicrecting some of the costs of litigation
○ but if the court wants to discipline a successful party, all or part of the costs may be disallowed
○ if the court wants to discipline the succesful party, may order special costs or full indeminty.
● this may occur where the aprty has cuased costs to be incurred without reasonable cause, or to be wasted by undue delya, negligence or other default.
○ typically fraud or dishonest conduct.
○ reprehnsible, sacandalous, outrageous conduct
○ an unsuccessful attempt to prove fraud does not per se lead to this kind of cost, but allegations of fraud and dishonesy are taken very seriously
Standard Life Assurance Co. v. Elliott 2007
Issue
● are dsiciplinary cost orders an effective means of discipline?
● Do they effectively allocate responsibility between the client and the lawyer?
Facts
● P is insurer, wants to get back overpaid dsiability benefits.
● D counterclaimed, including against accounting service and all prior and past employees who had every seen the file.
○ third-party claims all dismissed
○ no cause of action, abuse of process since taken solely for procedural avandtage
● D wants costs to be paid on special costs by lawyer personally, or failing that, the client.
○ there is some conduct showing unreasonable costs
○ threatenting to bring a class
○ deliberately withouholding evidence
○ refusing to discsus settlement
○ third-party claims that were baseless, etc.
○ Pclient says she agrees with what Plawyer said, and it was all done on her express instructions
Analysis
● substantial indemnity may be appropriate where one party has behaved in an abusive manner, brough tproceedings wholly devoid of merit, and unnecessarily run up the costs of litigation.
● costs should take account of behavior which lengthens uncessarily the proeeding, and where actions are vexatious or unnecessary.
● P clearly added the employees as a pressure tactic to encourage settlement, and to 0.0obtain discovery
○ P says this was retaliation for D’s failure to disclose
○ but there are remedies in the rules for failure to disclose, instead Pjust added every employee that had anything to do with P’s file.
○ clearly unnecessary, deserves increased level of costs
● P also engaged in much lengthy and repetitive correspondence
○ twice ammended third party claim, further costs and expense.
● P was given the chance to drop the undreasonable claims, but did not do so.
● As a result of the third-party proceedings alone, D has paid some 40K in legal fees. This kind of behavior should be discouraged, so special costs will be awarded
● Since Pclient admitted that it was on her direction, she will be liable- she knew and approved what her counsel was doing.
● but what about the solicitor? [Ps]
● Ps says an award againt him personally will have a chilling effect on the plaintiff personal injury bar.
○ he was just acting in his duty to his client.
○ he says the Standard life is sending a signal to the plaintiff personal injury bar not to aggressively and forcefully advocate for the clients against the insurance company.
● Lawyer’s job isn’t to do just anything the client says.
○ litigation strategy is the lawyer’s responsibility
○ the strategy that was taken was abusive, very costly, and it’s not fair for D to have to pay
○ and since P has no money, it’s fair to go after the Ps
● Plus, Ps was being more than just forceful and aggressive advocacy
○ claim against him personally is a valid attempt to curb execesses by counsel.
● Ps says in order to be found personally liable the court must find bad faith or dereliction of duty.
○ nope, rules allow personal liability where negligent.
○ not going to apply in every case of negligence though- just where exceptional circumstances.
○ should not be used to discourage lawyers from pursuing difficult or unpopular cases
○ only where the lawyer pursues a goal that is clearly unattainable or the lawyers is clearly derelict in his or her duties as an officer of the court that resort should be had to personal libaility.
● caution is critical, since don’t want to put lawyer in a position where the danger of adverse order of costs conflicts with duty towards client.
● so mere finding of negligence or abuse does not on its own justify persona liability
○ this is just the first step.
● here, Ps did not act in bad faith, and believed he had an arguable case on the point
○ he went to far though- waged a war of attrition against the insurance company, aiming for settlement.
○ Ps was using rules as a weapon against hte insurer, rather than ensuring a fair and just result.
● costs are compensatory, and the only way to compensate D is to make the costs payable by Ps
● Need to figure out how much of the responsiblity lies with Ps, and how much with Pc
○ the more Pc had to do with the decision making process, the less liable Ps will be.
○ but that’s up to Pc and Ps to sort out
Ratio
● special costs may be awarded against the lawyer personally in exceptional cases
○ there’s going to be a preliminary finding of bad faith/negligence/reprehensible beahior
○ then I think step 2 is deciding whether it would be fair and reasonable to issue costs against the solicitor.
Little Sisters Book and Art Emporium v. Canada 2007 SCC
Bastarache and Lebel
Issue
● when will an interim order be made that publicly funds litigation
Facts
● LS is a bookstore, sells porno, wants funidng by way of an interim order as contemplated in Okanagan Indian Band
○ in that case, the band had no ability to pay for litigation, and it was thought this would mean they would have no ability to protect their consittutional rights and have their case resolved
○ in that case, the Court decided a real injustice would result if the court refused to exercise equitable jurisdction to help the tribe fund the case.
● in this case LS has had decades of problems with customs.
○ wants to settle this problem for good.
Analysis
● This case is about whether the publci shoud fund the LS attempt to inquire into customs proceedings
○ this is an exceptional order made only in special circumstances.
○ just because LS has a triable case does not allow them an interim costs award
○ Okanaga was not intended to create a parallel system of legal aid to supplement regular access-to-justice institutions.
○ Okanagan will only apply where the court would be participating in an injustice against the P if it did not order advance ocsts.
● Okanagan
○ about logging rights on crown land
■ Ministry wanted natives to stop, they wanted to continue but they had no money to get a lawyer
■ but if they had to stop logging, then they would have no money at all!
○ court decided it would be in the public interest to see the matter resolved
■ couldn’t just abandon the litigation
■ so the Court held the public interest in the litigation justified a structured advance sufficient to move the case further.
○ this was not truly novel- cost awards are often aimed at moving forward meritorious litigation
■ but generally the rule is always that the costs follow the action.
■ “costs follow the cause”
● BC retains discretio to reach other decisions
● Must look at each case individually
○ no broad committment to fund all people who want access to justice
○ brinign an issue of public importance does not automatically entitle the litigant to preferential treatment
■ however, a losing party which raises a serious legal issue of public importance will not necessarily bear the other party’s costs
● Test for Okanagan Advance costs order
○ P must show it cannot pay for litigation and has no other realistic options for bringing the issues to trial
○ the claim must be prima facie meritorious
■ must be of sufficient merit that it is contrary to the intrests of justice that the litigation be abadoned for lack of resources
○ the issues raised transcend the individual interest of the particular litigant, are of public importance, and have not been resolved in previous cases.
■ not every case with a public interest dimension will be awarded advanced costs
■
● should be rare and exceptional, very high standard.
○ the private litigation system is not a public inquiry system.
○ must be in the interests of justice that advance costs be awarded
■ P must have explored all other options to get funding
● including loans, public funding options, etc.
● must commit to making a contribution to the litigation
■ different cost mechansims, like adverse costs immunity, should be considered.
○ many cases will not require any cost solution at all- these are all to be used with restraint.
○ if the matter can be settled or public interest staisified without an advance cost order, it should not be given
■ LAST RESORT
○ when the public is paying, the litigant loses some control over the progress of the litigation
■ structure will be imposed to the proceedings to ensure that the P is being economical
■ may be limits on chargeable rates, hours of work, etc.
■ should consider setting of the advance costs award against any daamges actually awarded.
○ intention here is not to equalize the scales- this is up to legal aid and so on. The intent is to ensure a basic level of assistance necessary to allow the case to proceed
■ unfairness a serious problem, but not the courts job to fix
● Application to the facts
○ consider impecuniosity last, since if it doesn’t meet the other requirements, its kinda pointless.
● Prima Facie Merit and Public importance
○ must be of sufficent merit that it wis contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means.
○ so must prove that the interests of justice would not be serve if a lack of resources made it necessary to abort the litigation.
■ not going to be met every time a person must drop a case for reasons of lack of money
■ so for in Okanagan, the Indian tribe could not afford the costs of going to trial, but could not afford to lose either.
○ here, the P has taken on the system review even though it makes “no business sense” to do so.
○ in general, it is only where the public importance of a case can be establsihed regardless of the ultimate holding on the merits that the court should consider the requriement from Okanagan satified.
● In a case like this, there is no nee dto examine inecuniosity
○ corporations may receive advance cost awards, but must show they went to all other funding options first.
○ should also consider the potential costs of the litigation
○ consider where the litigant attempted to get a loan, etc.
○ LAST resort
● only if all three parts of the test are met should the court exercise its discretion to decide whehter or not to award costs.
○ must remain senstiive to other considerations
○ in this case, even if all requirements met, it still should not have been granted.
● and keep in mind where advance costs are awarded, there will be limitations, including caps on spending which may limit the choice and number of counsel.
○ this may also have implications with respect to “last resort”
○ in a case like this one, the applicant may need to show that modifying its litigation strategy would not be more efficient
○ here P took a deliberately broad, systemic approach to its issue- not the cheapest way of resolving the issues.
Ratio
● Advance cost orders will be awarded very rarely, and only as a last resort
● Test for Okanagan Advance costs order
○ P must show it cannot pay for litigation and has no other realistic options for bringing the issues to trial
○ the claim must be prima facie meritorious
■ must be of sufficient merit that it is contrary to the intrests of justice that the litigation be abadoned for lack of resources
○ the issues raised transcend the individual interest of the particular litigant, are of public importance, and have not been resolved in previous cases.
■ not every case with a public interest dimension will be awarded advanced costs
Class Action Settlement
● particular considerations apply to settlements in the context of class action
○ since class action settlement may bind absent class members
○ there is a risk of collusion between the D and the counsel of the class
○ class cousnel gets a big cut of the settlement even if not in the best interests of the class.
○ basically an agreement where the D gets a “cheaper” settlement, and the class counsel gets an above market attorney’s fee.
■ D either paying the fee or agreeing not to context the class counsel’s application for court-awarded fees.
● basic problem is that the class clients cannot properly supervise their agent (the class lawyer).
Cheryl Reynolds v. Beneficial National Bank 2002 7th Circuit US court
Issue
● explains phenomoenon of the “reverse auction”
Facts
● various objectvtors to the settlement claim the settlement agreement is a reverse auction, whereby the defendant in a series of class actions picks the most ineffectual class lawyers to negotiate a settlelemtn which would preclude other claims agains the D
○ ineffectual lawyers are happy to get some money, and the D are happy to pay big fees since they pay less in the long run anyways.
● no proof of collusion, but the situation needed some scrutiny
Analsysi
● difficult to precisely value a litigation, particularly with respect to how likely any of the various outcomes are
○ but mroe could have been done to assess legitimacy
● the TJ abused his discretion in approving the settlement
● Guidlines
○ do not allow submissions of fee applications to happen in camera
■ if confidential information comes up, just redact it.
■ this helps scrutinize counsel
○ compensation of class counsel must be proprotioned to the incremental benefits they confered on the class, not the total benefits awarded to the class.
● lawyers of the class who are not satisfied by the settlement may appeal the awarding of fees, since their clients (the class) are not likely to do so.
○ if the money being paid was coming out of the judgment rather than from the D directly, then P would have to be involved, since it would impact the amount of the judgment
○ but here, the otehr class lawyers are asking D for some money too, which they can do without impacting on the benefit awarded the class.
● Typically law does not award costs to good Samaritans, but as here, where professionals render valuable services in circumstances which prevent negotiation and voluntary agreement, they may claim reasonable professional fees.
○ we want all the professionals involved in a class to be parties to the settlement hearing in order to keep things fair and avoid collusion
Ratio
● explains phenomenon of reverse auction
○ D settles with the worst counsel for the least money in exchange for a generous payment of fees or favorable submissions.
● solution
○ maximum transparency in hearing, involve all class counsel, not just the ones that negotiated the settlement.
Notes on Settlement of Class actions
● Role of the court as settlement approver
○ there is a reevaluation of how active the court ought to be in monitoring class settlements
○ the relationship between class counsel and the class is different as that between the normal Pc and Ps
● often we feel settlements are always preferrable to trials: “a bad settlement is better than a good trial”, even though we know trials might be a better way of getting ot the truth
○ this is particularly true in class settlement
○ this is a stiuation where the court is dealing with other people’s money- people who aren’t before the court
○ court should take a more active role inensuring fairness.
■ more managerial, less pass ‘umpiring’
● the US Rand reported suggests increased regulatio nof settlements, and increased training of judges to ensure they were capable of managing the settlement
● judges play two roles:
○ settement approval and fee awards
■ need to take more responsibility for the quality of settlements, and need to reward class counsel only for achieving outcomes worthwhile to class members and to society.
■ judges should teurn to intervenors, neutral experts, and class members for input.
■ need to keep their eye on actual legal merits and the good of the class and society.
● Some research suggests where little judicial monitoring is going on, the class counsel may get more money than all the class members combined.
○ may be some forum shopping going on
● Canada may be doing better
○ in Canada, the defendant counsel do not play a role in determining the appropriate fee for Ps out of a concen about collusion.
(b) Casebook:
Bank of Credit & Commerce v. Akbar (2001 BCCA), 2001 BCCA
Issue
Facts
● deals with costs arising from a Mareva injunction
○ related to the liquidation of BCCI
○ liqudaotrs alledged that M, a snior executive, arragned a number of appropriations of funds from BCCI
■ other Ds are all related to M
○ liquidators brough Mareva injunctio nto preserve BCCI assets that had been appropriated and held by MW
○ Ds applied to set aside this injunction
○ D wants special costs for all this.
● Liquidators applied for another Mareva injnction, which was partially succesful
Analysis
● Ds want special costs based on unfounded alledgations of fraud, failure to amke full and frank disclosure of the facts, mistatement of facts, and the use of hearsay evidence
● CJ said that fraud had been alledged, but that there was no direct evidence of fraud and a strong prima facie case had not been made out.
○ the Mareva affidavit case a “web of suspicion” over the Ds, and that P had relied on hearsay evidence
○ special costs warranted because there were allegations of fraud which don’t amount to a prima facie case
■ applications for Mareva injunctios risk injustice sa sthey are ex parte, so the applicant must be absolutely scruplous in his attention to detail and to make fiar representation of facts favouring the other side.
● special costs should normally be awarded only where there is some form of reprehensible conduct, which makes such costs desireable as a form of deterrent
● P says mere carelessness is not desrving of rebuke
○ says conduct deserving of rebuke is scandalous, reprehensible or outragesos, not mere act of negligence.
● no, behavior worthy of special costs includes carelessness
Ratio
● behavior warranting special costs does not need to be outrageous or rephrensible
● carelessness may be enough in certain cases, like in an ex parte proceeding where the upmost good faith is required.
Fraser v. Houston (see above, Week 7), p. 261
Issue:
● when may a security order be made?
Facts
● P is refusing to answer questions and produce documents showing his ability to pay a potential debt of 600K
○ if this document is prodcued, D says it would preculde P’s claim.
Analysis
● Security for costs
○ P lives in BC
■ P says this means he shouldn’t have to pay security, since it would deny him access to the court.
○ while security orders should be made rarely, the inherent jurisdiction of the court includes the ability to order a resident plaintiff to post security for costs.
○ inhernet jurisdiction is the authority of the judiciary to uphold and to protect the judicial function in a regular, orderly, and effective manner.
○ in making a secuirty order, the court should weigh the right of citizens to have access to the court
■ only should make a security order which would preclude access if there are egregious circumstnaces amounting to an abuse of prcess.
○ normally the fact that the resident P is not suffficiently wealthy to pay the D’s cost if P loses is not enough to justify an order for costs.
○ here there is at least some merit to P’s claim such that this is not a case that is necessarily doomed to failure.
○ even though there is some evidence that P has no money and is already avoiding pay off judgments, this is not an appropriate case to make a cost order.
Ratio
● security orders may be made against residents
○ if the security order would have the likely effect of precluding the lawsuit, it should only be ordered if the case is so egregious that it amounts to an abuse of process.
CFAR v. Canadian Jewish Congress (see above, Week 5), p. 120
Issue:
● when may a security costs order be made?
Facts:
● CFAR says that they were defamed by the CJC who had listed them in a brochure as a hate group
● CJC wants this action struck
● CJC says that CFAR is an Ontario corporatio that has no funds and will be unable to pay costs if this action is dismissed, so wants them to put up security.
Analysis
● Security for costs issue
○ CFAR is registered in Ontario, not BC
○ court can order security for costs against non-resident plaitniffs by discretion, if in the interest of all parties.
○ security for costs are available under the Company Act, and says that if a corporation is a P in a legal proceeding, and it appears that it will be unable to pay costs if the D succeeds, the crout may require security for those costs with the action stayed until security is givne.
○ considerations
■ probabliyt that P will be deterred by the security cost is not determinative
■ court must attempt to balance inujustices arising from the use of security: the danger of oppressing valid claims vs. the ability of poor corporations to put unfair pressure on defendants
■ merits of the action, but only if it is obvious that success or failure is likely
■ any amount can be ordered up to the full amount claimed, as long as i tis more than nominal
■ before the court refuses to order security on the grounds that it would unfairly stifle a valid claim, the court must be satisfied that it is probable the claim WOULD be stifled
■ lateness of application for security may be taken into account.
● Plaintiff’s ability to pay
○ burden of proving P unable to pay lies on D
○ D must provide a prima facie case that the corporate P has inusfficient assets to pay costs
○ D has shown that P is non-profit, no capital, relies on donations
● exigible assets
○ if D has shown prima facie that P may be unable to pay, P can avoid security by showing it has exigible assets
○ P has not shown assets or their value
● arguable defence
○ P may avoid an order of defence if it can show D has no arguable defence.
○ D must be able to show that the defence is bona fide and is an arguable case, not that it will likely win.
○ the strength or wekenss of a D’s case is a factor to be balanced with the fiancnial strenght of the P, the dealy, the prejudice ot the P, and whether the security will prevent P from brining its case forward.
○ D has an arguable defence
● Hindering of a mertiorious claim
○ once a D establishes a prima facie case for security, the court needs to consider whether undue hardship would be visited on the P
○ since here tehre is no evidence as to P’s financial status, while it appears that P may be unable to pay a security, it does not necessary follow that P would not be able to provide the security.
● so basically, on application for security for costs, once the D has established a prima facie case that the P lacks exigible assets, the P is required to respond with evidence to establish that
○ it will be able to pay the D’s costs
○ the D has no arguable case
○ ordering the secuirty will stifle the P’s action
● if the P lives in an reciprocating state which will allow a cost order to be enforced, this may be relevant since it gives the D another recourse in the event that costs are ordered
● here D has established a prima facie case that P has no assets. P has not established that it will be able to pay costs, that D has no arguable case, or that P’s case would be stifled.
○ so an order for costs is appropriate.
● the quantum of security ought to be related to the expected costs.
Ratio
● on application for security for costs, once the D has established a prima facie case that the P lacks exigible assets, the P is required to respond with evidence to establish that
○ it will be able to pay the D’s costs
○ the D has no arguable case
○ ordering the secuirty will stifle the P’s action
● quantum of security is related to the estimated costs
Nazmdeh v. Spraggs, 2010 BCCA
Issue
● When may a lawyer be ordered to pay costs personally?
Facts
● P’s lawyer TS is appealing from an oder holding him personally responsible to pay the costs of applications
○ says this shouldn’t have been made since there was no finding that his conduct was reprehensible
● P was ordered to disclose certain particulars, but responded insufficiently
○ the failure to resppond to the interrogatories in any fashion at all is an insufficient response to a requrest for particulars
○ counsel simply ingored the interrogatories
○ D had to bring a motion, so costs were incurred without reasonable cause and through the delay and neglect fo the lawyer, warranting costs ordered against the laywer personally.
Analysis
● lawyer says that you shouldn’t have costs awarded against cousnel personally unless there is a findnig that the conduct was reprehnsible
○ and that there was no evidence to support the conclusion that the lawyer was personally responsible for the defiicent response
■ the lawyer says he could not respond to this without breach of solicitor/client privilege.
○ LSBC agrees the standard ought ot be conduct that is so reprehensible as to be an abuse of court process/contempt of court
■ important to keep the distinction between the role of the Law Society and the role of the court
■ up to Law Society to regulate professional behaviors
■ lower standard increases the risk of conflict between interst of lawyer and interest of client.
● the court retains the power to award costs against the lawyer under inherent jrusidction
● the court may order a lawyer to pay costs personally where he has caused costs to be incurred without reasonable cause, or has caused costs to be wasted through delay, neglect, or some other fault.
○ so in some cases, delay and neglect may be enough for such an order
○ there is no requirement for serious or reprehensible conduct.
○ the power to order costs agianst the lawyer is idscretionary, and may be exercised on teh Judge’s own volition, at the request of the client, or at the instigation of the adverse party
○ but this power should be exercised with restriant, used spairngly and only in exceptional cases.
Ratio
● the court may order a lawyer to pay costs personally where he has caused costs to be incurred without reasonable cause, or has caused costs to be wasted through delay, neglect, or some other fault.
○ so in some cases, delay and neglect may be enough for such an order
○ there is no requirement for serious or reprehensible conduct.
○ the power to order costs agianst the lawyer is idscretionary, and may be exercised on teh Judge’s own volition, at the request of the client, or at the instigation of the adverse party
○ but this power should be exercised with restriant, used spairngly and only in exceptional cases.
Robson v. Chrysler, 2001
Issue
● how should costs be dealt with under a class action?
Facts
● something about a class apparently
● P says that the Class Proceeding Act sets out that
○ the certification proceeding should not lead to costs, except in rare circumstances (vexatious, improper, exceptional circumstnaces making it unjust to deprive the successful party of costs).
Analysis
● the P’s case is that this is a case where the court should use its discretion to depart from the usual order that costs follow the event, because this case raised novel and complex issues, because there was a public interest in the issues involved, and because the financial reprecussions an order of costs would have on the representtative plaitniff.
● Just because a class action raises a legal issue for the first time does not mean it is a “novel point of law”
● public interest means the class action must have som special sginficaintce or interest to the community at large beyond the members of the proposed class
○ typically where fundamental human rights are in issue
○ or an environmental issue is present.
● since D acted as efefctively and quickly as possible to bring the proceedings to an end, they should get their costs.
Ratio
● in order to avoid an order of costs, the representative plainiff needs to show a truly novel claim or a public interest which has some special significance or interest ot the community at large.
Exclusive Flor Sales Limited v. Fipke,
Issue
● how can a reasonable offer to settle affect the award of costs?
Facts
● P sued, D coutner sued, P won
● P had offered to settle prior to judgment by way of mutual abandonment of the claim and coutnerclaim, which was not accepted
● P wants double costs for all the steps taken after the offer to settle
Analysis
● D says that merely nominal offers should not be enough to support an award of costs
○ if you only make the offer in order to get double costs and its not truly an offer the D would ever accept, you may not get the double costs
○ but in this case, the offer wasn’t nominal- clearly offering to drop both sides would have been great for the D.
● D says well look I had a really good case
○ nope, you didn’t, actually it sucked as shown in the judgment
● D should have setteld this case on the best possible terms following discovery, since it was clear he was going to lose
○ he should have accepted the P’s reasonable offer
● So P is going to get double costs from the date of settlement onwards.
Ratio
● if a reasonable offer is made and refused, then double costs may be awarded from the time of offer to the time of judgment
● nominal offers made only to get double costs don’t count
○ the offer must be one the adverse party reasonably ought to have accepted.
Martin v. Lavigne and Neufeld (Costs), 2010 BCSC 15610
Issue
Facts
● M claimingdamages against L in nuisnance and N in defamation
● NL offered to settle for 10K prior to judgment, while M countered with 125K
● NL eventually wins, so seeking double costs
Analysis
● court has the discretion to order double costs where a party has made an offer the other ought reasonably to have accepted.
● court should consider the reasonableness of the offer, the relationship between the terms of the settlement and the final judgment, the relative financial circumstnaces of the parties, and any other appropriate circumstances
● the purpose of this is to encourage settlemtn by penalizing parties who decline reasonable offers, and to discourage the prosecution of doubtful cases.
● where it is clear tha tthe offer would have saved the parties the costs of a number of pre-trial motions, as well as the costs associated with a week-long trial
● should the P have accepted the offer?
○ teh offer followed the completion of discovery, so D says P had all the necessary information
○ P says it had yet to receive particulars, some of D’s defences were alledgedly indefensible, and D continued to resist providing particulars
● The pleadings were set and legal research ought to have shown P that any claims against L were bound to fail
● 10K is not a nomnial offers
○ nominal offers don’t count
● P says D’s lwayer was often obstructive, refused to give particulars, and so on
○ the behvior of counsel can be taken into account when considering costs
● relationship between the offer and the final judgment
○ the offer was much better than what P actually got, but much less than P expected
○ it should nonetheless have been clear to P that damages would be much less than 125K, and it should have been obvious that there were no grounds for nuisance at all
○ the 10K may well have paid the P’s costs
○ P sasy the large gap between the 10K and the 125K should be considered a mitigating factor.
○ na, 125K was totally unrealistic
● relative financial circumstnaces of the parties
○ not really clear. N is a union employee, L and M are retired.
○ without more evidence this is not a determinative factor
● P says that awarding double costs would be a detriment to strata owners challenging the actions of strata councillors
○ this is baseless, since the action in nusiance was unrelated to the actions of L as a councillor
○ plus, the aim is settlement, and that applies here as well
● so the offer made by D should not have been ignored, and doing so cost everyone a lot of money.
● D will get double costs
Ratio
● court has the discretion to order double costs where a party has made an offer the other ought reasonably to have accepted.
● court should consider the reasonableness of the offer, the relationship between the terms of the settlement and the final judgment, the relative financial circumstnaces of the parties, and any other appropriate circumstances
● the purpose of this is to encourage settlemtn by penalizing parties who decline reasonable offers, and to discourage the prosecution of doubtful cases.
Tab O
9-1 (old 37B) Offers to settle
● the fact that an offer to settle has been made is not to be disclosed to the court or jury until judgment is made, and an offer is not an admission of anything
● the offer to settle may be taken into account during the order of costs
○ the court may
■ deprive a party who should have accepted the offer of any costs that they would otherwise have been entitled to after the offer was made
■ double costs for steps taken after the offer to settle
■ if the offer was made by D and refused by P, and the ultimate judgment is less than or equal to D’s offer, the court may order the D’s costs for the steps taken after the offer to settle.
○ the court may consider
■ whether the offer to sttle ought reasonably to have been accepted on the day the offer was made or at a later time
■ teh relationship between the terms of settlement offered and the final judgment of the court
● an offer does not expire just because a coutner offer is made
■ the relative financial circumstances of the party
14-1 (old 57) Costs
● Costs are set out in Appendix B unless
○ parties consent to a differ amount
○ court finds special costs
○ court finds lump sum costs
● On an assesmment of special costs, the registrar must allow those costs that were proper and reasonably necessary to conduct the proceeding, keeping in mind
○ the complexity and novelty of the proceedings
○ the skill, knowledge and repsonsibility required of the lawyers
○ the amount inovlved in the proceeding
○ the time reaosnably spen in the proceeding
○ the conduct of parties that shortened or unnecessarily lengthened the proceeding
○ the importance of the proceeding to the party against whom costs is being assesed
● any judge or office before whom costs are assessed counts as the “registrar”
● in assessing costs, the resgistrar must decide
○ which expenditures were necessary or properly incurred and allow a reasonable amount for those disbursements
● judge may tell registrar that any item of costs be allowed or disallowed
● normally costs to follow the event
○ costs of a proceeding must be awarded to the succesful party unless ordered otherwise
● in small claims court there is no entitlement to costs other than disbursements (filing fees) unless the court finds that there was suffiicent reason for bringin gthe proceedings in the Supreme Court and so orders.
● If an appliation is granted, the party who brought the application is entitled to costs of the application if that party is awarded costs in the end; but the party resisting the application never gets costs even if he eventually wins
● if the applicaiton is refused, the part wh obrough the application never gets costs, but the party who resisted the application gets costs if he eventually wins the trial
● costs may be awarded from any improper act or ommission
● court may award costs for the whol or part of the proceeding
● costs may be set off against judgment
● if D1 owes P costs, and P owes D2 costs, court may order that D1 pay D2 directly
● costs may be set out in a default judgment
● if the court finds that a party’s lawyer has caused costs to be incurred without reasonabel cause, or has caused costs to be wasted through delay, neglect, or some other fault, the court may order that the lawyer pay the costs himself, or that the lawyer indmenify the client, or that the lawyer pay some of the costs to the client.
Appendix B
● sets out cost scheduling
● Scale
○ 1 for ordinary difficult - 60$ unit
○ 2 for above ordinary diffulty or importance 80$ unit
○ 3 for unusual difficulty or importance - 100$ unit
● in fixing the scale, the court show take into account
○ whether difficult issue of law, fact, or construction involved
○ wehtehr the interest is of general importance or importance to a class or body of persons
○ whether the result of the proceeding effectively determines the rights and obligations as between the parties beyond the releif that was actually granted or denied.
● court may also order a fixed costs award, or a lump sum.
● if something is done improperly or unnecessarily by or on behalf of a party, the court may disallow costs, or order the party to pay the costs incurred by the other party
● then there is a tariff of costs setting out the number of units that may be claimed per task
Class Proceedings Act: ss. 37 & 38 (costs provisions)
● costs may only be awarded with respect for an application for certification of a class proceeding if the application was vexatious, frivlous, or abusive
● or there were steps taken to delay or incur costs or any other imporper purpose
● or there are other circumstnaces that make it unjust to deprive the succesful party of costs
● only representative plaintff is liable for costs, not the other class members, except in as much as tho e class members may pay costs with respect to the determination of their individual claims.
● an agreement between the class cousnel and the representative P must be in writing, and state the terms of payment, an estimate of the expected fee,and the method the payment is to be made
○ this agreement must be approved by the court
● the money owed cousenl is the first charge on any monetary award
● if the agreement is not approved or the amount owing is in dispute, the court may
○ deterine the amount owing to the solicitor in respect of fees and disbursements
○ direct an inquiry to determine the amount owing
○ direct that the amount owing be determined in another manner
○ make any other or further order it considers appropriate.
|Trial Procedure and Experts’ Reports |
1. Topics:
Notices to Admit
Judicial Admissions
● dealt with under rule 7-7
● they are an exception to the hearsay rule because they are usuall considered to be a statement against interest
● they are made either in pleadings or in a response to a notice to admit
● less formal admissions may be made in a document or on discovery
○ indeed one of the key pruposes of discovery is to obtain admissions that may be used at trial
○ may be something a witness said
● admissions are a procedure for ascertaining facts
○ its about committing the other party to a version of facts that you can put into evidence
● notices to admit are intended to focus the trial by taking things that are not at issue out of play, and to focus in on the true matters at stake
○ if you fail to make reasonable admissions you may be subject to costs
○ you cannot force someone to admit, but if they are unreasonable in refusing to admit, the court may award costs
○ just because you lost on a fact, doesn’t make your failure to admit unreasonable
Notice to Admit
● set out as a form in the rules
● first, you ask the other side to admit a series of facts
○ then they respond by either admitting, refusing to admit because they have no knowledge, or denying the facts and explaining why
■ there must be enough contained in the refusal for the judge to evaluate whether the refusal to admit was reasonable
■ these should be short, to the point
■ they should not require the opinion of experts unless you think experts have already been consulted- otherwise it seems premature
■ should not relate to legal questions.
● second, you attach documents and ask the other party to admit their authentiicity
○ they should agree that “This is a true copy of the original”
○ the point being to avoid a lot of time spent formally proving the admissability of documents
○ as a practical matter, good counsel will typically agree to put together a common book of documents so the judge can deal with everything at once
■ all the documents are put together and marked as agreed upon for the purpose of admissibility.
● admissions only apply to the particular proceeding- facts admitted in one case are not admitted in others
○ this is to avoid people failing to admit out of a fear of future litigation
● you may apply to withdraw an admission
○ either a judicial admission or an informal admission
○ you must show that it is in the interests of justice that the admission be withrdawn.
■ the other side may be reasonable and allow you to withdraw your admission, particularly if they think you would succeed on an application.
● admissions are evidence, and 7-7 says if you make an admission, you can use it on any application within the proceeding, including an application for judment
○ for example, if someone files a defence admitting a fact that is fatal to their defence, you could file for summary judgment.
Expert reports
● rule 11 of the rules, and in the BC Evidence act
● the purpose of expert evidence is to provide an opinion which can assist the trier of fact in an area that is outside the normal experience
● the opinion is admissible only as an XW report
○ the basic unit of expert testimony is the report, not viva voca testimony
○ the XW may be crossed on the report
○ you can only examine your own XW in order to clarfiy terminiology, not lead new opinions
○ the adverse party may ask to cross the XW, but should give notice ahead of time or they may be outof luck
○ if that party does not wish to cross, you may not need to bring the XW at all, and can just file the rpeort
● the new rules have added some form requirements
○ they must certify they know their duty is to the court and that they will follow it
○ they must explain the facts and assumptions on which their opinion is based
■ important that you tell your XW what to base their opinioins on, and then make sure you can prove these facts and assumptions.
○ you must specify the use of XW in your case planning order, o ryou may not be allowed to use them
■ the court may limit the number of XW and what they can be called for
■ the case planning order is aimed at controlling the length of trial, the number of witnesses, and so on
● you may request the contents of the XW preparation file if you giv 14 days notice
○ this may make it obvious that the lawyer is massaging the opinion or changing assumptions
● important for counsel to explain to the XW the nature of their role and make sure you read a draft before they finish their report
● XW need to say that they are the ones responsible for the contents of their report.
● Experts must be
○ objective
○ independent
○ integrity
○ and not
■ partisan or argumentative
■ attempting to find facts or law.
● XW risks taking up an undue amount of importance
○ we want to walk the balance between helping the judge resolve a complicated issue without having the XW suck up all the air out of the room
● in the new rules there is a greater emphasis on the availability of court appointed and joint experts
○ it may be better for the parties to agree on a single expert
○ or for the court to just pick an expert, but this undermines the adverserial system
(c) Evidence and procedure at trial
2. Readings:
(a) Walker: 477-485
Expert Witnesses: Introduction
● Usually opinion evidence is not admissible: witnesses testify as to their observations and the trier of fact decides what to make of tehir evidence
● but some evidence cannot be understood without an expert to make sense of it.
● Rules typically require disclosure of:
○ names, qualifications, susbtance of expert opinion so parties cna prerpare for trial in a more efefctive and informed manner
● leading cases criminal, but same considerations apply
Expert Witnesses: Supreme Court of Canada Jurisprudence
● Mohan is the leading case on XW for both criminal and civl trial
○ aim is the TJ as gatekeepr
○ TJ must assess “threshold reliability” of XW prior to allowing it in
● Four factors
○ relevance
○ necessaity
○ absence of any other exclusionary rule
○ proper qualifications
● Then do probative versus prejudicial - Seaboyer.
R. v. Mohan 1994 SCC
Issue:
● what are the rules surrounding admissibility of expert opinion evidence
Analysis
● Four criteria
○ relevance
○ necessity in assisting the trier of fact
○ absence of any exclusionary rule
○ properly qualified expert
● Relevance
○ merely determines the logical revelance of the evidence, not a pre-trial on the merits.
○ the exclusion of evidence that is not locially relevance is more properly regarded as a general exclusionary rule, but still important
○ particularly accute since evidence put forward by XW tends to be given a lot of weight by the jury
○ consider
■ is the evidence likely to assist the jury or is it likely to confuse the jury?
■ is the jury likely to be overwhelmed by the “mystic infallibility” of the expert?
○ XW carries a real danger that the jury will use the opinion as a measure of the probability of the accused’s guilt or innocence, and tehreby undermine the presumption of innocence and erod the value served by the reasonable doubt standard.
● necessity in assissting the trier of fact
○ the XW function is to provide the TJ and jury with a ready-mady inference whihc the triers of fact could not formulate due to the technical nature of the facts.
○ more than merely helpful, but not excesively strict
○ it needs to provide information which is likely to be outside the experience and knowledge of a judge or jury
○ evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technicla nature
○ ordinary person would be unable to form the correct judgment about the evidence.
○ if the TJ or jury could reach a correct conclusion wihtout the aid of the XW, the XW will not be allowed to participate.
○ always cogniscent of the danger of interfering with the role of the jury.
○ while no longer a general rule about opinion evidence going to the ultimate issue, that still may be worth considering as a factor.
● Absence of any Exclusionary Rule
○ may exclude otherwise admissble XW if it violates other exclusionary rules- like if it goes to bad character
● Propertly qualified expert
○ the XW must have shown to have aquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify.
○ novel theories or techniques will be given special scrutiny here, as well as speical scrutiny in terms of whether it is truly essential.
Ratio
● XW must be
○ logically relevent
○ necessary for the trier of fact to come to the correct conclusion about evidence due to its technical nature
○ otherwise admissible/no other exclusionary rule
○ properly qualified.
Notes on Mohan
● Further scrutiny on “novel scientific methods”
○ the USSC took an approach based on “scientific validity”, not generfqal acceptance.
○ SCC has set out some useful factors:
■ testing
■ peer review and publication
■ standards for evaluation and rates of error
■ acceptablity within the scientific community
○ previous valid methods may become invalid (post-hypnosis testimony)
● Much criticism of expert witnesses
○ XW retianed in favor of a particular party
○ there is a tension between XW and realities of adverserial system
○ danges is that XW becomes an advocate.
● Judges need to be particularly wary of XW in criminal matters, given the stakes.
○ factors to consider
■ reliability of XW and whether XW is testifying outside of expertise
■ reliability of scientific theory including factors set out above
■ whether XW can relate his or her opinion to a thoery or technique that is testable
■ whether there is serious uncertainty about the sceince in quest
■ whether the XW has considered alternative explasnations of the Data
■ whether the language and strength of conclusion is appropriate given the degree of certainity in the underlying science
■ can the XW express the opinion such that the trier of fact can reach an independent opinion
● Limitations on Experts
○ statutes often limit the impact of XWs on civil trials
○ Onatrio has set limit for number of XW without permission from the court.
● Expert evidence and sustainable justice
○ issues of cost and efficiency may be undermined by injudicious use of XW
○ XW may increase accuracy but at a significant expense.
○ may need several XW per trial given the complexity and level of specialization often involved.
○ reforms suggested
■ advanced notice setting out name, address, qualifications, content of report.
■ may require codes of conduct, viva voca testimony, panels of experts to be questioned together, etc.
(b) Casebook:
Skillings v. Seasons Development Corporation (#1 & #2), p. 421 and p. 422
Issue
● What is something deemed to be admitted? Can a deemed admission be withdrawn?
Facts
● two judgments
● P say they were damaged by a withdrawal of lateral support to their land
○ folowing D’s excavation next door
● P sent a seriese of notices to admit
● D said it was unable to admit any of the facts at the time
● P reminded D that it had 14 days to specifically deny, or they will takea motion to judge
○ D didn’t respond
● so P says they ought to be deemed to have been admitted.
○ and if they are admitted, D is clearly guilty.
Analysis
● D’s letter didn’t deny any of the notice to admit, just said it would answer later
○ this is not a proper response to a notice to admit
● the TJ in the first judgment says he has no choice but to find that these facts were admitted
● because the facts admitted make out the claim, he initially judges in favor of the Ps.
● but then D asked that the judgment be set aside because the formal order had not yet been etnered, because the palintiff’s notice to admit was irregular, or because the D would like to withdraw the deemed admissions.
● the main part is D wants to withdraw the deemed admissions
● generally a judicial admission should be allowed to be withdrawn if it is in the interests of justice
● it would be unjust for the D to be denied his change to defend that action on the merits
● so it is in the interests of jsutice that the D should be allowed to withrdrawn
● and in the event that the P wins, all the costs are to be paid by D in terms of wasted time/money
Ratio
● once P files a notice to admit, the D has 15 days to specifically deny the admissions, or they may be deemed admitted
● D may withdraw a judicial admission if it is in the interests of justice
● Crerar seemed to think this was a poorly judge case- the judge shouldn’t have essentially granetd default judgment just because the D failed to respond in time.
● good thing the order was not yet entered, because if it was the judge is functus and has no more power
● the judge in this case actually made an error of law
○ he thought it was mandatory that if a repsonse is not made to a notice to admit, he must deem the admissions accepted
○ but in fact, the wording of the law says “unless the court otherwise orders”, signally discretion
Vancouver Community College v. Phillips Barratt, 1988 BCSC
Issue
● What kind of interactions may counsel have with its own expert witness?
Facts
● VCC Is claiming breach and negligence ffrom the architects and engineers from work done of a renovation projection in VCC Downtown
● PB denies all liability, that it was completed on time and within budget and that all space requirements are met
○ PB says VCC got all that could be obtained for the money spent
○ counterclaims for unpaid fees
● VCC used 4 XW in this case to show cost overrun, space shortage, and other dificiencies
○ most of the XW evidence is based on the opinion of A.
○ in a preliminary hearing the J found A to be partisan, argumentaive and not objective, and basically not credble
Analysis
● one of the main problems with A is the way his report was prepared
○ it was revised multiple times with considerable advice and commentary from counsel for VCC
○ many revisions made during discussion with counsel
○ experts should hav help writing their reports to ensure they meet evidentiary requirements, but they must not change the XW’s independence, objectivity and intergrity
○ these boundaries were not observed
○ A agreed to substantially change his opinion in favor of VCC, making his opinion hopefully partisan or unfair
■ basically amount to VCC’s argument trumpeted through the mouth of an expert.
■ all criticisms of VCC were deleted
■ he used statistics that were not available at the time the project was planned
■ changed many assessments susbtantially in favor of VCC
■ used novel language to support VCC’s argument, then tried to impose this language on other witnesses in the case
● so warped is A’s evidence that it is devoid of all credibility
○ and since the rest of VCC’s XW depend on A’s assemsents, they are hopelessly tainted as well.
○ the other XW also received loaded data from counsel for VCC
○ no crediblity their either
● a furthre XW was not actually qualified in the area he was opining on
● the XW tendered on behalf of PB had none of these problems, were vastly more credible, and their opinion is accepted
Ratio
● counsel need to be very careful coaching XW
● you can help them draft their documents into an appropriate form, but you should not have them craft their argument to support your case at the expense of their own.
Surrey Credit Union v. Willson, 1990 BCSC
Issue
Facts
● SCU wants to recover against accountatns (A) who were in charge of auditing N
○ SCU bought shares on N on the strenth of the financial statements prepared by A
● SCU says the statements prepared by A did not adhere to auditing standards within the profession
● XR is an XW who will give evidence on the standards of the profession, of which he is a member, on the performance of an audit
○ he is properly qualified
● A objects to XW opinion
○ it contains opinion evidence outside XW expertise
○ opinion is basically argument rather than opinion
○ contains conclusions of fact upon evidence that is up to the TJ to determine
○ contains large passages which are irrelevant, superflouous or not helpful
○ contains many passages which are neeither comments nor opinoins on teh SoC, which is the area in respect of which the author is tendered as an expert
○ contains opinion from XW that A was negligent, which is the very issue this trial is supposed to prove
○ report is voer 200 pages
Analysis
● many of these criticisms are well founded
○ the report is so defective ti cannot be admitted int its current form
○ this isn’t to impeach XR or counsel
● XR has been called so that an expert in the field of auditing can help the judge reach a conclusion on the fact
○ XR is able to tell the court something of the nature of the standards imposed upon auditor sin their duties, which non-auditors are not qualified to give
○ P says A did not meet those standards, and is using XR to establish those points
● So XR may give opinion about those standards
● XR may also give an opinion based upon facts or assumptions whether certain acts or ommissions would breach those standards
○ but he is not entitled to give an opinion as to the legal duty imposed by those standards or whether the breach amounts to neglgience
● XW may take two forms
○ statement of opionin based on facts, or statement of opnion based on hypotheticals
■ the basis of opinoin must be made clear
○ XW may not find facts or law
■ this is up to TJ
○ XW should not argue the case, since this is the job of counsel
● purpose of XW is to enable the TJ to understand evidence that is outside the general knoweldge or ordinary human experience
○ XW should be tenedered in an objectieve and impartial manner so the court can put some reliance on it.
● XW get confused because they often don’t understand their role
○ and they often describe their assumptions in minute detail
○ only need to expalin assumptions so that the adverse party can try and undermine them
● XW will be inadmissible when it is just a reworking of a party’s argument
○ its ok for counsel to help the XW shape their arugment, but they shouldn’t chagne it substantially
○ counsel should fully explain to the XW the limits of their opion so the XW understands their role.
● XW opinion should be as short as possible
○ the more prolix the more likely it is to confuse or complicate than clarify
● The report is absically ok, it has just gone outside the realm of expert opinion and moves into areas beyond the XW expertise.
● Guidelines for XW
○ may give evidence as to professional standards if relevant
○ may offer opinion on whether facts or assupmtions provided conform to professional standards
○ where he has given an opinion on given facts, he must disclose those facts and how they came to his attention
○ when he has made assumptions he must explain the basis on which those assumptions were made
○ if contrary XW are put to him, he may explain why he believes his opinion should prevail
○ he may not make conclusive findings of fact on issues in dispute and may not offer an opinoin as to how the law should apply to those facts
○ he may not given an opinion on the merits of P’s claim.
Ratio
● XW must be carefully instructed as to their role
● they must be as concise as reasonably possible
● the may given an opionin based on facts or hypotehtical, but msut set out where these came from
○ if the XW is making assumptions, he must explain them
● he may not make findings of facts on dispute or attempt to apply the law to those facts
● he may not give an opinoin on the merits of the claims.
Kroll v. Eli Lilly, 1995 BCSC
Issue
● what are the rules surrounding notice where an XW is rebutting another XW?
Facts
● medical negligence case
● P objects to oral testimony from the DXW commenting upon the evidence provided by PXW
○ P says DXW should have given 60 days notice for this opinoin
○ no such notice of DXW response to PXW was given.
Analysis
● old rules were that notice requirements did not apply to the oral testiony of an XW who was responding to or rebutting XW adduced by other side
● P says under new rules if an XW is essentially a critique of another XW, notice is required.
○ this position would have the effect that where XW reports are filed close to the deadline, it would be impossible for any response to be out in time.
○ the rules are not intended to reprvent XW from responding to one another.
○ it may desirable to give each other notice, and this will often be agreed on by counsel, it is not in the rules
Ratio
● while 60 days notice of the contants of an XW opinion is ordinarily required, this does not apply to opinions about other XW
○ you don’t need to give notice where XW is responding to or rebutting another XW.
Yewdale v. ICBC, 1995 BCSC
Issue
Facts
● Y is the in a claim brought by DG
○ DG was struck by Y
○ TJ found Y fully liable, and judmgent was 4.3 million
○ Y’s liability capped at 1 million, so Y is bankrupt
● Y is claiming negligence, breach of good faith, and breach of contract against the insurer ICBC, its counsel, and her counsel,
○ she was indemnity and punitive damages
● Y has a series of XW reports which ICBC et al take objection to
Analysis
● Gnereal rule for XW
○ opinion evidence only admissible where it would be of assistance to the court in deciding a question requiring expertise
■ so opinion evidence relating to matters within the experience of the trier of fact may not be admitted.
○ if XW opinion permitted, teh XW must stay within the realm of expertise.
○ XW may not displace the role of the trier of fact
■ although no strict rules against going to the “ultimate issue”
■ but XW should avoid making findings of fact on issues in dispute
○ XW must not become an advocate
■ must leave for the court the required conclusions of law
■ XW should express opinon in objective and impartial manner
● XWC report is inadmissible
○ provides inferences of fact based on the discovery transactips
○ states what he thinks is the appropriate SoC
○ then makes a series of judgments as to what D counsel should have done and whether it was appropriate.
○ puts TJ in the role of the court of appeal- assessing whether the conclusion is correct
○ so wholly inadmissible
● XWR repor is inadmissible
○ same problem, though to a slightly lesser degree.
○ Sets out the SoC applicable then reaches legal conclusions about whether he discharged that duty
○ but court can make this determination with assistance from counsel
● XWC Report
○ he is an insurance adjuster and claim manager
○ report a collection of self-evident staeemnts, permissible statements of industry standards, and legal conclusions which are the province of the court
○ plus, his narrative of the facts contains various inferences (some of which are incorrect) and legal conclusions.
■ these are conclsuions that are up to the court to draw
○ so even though small parts of the report are OK, it is clearly inadmissible
● XWCa Report
○ very unusuaul
○ gives poitns as to what might have been useful for counsel to do
○ many statements of the obvious
○ self-evident statemetns don’t much help the court
○ so it is rejected, not because it is offensive to the rules for XW, but because it is self-evidnet and of no assistence
● XWS
○ calculated the costs of future care for G at the trial.
○ may be useful in assessing whether the estimation of damages made by counsel was reasonable
○ so it’s impossible to say it will be totally irrelevant, so it will not be rendered inadmissible at that time.
Ratio
● illustrates the difficulty of calling lawyers as XW
● constantly tempted to make findings of law or stating the obvious.
7-7 (old 31) Admissions
● A party of record may submit a notice to admit rquesting the other party to admit for the purposes of the action the truth of a fact or the authenticity of a document
○ it is deemed to admit unless the other party specifically denies the truth of the fact or expalins why it cannot make the admission or claims rpivilege, and sets out reasons for the refusal
○ 14 day time period
● if a party unreasonably rufses to admit the truth fo the fact or the authenticity of a document, the court may order the party to pay costs and other appropriate penalties
● you may only withdrawl admissions or deemed admission with leave of the court
● an application for judgment may be made to the court using admissions made in affadavit, pleading, examination for discovery, in response to a notice to admit, or deemed at admissions
○ then the court can rule without waiting for other questions if in the interests of the Supreme Court Rules
○ this will be available where the law is clearly defined and the facts are no longer in dispute, the finding will save litigation, and the decision will save susbtantial costs in narrowing the issues left for determination.
9-2 (old 35) Settlement Conferences
● the court may order that parties attended in private to explore all possibilities of settling
● the proceedings must be recorded, but are only available with a court order
● the judge presiding at the settlement conference cannot be the same one presiding at trial.
12-1 How to Ste a Trial for Hearing
● to set a proceeding for trial a party must file a notice of trial in the registry setting out the place of trial
○ then must serve on all parties of record
○ other parties have 21 days to request a case planning conference or apply to have the trial rescheduled
○ the trial will be heard on the date appointed by the notice of tiral, or as soon after as is convenient to the court
● court may adjourn, fix the date of trial, dfix the date of trial ofa n issue, or order that a trial take precedence over a nother trial.
● each party to a proceeding must advise the registry if the proceeding settles, or if something happens that would likely impact the estimated length of the trial
12-2 Trial management conference
● must take place 4 weeks before schedules trial date, and is conducted by a judge
○ each party represented or accessible by telehpne or othr means.
○ proceedings recordeered
● Judge sets a plan for how the trial will proceed, including admissions of fact, admission fo documents, time limits on examinatin/cross examination
● may make other orders including summary of evidence, directing evidence be presented by affidavit, various other orders
● basically aimed at ensuring everything is reading and all the trial proceedings are proportionate.
12-3 Trial record
● party filling trial notice must file a trial record containing all the pleadings, teh partiuclars served undera demand, together with the pdemand made, teh case plan order, and any other documents or ordres required.
12-4 Trial Certificate
● each party of record must file a trial certificate at least 14 days but not more than 28 days before trial
○ containes
■ statement that the party will be ready to proceed on the trial date
■ statement certifiying all dsicveory has been complete
■ current estimate of the length of the trial
■ statement that a trial mangement conference has been conducted
● must file with registry and serve on all parteis of record
12-5 (old 40) Evidence and Procedure at trial
● does not apply to summary trials
● no evidence and insuffiienct evidence applications
○ D may apply to ahve the action dismissed on teh grounds of no evidence once P has made its case
○ D may make this application, and if it loses then choose to call evidence
○ D may also make an application taht there is insufficient evidnece (rather than no evidnece), but if it does so, may not later call any evidence
● documentary and other eivdence
○ by serving a notice 2 days before trial a party of record may require the other arty to bring any document or physical object in the evidnece or document lists
○ no document or evidence may be brought to trial unleass at least seven days before trial the parties of record have been given an opportunity to inspect it.
● adverse witnesses
○ rules apply where a party wishes to call an adverse party or an employee/agent of an adverse party as a witness
■ must give notice at least7 days in advance
■ court may set this aside if the adverse party can’t produce the witness, the eivdnece ofthe person is unnecessary, or it would create harrdship for that person.
○ if the person fails or refuses to show up and answer questions, the court may enter judgment in favor of the person calling the witness, adjounr the trial, make an order as to cost, and other orders which further objectives of rule.
○ adverse party witnesses may be corss-examined generally by opposing counsel, then friendly counsel may cross them but only on issues raised by opposing counsel.
● rules applicable to all witnesses
○ must testify orally
○ must be listed in witness use
○ counsel may be permitted to
■ use leading questions, referring to prior statements, cross examine the witness
○ any party maycontradict or impeach any witness
○ subpeonas may be filed and erved
○ party of records may required third parties to bring documents and phsyical objects to trial , but the subpeona must be clear as to what these things are
● depositions may be given by transcript or video rcording, but the witness may also be called to testify orally
● evidence from examinations for disvoery may be tendered as evidence by adverse party as against the person being examined (hotile witness).
● attendance of a person whose evidence was taken on examination for disovery may be required
● pre-trial examination of a witness may be used to impach the testimony of the wtiness as trial, or if it is neecssary in the interests of justice becaues
○ the person is dead
○ the person is unable to attend and testify because of age, infirmity, sickness, or imprisonment
○ the person is out of the jrusidction
○ the persons’ attendance cannot be secured by subpeona
● wherever part of a pre=trial examination or discovery evidence is tendered, the court may examine the whole of it, and use the whole of eivdence if it is necessary to make sense of the part.
● transcripts of other proceedings may be used if the person is dead, infirm, etc.
● parties may use interrogatories as answers or part of an answer, but the court may look at the whole if it is necessary to undertand the part
● On application of a party of record at or before trial,a judg may order evidence in chief of a witness may be furnished by affidavit
○ the affidavit must be served on all parties of record at least 28 days before the hearing
○ people may be called for cross=exiamnation on their affidavit
● various trial procedures
○ court may order one or more questions of fact or law be tried and deterined before the others
○ different questions of fact may be tried by different odes of trial
● the party on whom the onus of proof lies opens his or her case before giving evidnece
○ at the close of this case, the opposite party may open his case if he intends to lead evidence
○ then the party who began may address the jury, then the opposite party may address, then the starting party gets a reply, and the court may choose to give the opposite party a further reply to a point raised by the starting party’s reply
○ if the D is claiming against D2, D2 goes, then D1
● Court may order tha submissions be of limited length or be in writing.
12-6 Jury Trials
● trials generally are heard byt he court without a jury
● trials MUST be held without a jury for
○ adminsitration of estate, dissolution of partnership, resolution/foreclosrue of a mortgage, sale and distrbution of proceeds of property subect to lein, etc..
● a party may require that the trial of an action be heard by a court with jury by
○ filing and serving ntoice within 21 days of the notice of trial but at least 28 days before trial
○ and by paying to the sheriff a sum suffiicent to pay for the jury and jury process
● except in cases of defamation, false imprisonmnet, and malicious rposecution, a party on whom a notice of jury tial has been served may apply that the case be heard without a jury because
○ the issues require prolonged examination of documents or accounts or a scientific/local investigation that cannot be conveniently made with a jury
○ the issues are intricate or comples
○ or the extra time and cost of a jury trial would be disproprotionate for the amount at stake.
● if after the trial the jury answers some but not all of the questions, or if the answers are conflicting, the action must be retried
○ may be able to retry only some of the claims
● if the jury fails to reach a verdict, the action must be retried
○ a trial with a jury being retried may be continued without a jury, if the party who wanted a jury consents
○ if the party who wants a jury acted badly causing the need for a retrial, the averse materials may choose to continue the trial without a jury
11-6 & 11-7 (old 40A): expert reports & expert opinion evidence at trial
● an XR that is tendered as evidence must be signed by the expert, include certification that XW understand his role, and set ou t
○ XW name, address, area of expertise
○ qualifications
○ instructions provided to the XW in relation to the proceeding
○ nature of opinion sough and how it relates to the issue in the proceedings
○ the XW opioin on those issues
○ the XW reasons for his opioin, including
■ description of factual assumptions, any resarch conducted, and a list of every document used to establish that opinion
● Proof of qualification
○ assertion of qualification is prima facie evidence of qualification
● report must be served on every party of record at least 84 days before the scheduled trial
● A responding report to an XW must be served on every party of record 42 days before trial
● if XW changes mind, must prepare a supplementary report ASAP, and sever on every party of record
● Upon request, an XW must produce
○ written statement/statement of facts on which the opinion is based
○ a record of any independent observations made by the XW in relation to the report
○ any data compiled by the XW in relation to the reports
○ the results of any tests conducted by or for the XW in the process of forming the opinion
○ the contents of the XW file relating to the preparation of the opinion
○ within 14 days of the trial, or if the request is made within those 14 days, as promptly as possible.
● XW must be informed of the trial date and told he may have to appear.
● a party who wishes to object to the XW opinion must either during the trial management conference and the date that is 21 days before trail (whichever is earlier) record a notice of any objection to the XW evidence.
○ if reasonable notice of objection could have been given but wasn’t, the objection must not be permitted at trial.
● Opinion evidence of an XW may not be tendered at trial unless it has been included in a report that has been prepared and served in accourdance with the rules
● If the other party does not request to crossexamine within 21 days of service of the report, the XW does not need to attend evidence, and the report may be used as evidence (if is admissible)
● a party of record may demand that an XW whose report has been seved attend the trial for cross examination
○ within 21 day of receipt of the report, the adverse party (or any party if the XW is court appointed) may demand that the XW show up to be crossed.
○ but if the cross turns out to be of no assistance, teh demanding party may have to pay the other side or the XW costs.
● an XW may not be called to give oral evidence at trial unless the expert’s attendance has been demanded for cross examination, or if the party who filed the report believes the XW’s attendance is necessary to clarify terminology in the report or otherwise make the report more understandable, in which case the XW testimony is limited to those matters, and that party may not cross examine the XW
● the court may allow the XW to provide evidence during the trial if:
○ facts have come to light and those facts could not have reasonably been learned in time to be included in a report or supplementary report
○ or the non-compliance with the ordinary requirements are unlikely to cause prejudice
■ by reason of an inability for the other party to prepare for cross-examination, or by reaoson of deprivign the other party from preparing evidence in response
○ or the interests of justice require it.
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